U.S. v. Norman, s. 96-1342

• Decision Date: 28 November 1997
• Docket Number: 96-1359,Nos. 96-1342,s. 96-1342
• Parties: 97 CJ C.A.R. 3213 UNITED STATES of America, Plaintiff--Appellee, v. Gary NORMAN, also known as Stitch, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1393

129 F.3d 1393

97 CJ C.A.R. 3213

UNITED STATES of America, Plaintiff--Appellee, v. Gary NORMAN, also known as Stitch, Defendant--Appellant.

Nos. 96-1342, 96-1359.

United States Court of Appeals, Tenth Circuit.

Nov. 28, 1997.

Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for Appellant.

Guy Till, Assistant United States Attorney (Henry L. Solano, United States Attorney and Gregory C. Graf, Assistant United States Attorney, on the briefs), Denver, CO, for Appellee.

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Following a jury trial, Gary L. Norman was convicted on one count of possessing methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, ¹ Norman contends that the district court erred by: 1) refusing to dismiss the felon in possession count; 2) imposing a two-level sentence enhancement for obstruction of justice; 3) assessing an additional criminal history point for a previous minor misdemeanor conviction; 4) assessing two additional criminal history points for an outstanding deferred judgment and sentence; and 5) failing to deduct drug amounts which he possessed for personal use from its drug quantity calculation. We affirm in part, reverse in part, and remand for resentencing.

BACKGROUND

In the early evening of October 16, 1994, Norman caused a traffic accident when he failed to stop at a stop sign, and the 1976 Cadillac he was driving ² struck a pick-up truck. R. Vol. II, Tab 43, Ex. 1 at 8. The truck spun around from the force of the impact and, sliding sideways 174 feet, came to rest facing the guardrail. The Cadillac continued about ninety-four feet, knocking over an interstate sign before it stopped on a grassy median. ³ Id.; R. Vol. X at 127. Two of the truck occupants were slightly injured and required medical attention. R. Vol. X at 121. When a witness at the scene approached Norman, he was "behaving strangely." Id. at 120. Other witnesses described Norman as "spaced out," "acting Deputy Erik Little was dispatched to the accident scene because of a report that someone there had a handgun. R. Vol. XI at 187. When Little arrived, he saw Norman standing in front of the Cadillac, kicking the dirt. Id. One of the witnesses informed him that Norman had put a gun inside the car. Id. at 188. As he approached Norman, Little saw a hunting knife on his belt. Little told Norman that the knife needed to be secured for officer safety, and he asked if Norman was carrying any other weapons. Id. at 188-89. Norman answered, "No," although he stated that he had a handgun under the front seat of the Cadillac. Id. at 189-90. Little conducted a pat down search during which he located a loaded two-shot derringer in Norman's left front pants pocket. At that time, Little handcuffed Norman and continued the pat down which further uncovered a small vial containing what appeared to be methamphetamine and $295 in cash in Norman's right pants pocket. Id. at 189. Little then arrested Norman.

                weird," "agitated," and "uncooperative."  Id. at 127-28, 133.   The witnesses observed Norman get out of his car, walk in front of it, kick up some dirt, and drop something over which he again kicked dirt, apparently attempting to bury the item(s).  They also observed Norman put something in his car's trunk.  Id. at 127, 135
                

Meanwhile, Trooper Miranda had arrived at the scene. After securing Norman in the back seat of Little's patrol car, Miranda and Little checked inside the Cadillac, where they found a loaded Taurus .357 revolver and a magazine for a .22 semiautomatic weapon. Id. at 190-91, 341-42. In the trunk, they found a loaded .380 semi-automatic handgun and several two-inch zip lock baggies. Id. at 200-02, 342-43. When the officers and one of the witnesses checked the area in front of Norman's car where they had observed him, they discovered a partially buried black box containing a scale and a baggie containing methamphetamine. Id. at 191-92; R. Vol. X at 136-39.

Suspecting that Norman was under the influence of a drug, Miranda called Trooper Beard, a drug-recognition expert, to the scene. R. Vol. XI at 344-45; R. Vol. X at 149-50. In Beard's opinion, Norman was under the influence of a stimulant, although he appeared to be "coming down." R. Vol. X at 154, 156-58. The formal write-up which the police prepared upon return to the station indicates that Norman was arrested for various violations, including disregarding a stop sign, driving without insurance, driving while under the influence, unlawfully carrying a concealed weapon, possession of a controlled substance, and possession of a firearm while under the influence. R. Vol. II, Tab 43, Ex. 1 at 1-2. Colorado Springs police subsequently executed a search warrant at Norman's shop/home, where they found some destructive devices as well as paraphernalia associated with methamphetamine consumption. R. Vol. XII at 372, 414-16, 422-25, 428, 430-31.

Eventually, the United States obtained a five-count superseding indictment against Norman. R. Vol. I, Tab 31. The jury convicted Norman on counts one (drug distribution) and three (felon in possession of a firearm). However, the jury acquitted him on count two-carrying a firearm (the small gun found in his pocket) in connection with a drug crime; on count four-possessing a firearm (the semiautomatic found in his trunk) while he was a user of illegal drugs; and on count five-possessing a destructive device (found during the search of his shop). On July 11, 1995, after reviewing the PSR and hearing objections, testimony and arguments, the district court calculated Norman's base offense level and criminal history category, and then sentenced him to 151 months' imprisonment on the drug distribution conviction and to a concurrent 120 months' imprisonment on the firearms conviction.

DISCUSSION

A. Unlawful Possession of a Firearm by a Previously Convicted Felon.

In 1976 Norman pleaded guilty and was convicted and sentenced on a Colorado state felony charge of conspiracy to dispense drugs. He was subsequently released from prison in September 1978, and he was discharged from parole in July 1979. R. Vol. XVIII at pp 55-60.

Title 18 U.S.C. § 922(g)(1) prohibits the possession of a firearm by any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year." The prior convictions which will support a § 922(g)(1) charge are described and restricted by 18 U.S.C. § 921(a)(20) as follows:

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 ... 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 ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20) (emphasis added).

In this case, the government supported its § 922(g)(1) charge against Norman by alleging his 1976 Colorado state felony conviction. As his first claim on appeal, Norman contends that his prior Colorado conviction cannot serve as a predicate offense under 18 U.S.C. § 921(a)(20), and that the district court erred by refusing to dismiss that count. We review a district court's interpretation of 18 U.S.C. § 921(a)(20) de novo. United States v. Hall, 20 F.3d 1066, 1068 (10th Cir.1994).

In 1979, at the time Norman completed his sentence, his civil rights were restored by operation of Colorado law, and, also at that time, Colorado imposed no restriction on his right to possess firearms. We have previously held that 18 U.S.C. § 922(g)(1) does not reach such convictions. Hall, 20 F.3d at 1069. However, Colorado amended its laws in 1993, and under the law in effect at the time that Norman was arrested in October 1994, it was a crime for any convicted felon to possess a firearm. Colo.Rev.Stat. § 18-12-108. ⁴ Therefore, we must determine whether § 921(a)(20) requires us to apply the Colorado law which was in effect at the time Norman completed his sentence, and his civil rights were originally restored, or whether the section requires us to apply the amended law which was in effect at the time that he was arrested. ⁵

As the Ninth Circuit explained in United States v. Cardwell, 967 F.2d 1349 (9th Cir.1992):

Section 921(a)(20) states that section 922(g)(1) applies if the pardon, expungement, or restoration of civil rights "expressly provides" that the defendant may not ship, transport, possess, or receive firearms. The plain meaning of this use of the present tense is that the courts must determine the effect of the pardon, expungement, or restoration of civil rights at the time it is granted and cannot consider whether the defendant's civil rights later were limited or expanded.

Id. at 1350-51 (emphasis added) (citation omitted); accord United States v. Haynes, 961 F.2d 50, 52-53 (4th Cir.1992); United States v. Traxel, 914 F.2d 119, 124-25 (8th Cir.1990).

We agree with our sister circuits. Section 921(a)(20) requires us to look to the law which was in effect at the time that Norman's civil rights were restored, and then to determine whether that law "expressly provides" that he may not ship, transport, possess, or receive firearms. ⁶ As noted, Colorado

law did not expressly limit Norman's possession of firearms at the time his civil rights were restored. Therefore, notwithstanding any later limitation which may have been imposed, his 1976 conviction could not serve as a predicate offense under § 922(g)(1), and the district court erred in refusing to dismiss. Accordingly, we reverse Norman's conviction on this count.

B. Sentencing Calculations under United...