U.S. v. Huss, 92-30372

Citation7 F.3d 1444
Decision Date25 October 1993
Docket NumberNo. 92-30372,92-30372
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Allan HUSS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Fred N. Weinhouse, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Steven Jacobson and Kathleen M. Correll, Asst. Federal Public Defenders, Portland, OR, for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before FARRIS, FERGUSON, and THOMPSON, Circuit Judges.

FERGUSON, Circuit Judge:

James Allan Huss (Huss) was convicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Huss was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which imposes a mandatory minimum sentence of fifteen years on those convicted under § 922(g)(1) who have at least three prior violent or drug-related felony convictions. Huss argues on appeal that his conviction cannot stand because, under the Oregon law in effect at the time of his conviction for the predicate felony, he was not prohibited from carrying a long gun, the weapon he was charged with possessing under § 922(g)(1). Huss therefore argues that his conviction is contrary to Ninth Circuit case law interpreting 18 U.S.C. § 921(a)(20) and violates the ex post facto clause of the Constitution.

Huss also appeals his sentence under § 924(e), arguing that two of his prior convictions are not proper predicate convictions. In addition, Huss argues that the district court should have exercised its discretion to depart downward based on the time Huss had already spent in state custody. Huss' final contention on appeal is that the district court erred in denying his motion to suppress evidence.

We affirm the district court on all issues except its sentencing of Huss under § 924(e). We find that two of Huss' prior convictions were not proper predicate convictions, and therefore we vacate Huss' sentence under § 924(e) and remand for resentencing.

BACKGROUND

Huss' residence was searched pursuant to a warrant on July 17, 1991, and law enforcement officers found four long guns, including three rifles and one shotgun. Huss was subsequently indicted by a federal grand jury for being an ex-felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The predicate offense for Huss' indictment under § 922(g)(1) was a 1987 Oregon conviction for burglary I.

On February 27, 1991, the government filed a Notice of Enhanced Punishment. The Notice alleged that Huss' three Oregon convictions for burglary, two in 1976 and one in 1987, made him eligible for enhancement under 18 U.S.C. § 924(e)(1).

Huss filed a motion to suppress, which alleged that the affidavit in support of the search warrant did not provide probable cause for the issuance of the warrant. Specifically, Huss argued that the affidavit did not link Huss to the particular room in the boarding house that was named in the warrant and searched by the officers. The district court denied the motion, finding that the search warrant satisfied the probable cause requirement because it stated with particularity the room to be searched.

Huss also filed a motion to dismiss, arguing that his 1987 burglary conviction did not qualify as a predicate for a conviction under § 922(g)(1) because Oregon law in effect at the time of his conviction restored his civil rights, including his rights to possess long guns. Thus, Huss asserted, his conviction At sentencing, Huss argued that he did not qualify for an enhanced sentence under § 924(e) because his two 1976 Oregon burglary convictions did not count as predicate convictions since his civil rights, including his right to carry long guns, had been restored when he was paroled on both offenses in 1981. Huss also argued that the two burglary convictions were not valid predicate felonies because they were only for aiding and abetting, and that the 1976 burglary I conviction was unconstitutionally obtained. Finally, Huss requested a downward departure based on the time he had already spent in state custody. The court denied all of Huss' claims and found that it had no authority to depart downward to give Huss credit for time spent in state custody. Huss entered a conditional guilty plea, and now appeals both his conviction under § 922(g)(1) and his sentence under § 924(e).

                could not count as a predicate for § 922(g)(1) because 18 U.S.C. § 921(a)(20) excludes convictions for which a jurisdiction has restored civil rights to a felon unless the right to carry firearms is still restricted by that jurisdiction. 1  Huss also argued that a change in Oregon law subsequent to his offense that restricted felons from carrying all firearms, although occurring prior to his release from his sentence, could not be applied retroactively, and that retroactive application would violate the ex post facto clause of the Constitution.   The district court denied Huss' motion to dismiss the indictment
                
I.

Huss argues that his 1987 Oregon conviction for burglary is not a predicate offense under § 922(g)(1) because his civil rights were restored when he was discharged from his sentence in 1990. Huss bases his arguments on statutory and constitutional interpretation. These are legal questions which we review de novo. See United States v. Cardwell, 967 F.2d 1349 (9th Cir.1992).

When Huss was convicted of burglary in 1987, Oregon law prohibited felons from carrying any guns other than long guns. See Or.Rev.Stat. § 166.270 (1987). In an amendment effective January 1990, the Oregon legislature changed the law to prohibit felons from possessing all firearms. See Or.Rev.Stat. § 166.270 (1990). Huss was released on parole in December 1990, ten months after the effective date of the amendment.

A.

Huss argues that under United States v. Cardwell, 967 F.2d 1349 (9th Cir.1992), we look to the state law in effect at the time of the conviction to determine whether a defendant's civil rights have been restored. Huss is correct that we look to state law to determine whether a defendant is a person prohibited from carrying a firearm, as defined in 18 U.S.C. § 921(a)(20). United States v. Dahms, 938 F.2d 131, 134 (9th Cir.1991). If the defendant's civil rights have been restored under state law, including his right to carry the weapon for which he is charged under § 922(g), then he cannot be convicted under § 922(g). Id.

Huss is incorrect, however, that we look to the state law in effect at the time of the conviction. In Cardwell, we held that "in determining whether a restoration of civil rights expressly prohibits firearm possession, the district court must look to the whole of state law at the time of the restoration [of civil rights]." Id. at 1350-51. (emphasis added). The Oregon law in effect at the time Huss' civil rights were restored prohibited felons from carrying all firearms. Therefore Huss was properly convicted under § 922(g)(1).

B.

Huss also argues that the 1990 amendment to Or.Rev.Stat. § 166.270 increases "The ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' " Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867)).

                his punishment for his 1987 burglary conviction by prohibiting him from carrying long guns upon his release from prison, a prohibition that did not exist at the time he committed the burglary. 2  Huss contends that this alleged increase in punishment violates the ex post facto clause of the Constitution.   U.S. Const. art.  I, § 9, cl. 3;  art.  I, § 10, cl. 1.   Huss then asserts that the Oregon law that applies to him is the 1987 version, which does not prohibit ex-felons from carrying long guns.   Under the 1987 law, Huss would not be a person prohibited from carrying a firearm under § 921(a)(20), and thus could not be convicted under § 922(g)(1).   See Dahms, 938 F.2d at 134-35
                

The difficult question posed by Huss' claim is whether the revocation by Oregon law of his right to carry long guns is "punishment" for his prior crime. Huss relies on United States v. Davis, 936 F.2d 352, 356 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992), in which the Eighth Circuit found an ex post facto violation in similar circumstances. When Davis was convicted, "his punishment consisted of, inter alia, at least a partial deprivation of his civil rights only until his discharge." Id. A law passed after Davis' conviction prohibited ex-felons from carrying pistols for ten years after their release. The Eighth Circuit concluded that this increased Davis' punishment for his crime after the date of his conviction, and thus was an ex post facto violation. See id. The Eighth Circuit's conclusion appears to be grounded in the finding that, prior to the passage of the gun control law, Davis had an absolute right to possess pistols upon his release from prison. The law thus deprived Davis of a right to which he was previously entitled.

As the government points out, the Seventh Circuit found no ex post facto violation in another § 922(g) case with similar facts. See Roehl v. United States, 977 F.2d 375, 377-378 (7th Cir.1992). Essential to the court's reasoning in Roehl was that in Wisconsin, prior to the enactment of the law restricting ex-felons from carrying firearms, there was no Wisconsin statute or constitutional provision either granting or restricting the right to carry firearms. Thus, the court concluded, "[Roehl's] convictions deprived him of no right in that respect and no such right could have been 'restored.' " Id. at 377. We decline to follow the reasoning in either Davis or Roehl.

Instead, we find persuasive the analysis of the First Circuit in Cases v. United States, ...

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