United States v. Reese

• Decision Date: 01 May 2014
• Docket Number: No. 33,950.,33,950.
• Citation: 326 P.3d 454
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Oliver REESE, Defendant–Appellant.
• Court: New Mexico Supreme Court

326 P.3d 454

UNITED STATES of America, Plaintiff–Appellee,

v.James Oliver REESE, Defendant–Appellant.

No. 33,950.

Supreme Court of New Mexico.

May 1, 2014.

Monnica L. Garcia, Law Office of Monnica L. Garcia, LLC, Paul John Kennedy, Justine C. Fox–Young, Robert Jason Bowles, Paul Kennedy & Associates, William C. Marchiondo, Marchiondo Law Offices, P.C., Albuquerque, NM, Louis I. Cole, Louis I. Cole, P.C., Dallas, TX, for Appellant.

Jennifer M. Rozzoni, Laura Fashing, Office of the U.S. Attorney, Albuquerque, NM, for Appellee.

Trace L. Rabern, Santa Fe, NM, for Amicus Curiae, New Mexico Criminal Defense Lawyers Association.

OPINION

BOSSON, Justice.

{1} The United States Court of Appeals for the Tenth Circuit certified the following question to this Court pursuant to 10th Cir. Rule 27.1:

If an otherwise-qualified person has completed a deferred sentence for a felony offense, is that person barred from holding public office without a pardon or certificate from the governor, as required by N.M. Stat. Ann. § 31–13–1(E), or is that person's right to hold office automatically restored by Article VII, §§ 1, 2 of the New Mexico Constitution and N.M. Stat. Ann. § 31–13–1(A)(1)?

United States v. Reese, 505 Fed.Appx. 733, 735 (10th Cir.2012) (non-precedential). SeeRule 12–607(A)(1) NMRA (authorizing the Supreme Court to answer by formal written opinion questions certified by a court of the United States). In answering this question, we hold that upon the satisfactory completion of all conditions for a deferred sentence and the resulting dismissal of all charges, New Mexico restores a person's civil rights, including the right to hold public office, by operation of law without the necessity of a pardon or certificate from the governor.

BACKGROUND

{2} The factual background in this opinion is based on the limited facts provided in the briefs and the record sent to this Court with the Tenth Circuit's certified question.

{3} In 1992, James Oliver Reese entered a no contest plea in New Mexico district court to one felony count of tampering with evidence. Reese's felony tampering charge was connected to two charges of aggravated assault—one involving a handgun and the other a knife. He was charged with tampering for hiding the knife. As a result of the plea, the state dismissed both aggravated assault charges, leaving only the charge of tampering with evidence.

{4} The district court deferred sentencing and placed Reese on probation for a period of eighteen months. SeeNMSA 1978, § 31–20–6 (1988, amended 2007) (providing conditions of an order deferring sentence, which may include the “supervision, guidance or direction of the adult probation ... division” under Subsection C). Reese successfully satisfied the conditions of his deferment, and thereafter the district court duly entered an order that Reese was “relieved of any obligations ... and [had] satisfied his ... criminal liability for the crime,” and that the charge of tampering with evidence was dismissed. SeeNMSA 1978, § 31–20–9 (1977) (providing the result of completing a deferred sentence, including “a dismissal of the criminal charge”).

{5} More than a decade later, a maelstrom of domestic strife involving Reese, his ex-wife, and his current wife brought about Reese's current legal predicament. At the end of June 2009, agents from the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) obtained warrants to search Reese's residence as well as his vehicle and business for firearms. ATF agents executed the warrants and seized thirty-three firearms plus ammunition; thirty-two of the firearms were operational.

{6} On May 11, 2011, a federal grand jury issued a twenty-four-count indictment arising from the procurement and possession of those firearms. ¹ Most of the charges were eventually dismissed. Three counts of the indictment were brought under the federal statute prohibiting felons from possessing firearms. See § 922(g)(1) (prohibiting a felon from possessing a firearm or ammunition). Reese's felon-in-possession charges were all predicated on his 1992 New Mexico felony conviction for tampering with evidence, which the state court had dismissed years before. Reese moved the federal district court to dismiss the three federal felon-in-possession charges, but the court denied the motion.

{7} On September 23, 2011, Reese entered into a conditional plea agreement with the federal prosecutor and pled guilty to one count of being a felon in possession of firearm. As part of the plea agreement, the other twenty-three charges were dismissed, and Reese was permitted to appeal the denial of his motion to dismiss.

{8} On appeal to the Tenth Circuit Court of Appeals, Reese asserted that, because of his deferred sentence and the eventual dismissal of his state tampering-with-evidence charge, New Mexico no longer considered him a felon. Since his only prior felony conviction was under New Mexico law, Reese argued that he should not be considered a felon under federal law for purposes of the federal felon-in-possession-of-a-firearm statute. Accordingly, Reese maintained that when the federal district court refused to dismiss the federal charge, it was operating under a faulty premise which he asked the Tenth Circuit to correct. We briefly examine that argument to clarify our role in answering the question certified to us by the Tenth Circuit.

{9} Federal law prohibits convicted felons from possessing firearms or ammunition:

It 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 ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

§ 922(g)(1).

{10} As stated, the federal crime of being a felon in possession of a firearm extends to any person “convicted in any court,” including state court, of an earlier felony. However, the federal definition of a felony or “crime punishable by imprisonment for a term exceeding one year” explicitly excludes any conviction for which a person has been pardoned or has had civil rights restored:

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 [§ 922(g)(1) ], unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20) (2012) (emphasis added).

{11} If the conviction occurred in state court, then federal law considers the civil rights of convicted felons “restored” when, under state law, they have regained four basic civil rights: (1) the right to vote, (2) the right to hold public office, (3) the right to serve on a jury, and (4) the right to possess firearms.²United States v. Maines, 20 F.3d 1102, 1104 (10th Cir.1994); see also United States v. Flower, 29 F.3d 530, 536 (10th Cir.1994) (holding that not less than the four Maines rights must be restored). As such, if New Mexico has restored all four Maines civil rights to Reese, then federal law does not consider him a felon for purposes of the felon-in-possession statute. See§ 921(a)(20) (“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.”); see also Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994) (interpreting the choice-of-law clause in § 921(a)(20)).

{12} At the Tenth Circuit, the parties agreed that New Mexico had restored Reese's rights to vote, to serve on a jury, and to possess firearms. Reese, 505 Fed.Appx. at 736; see alsoNMSA 1978, § 38–5–1(B) (2006) (restoring the right to serve on a jury); NMSA 1978, § 31–13–1(A)(1) (2005) (restoring the right to vote); NMSA 1978, § 30–7–16(C)(2)(c) (2001) (restoring the right to possess a firearm). The parties disagreed, however, over whether New Mexico had restored Reese's fourth civil right, the right to hold public office. Reese, 505 Fed.Appx. at 736.

{13} Because it was “a close question with persuasive arguments on both sides” that potentially implicated the New Mexico Constitution, the Tenth Circuit certified the question to this Court. Id. at 734–36; see alsoRule 12–607(A)(1) NMRA (“The Supreme Court may answer by formal written opinion questions of law certified to it by a court of the United States....”). We accepted certification and appreciate the opportunity to answer this significant question of state law.

DISCUSSION

{14} The Tenth Circuit's concern arises from the New Mexico Constitution, which appears to link the right to hold office with the right to vote. Article VII, Section 2 of the New Mexico Constitution, provides that “[e]very citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.” Article VII, Section 1, of the New Mexico Constitution provides for the right to vote:

Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers (emphasis added).

At first blush, the Constitution might appear to disqualify Reese from voting and thus from holding office because he was convicted of a felonious crime in 1992. However, the next qualifying phrase, “unless restored to political rights,” allows a felon's disqualification to be reversed.

{15} Historically, political rights were restored by...