U.S. v. McBryde

• Decision Date: 12 July 1991
• Docket Number: No. 90-5213,90-5213
• Citation: 938 F.2d 533
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry B. McBRYDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 533

938 F.2d 533

UNITED STATES of America, Plaintiff-Appellee, v. Henry B. McBRYDE, Defendant-Appellant.

No. 90-5213.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1991.

Decided July 12, 1991.

John Herman Hare, Asst. Federal Public Defender, Columbia, S.C., for defendant-appellant.

Alfred William Walker Bethea, Jr., Asst. U.S. Atty., Florence, S.C., argued (E. Bart Daniel, U.S. Atty., Florence, S.C., on the brief), for plaintiff-appellee.

Before PHILLIPS and SPROUSE, Circuit Judges, and MERHIGE, Senior District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

PHILLIPS, Circuit Judge:

Henry McBryde appeals his conviction for possession by a state-convicted felon of three firearms in violation of 18 U.S.C. Sec. 922(g)(1). Although McBryde admits that he possessed the firearms, he argues that his firearms possession was not a federal crime as defined in Sec. 922(g)(1), because the state conviction upon which its criminality depended had been effectively voided as a "conviction" by the provisions of 18 U.S.C. Sec. 921(a)(20). We agree, and reverse.

I

Under Sec. 922(g)(1), it is a federal crime for a person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ... possess in or affecting commerce, any firearm...." This general rule is qualified by 18 U.S.C. Sec. 921(a)(20), which provides:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

McBryde has not disputed that he knowingly possessed three firearms that had been transported in interstate commerce. Nor has he disputed that on September 6, 1983, in the Superior Court of Anson County, North Carolina, he was convicted of insurance fraud, a crime punishable by imprisonment for more than one year. His sole defense has been that upon completion of his probationary sentence for this offense in 1985, he received from North Carolina a certificate restoring his civil rights which did not "expressly provide[ ] that he [might] not ship, transport, possess, or receive firearms." This fact, he claimed, brought him under the provision of Sec. 921(a)(20), which made his insurance fraud conviction no longer a conviction for purposes of Sec. 922(g)(1), so that an essential element of that offense could not be proven. On this basis, he moved to dismiss the indictment. The district court denied the motion. McBryde entered a conditional plea of guilty, and took this appeal.

II

As the parties agree, the only issue is whether under Sec. 921(a)(20), the restoration of McBryde's civil rights by North Carolina made his admitted predicate state conviction for insurance fraud no longer a predicate conviction for purposes of Sec. 922(g)(1), so that he could not properly be convicted under the latter statute.

The government makes a number of legal arguments about the intended meaning of these two statutes considered in combination which, if accepted, would make Sec. 921(a)(20) of no help to McBryde, but we find none of them persuasive. As we read the statutes, their meaning in combination is plain: (1) It is a federal crime for a person who earlier has been convicted of a crime punishable by imprisonment for more than a year to, among other things, possess a firearm, 18 U.S.C. Sec. 922(g)(1), but (2) a conviction otherwise qualifying as a predicate conviction under Sec. 922(g)(1) is not to be considered a conviction for purposes of that statute if, among other things, the person convicted has had his civil rights that were lost by that conviction restored by the state, unless (3) the restoration "expressly provides that the person may not ship, transport, possess, or receive firearms," 18 U.S.C. Sec. 921(a)(20).

By the interplay of these statutes, McBryde's insurance fraud conviction, which admittedly qualified as a predicate conviction when imposed, no longer did so if the state's conceded restoration of his civil rights meets the requirements of Sec. 921(a)(20). That, we think, is the only fairly arguable question on this appeal.

The certificate evidencing the nature of the state's restoration of rights reads as follows:

FOR CONVICTED FELONS ONLY--

RESTORATION OF RIGHTS

Pursuant to Section 13-1 of the General Statutes of North Carolina, all rights of citizenship which were forfeited on conviction are by law automatically restored with the exception of the right to own, possess, receive, buy or otherwise acquire firearms of any description. This right is precluded under Title VII, Sections 1201-1202 of the "Omnibus Crime Control and Safe Streets Act of 1968". Relief from this Act may be obtained by contacting the Director, Bureau of A.T.F., Atlanta, Georgia.

At the time this certificate was issued in 1985, the referenced federal law made it a crime, without regard to what state law might say about the firearms-privileges of its ex-felons, for such persons to possess firearms without express federal authorization. But this flat, independent prohibition of federal law was repealed in 1986, and Sec. 921(a)(20) was enacted specifically to "defer[ ] to state law with respect to the federal firearms privileges of persons convicted in that state," United States v. McLean, 904 F.2d 216, 218 (4th Cir.1990), quoting United States v. Cassidy, 899 F.2d 543, 549 (6th...