U.S. v. McElyea, 97-10269

• Decision Date: 16 October 1998
• Docket Number: No. 97-10269,97-10269
• Citation: 158 F.3d 1016
• Parties: 98 Cal. Daily Op. Serv. 7822, 98 Daily Journal D.A.R. 10,873 UNITED STATES of America, Plaintiff-Appellee, v. Joe Lowell McELYEA, Jr. Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1016

158 F.3d 1016

98 Cal. Daily Op. Serv. 7822, 98 Daily Journal

D.A.R. 10,873

UNITED STATES of America, Plaintiff-Appellee, v. Joe Lowell McELYEA, Jr. Defendant-Appellant.

No. 97-10269.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 1998.

Decided Oct. 16, 1998.

Gregory A. Bartolomei, Bartolomei & Victor, Phoenix, AZ, for defendant-appellant.

Paul V. Rood, Assistant United States Attorney, Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding. D.C. No. CR-95-00308-ROS.

Before: NOONAN and TROTT, Circuit Judges, and WALLACH, Judge. ^*

WALLACH, Circuit Judge.

Appellant Joe Lowell McElyea ("McElyea") appeals his jury conviction for two counts of a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) (1996). McElyea argues that it was reversible error for the district court to fail to instruct the jury that the Government had the burden to prove beyond a reasonable doubt that McElyea's civil rights had not been restored. As a result, McElyea argues that his conviction was unlawful.

In the alternative, he appeals the sentence imposed upon him by the district court. He claims that the district court improperly enhanced his sentence when it sentenced him as an "Armed Career Criminal" pursuant to 18 U.S.C. § 924(e)(1) because two of the predicate convictions were not "committed on occasions different from one another". We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the conviction, but remand the case for resentencing.

I. Jury Instructions

On February 7, 1997, McElyea was convicted of possessing a Lorcin .380 caliber semi-automatic pistol and a Marlin .22 caliber rifle. Appellant's Excerpts of Record ("E.R.") A and H. Under 18 U.S.C. § 922(g)(1), convicted felons are prohibited from possessing firearms. The statute provides: "[i]t shall be unlawful for any person ... who has been convicted in any court of [ ] a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). Section 921(a)(20) provides, inter alia: "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 a pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

In 1980, McElyea was convicted of two counts of burglary, a felony. McElyea received a conviction for selling narcotic drugs, also a felony, in 1985. McElyea claims that he believed his civil rights were restored under Arizona law in 1992 and that he could lawfully possess a firearm. He reasons that because the state of Arizona approved his application for a voter's registration card, called him for jury duty, and permitted him to vote in several elections, his civil rights were restored. Consequently, he claims that the district court should have instructed the jury that the Government had the burden of proving beyond a reasonable doubt that his civil rights were not restored.

"We review de novo whether [a defendant's] rights have been restored such that the prior convictions may not be used as predicate offenses in a prosecution under 18 U.S.C. § 922(g)." United States v. Oman, 91 F.3d 1320, 1321 (9th Cir.1996). We look to state law to determine whether a defendant's civil rights were substantially restored. United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991). The state of Arizona, where McElyea was convicted, automatically suspends the right to vote, hold public office of trust or profit, serve as a juror, possess a gun or firearm, or any other civil rights necessary while such person is imprisoned. See Ariz.Rev.Stat. § 13-904(A). Suspension is designed to ensure the security of the institution and reasonable protection of the public from all convicted felons. Id. However, after discharge from prison, a convicted felon "may have any civil rights which were lost or suspended by his conviction restored by the superior court judge by whom the person was sentenced or his successors in office from the county in which he was originally sentenced." Ariz.Rev.Stat. § 13-906(A).

McElyea claims that he petitioned the Maricopa County Superior Court to have his civil rights restored in 1992. Reporter's Transcript ("RT") vol. III at 344. Although he did not receive any communications regarding his application, he applied for a voter registration card approximately six weeks later. McElyea testified that when he applied for the voter registration card he signed a statement that he had never been convicted of a felony or that if he had his civil rights had been restored. See RT vol. III at 371. He stated that he signed it because he "felt that [his] rights had been restored." RT vol. III at 349. He also testified that he never received any correspondence from the court informing him that his civil rights had been restored. RT vol. III at 369.

We find that McElyea's civil rights were not restored, and he had no reasonable expectation they would be. Under Arizona law, a convicted felon is not allowed to apply for the restoration of his civil rights until two years have passed from the date of absolute discharge. See Ariz.Rev.Stat. § 13-906(B). Here, McElyea testified that "[he] had received an absolute discharge in April [of 1992], and [he] waited approximately two weeks before [he] went and filled out the application [for restoration of his civil rights]." RT vol. III at 345. McElyea was ineligible for restoration of his civil rights at that time. In addition, McElyea received no notification that his petition for restoration of his civil rights had been granted and the record does not reflect that any such documentation exists. Consequently, McElyea's statement on his application for voter registration that his civil rights had been restored was fraudulent. We normally look to whether a felon has been restored the right to sit on a jury, to vote, and to hold public office in determining if the felon's civil rights have been restored. See United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir.1995), cert. denied, 516 U.S. 1164, 116 S.Ct. 1055, 134 L.Ed.2d 199 (1996). However, where, as here, those rights were granted based on his misrepresentation, we will give them no weight. ¹

Because we find that McElyea's civil rights were not restored, the district court did not commit reversible error in its instructions to the jury.

II. Enhanced Sentence

We review de novo the application of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (1994); see also United States v. Antonie, 953 F.2d 496, 497 (9th Cir.1991). The statute provides:

In the case of a person who violates § 922(g) of this title and has three previous convictions by any court referred to in § 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

18 U.S.C. § 924(e)(1).

McElyea does not dispute that his 1985 conviction for sale of narcotics qualifies as one previous conviction within the meaning of the statute. He claims, however, that his two burglary convictions in 1980 do not constitute felonies "committed on occasions different from one another". The facts underlying McElyea's convictions in 1980 are as follows: on March 15, 1979, McElyea and an accomplice broke into a store that was part of a strip mall. Once inside the store, they chopped a hole in the wall between the store they had entered and the adjoining store. Items were removed from each store. RT for June 2, 1997 at 13. Based on these facts, McElyea says his actions constituted a single criminal transaction.

A. Legislative History Of The ACCA

The statutory language "committed on occasions different from one another" is ambiguous. When a statute is ambiguous we may look to legislative history as a guide to its meaning. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). "The [Armed Career Criminal] Act was promulgated to punish habitual offenders who were found to be disproportionately responsible for violent crimes." United States v. Antonie, 953 F.2d at 499 (citing ACCA: Hearing on H.R. 1627 and S. 52 Before the Subcomm. on Crime of the House Judiciary Comm., 98th Cong., 2d Sess. 12-13 (1984) (statement of Senator Spector)).

The predecessor statute to the present ACCA did not include the language "committed on occasions different from one another". 18 U.S.C.App. § 1202(a)(1) (1982). That language was added in 1988. No Senate or House Report was submitted with the legislation amending § 924(g). See 1988 U.S.C.C.A.N. 5937. Nor does the legislative history supply a precise meaning for the phrase at issue. However, it does provide some guidance.

Senator Biden, Chairman of the Judiciary Committee, included a statement in the Congressional Record which set forth "a section-by-section analysis of those provisions" which he "believe[d would] be helpful to those who wish[ed] to know the intent of the drafters of this legislation." 134 Cong. Rec. S17360-02 (daily ed. Nov. 10, 1988) (statement of Sen. Biden). According to his statement, the congressional intent regarding the amendment to § 924(g) is:

Section 7056 [which inserted the language "committed on occasions different from one another"] clarifies the armed career criminal statute, 18 U.S.C. 924(e), by inserting language describing the requisite type of prior convictions that trigger the law's mandatory minimum sentencing provisions. Presently, § 924(e) provides that a person found in possession of a firearm shall be sentenced to a mandatory minimum prison term of...