US v. O'NEAL

• Decision Date: 02 June 1999
• Docket Number: No. 96-4188.,96-4188.
• Citation: 180 F.3d 115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Lee O'NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

180 F.3d 115

UNITED STATES of America, Plaintiff-Appellee, v. Curtis Lee O'NEAL, Defendant-Appellant.

No. 96-4188.

United States Court of Appeals, Fourth Circuit.

Argued April 9, 1999.

Decided June 2, 1999.

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ARGUED: Harold Johnson Bender, LAW OFFICE OF HAROLD J. BENDER, Charlotte, North Carolina, for Appellant. Brian Lee Whisler, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILLIAMS and Senior Judge BUTZNER joined.

LUTTIG, Circuit Judge:

Curtis Lee O'Neal appeals from his federal conviction for unlawful possession of a firearm and his enhanced sentence as an armed career criminal. He contends that the district court should have granted him a new trial because of jury misconduct and that there were not three predicate convictions to support his enhanced sentence. For the reasons that follow, we affirm.

I.

In April 1995, a jury in the Western District of North Carolina convicted O'Neal of one count of possessing a firearm in violation of 18 U.S.C. § 922(g)(1), which outlaws possession of a firearm, in or affecting interstate commerce, by any person "who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year." The district court denied O'Neal's motion for a new trial on this charge in June 1995. The predicate conviction on which the government relied to trigger section 922(g)(1)'s prohibition was O'Neal's conviction in April 1988 in North Carolina state court for assault with a deadly weapon with intent to kill and inflicting serious injury. At sentencing on O'Neal's firearm possession conviction, the district court, adopting the presentence report ("PSR") "for all purposes of this sentencing," agreed with the PSR's conclusion that O'Neal had at least three previous convictions (including the 1988 conviction) for violent felonies or serious drug offenses, see 18 U.S.C. § 924(e), and was therefore an armed career criminal subject to an enhanced sentence under section 4B1.4 of the sentencing guidelines. The court ultimately sentenced him to 262 months, the bottom of his guideline range.

O'Neal appeals, raising two arguments. He first argues that the district court abused its discretion by denying his motion for a new trial based upon jury misconduct. Second, he challenges the propriety of using two of the predicate convictions on which the government relies for his status as an armed career criminal—his North Carolina state convictions in 1975 and 1977.

II.

We need not dwell on O'Neal's claim that the district court abused its discretion in denying his motion for a new trial on grounds of jury misconduct, because this claim is meritless. Immediately after the jury rendered its verdict, the foreman and another juror informed the court and counsel that some jurors had been concerned to see O'Neal taking notes during jury selection, and that those jurors had feared that he would use the recorded information to retaliate against them. Because of this concern expressed by members of the jury, O'Neal moved for a mistrial.

The district court denied the motion for three reasons. First, the motion was untimely, having been filed over two months after the date of the verdict. See Fed. R.Crim.P. 33 (generally imposing seven-day time limit on motion for new trial). Second, given the overwhelming evidence of O'Neal's guilt, the court did not believe that the jurors' fears affected their verdict. Third, the court held that it could not apply Rule 33's longer period for bringing motions based on newly discovered evidence, because there was no such evidence. Rather, the district court reasoned, O'Neal possessed all of the evidence to support his motion "within ten minutes of the jury's verdict being returned." We see no abuse of discretion in denying O'Neal's motion on such reasoning, and certainly no "clear abuse." United States v. Dorsey, 45 F.3d 809, 817 (4th Cir.1995).

III.

O'Neal raises two challenges to his enhanced sentence as an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. He first argues that when, in 1983, North Carolina discharged his 1975 and 1977 convictions (by ending his parole), it applied the law in effect when he committed those offenses, pursuant to which it immediately restored his right to possess firearms. If the state did proceed as O'Neal suggests, the 1975 and 1977 convictions cannot, for the reasons discussed below, be used as predicate convictions for treating him as an armed career criminal under section 924(e), and, as a consequence, there are not three predicate convictions to support O'Neal's enhanced sentence. On the other hand, if, in 1983, North Carolina instead applied the law in effect in 1983, O'Neal could not then possess firearms, and these two convictions are therefore valid predicates. O'Neal argues, however, that if we conclude that North Carolina did in fact apply the law in effect in 1983, application of that law violated the Ex Post Facto Clause. U.S. Const., Art. 1, § 10. Finally, as his second challenge to his status as an armed career criminal, O'Neal argues that the 1977 conviction cannot be a predicate conviction because he lacked notice that it might be so used. We reject each of these arguments.

A.

Section 4B1.4 of the sentencing guidelines imposes an enhanced sentence on anyone who is an armed career criminal under 18 U.S.C. § 924(e)(1). Section 924(e)(1) applies to anyone "who violates section 922(g) of Title 18 and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or serious drug offense, or both ...." As we explained in United States v. Clark, 993 F.2d 402, 403 (4th Cir.1993), this language requires, among other things, that the three predicate convictions be "of the type referred to in § 922(g)(1)." Section 922(g)(1) applies to convictions for crimes "punishable by imprisonment for a term exceeding one year." There is, however, an important exception:

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.

18 U.S.C. § 921(a)(20). In determining whether a "restoration of civil rights expressly provides that the person may not ... possess ... firearms," we look to the law of the jurisdiction of conviction, see id. (here, the State of North Carolina), and consider the jurisdiction's entire body of law, not merely, for example, the jurisdiction's certificate of restoration of rights, received upon discharge of a conviction. United States v. McLean, 904 F.2d 216, 218 (4th Cir.1990). Thus, by the interrelation of these three statutory provisions, sections 921(a)(20), 922(g)(1), and 924(e), a previous conviction may not serve as a predicate for application of section 924(e) if the jurisdiction of conviction has restored to the defendant the civil rights, including the right to possess firearms, that it stripped from him upon his conviction.

O'Neal has four previous convictions that might serve as predicate convictions under section 924(e). The first is the 1988 conviction. O'Neal does not challenge its use as a predicate conviction. The second is a conviction in August 1983 in South Carolina for trafficking in marijuana. The government, however, no longer seriously contends that this conviction is a valid predicate, but rather admits that South Carolina fully restored O'Neal's civil rights when it discharged this conviction in 1987. Third, in June 1977, O'Neal was convicted in North Carolina for a felony larceny that occurred in March 1975.¹ North Carolina discharged this conviction in May 1983. Finally, in August 1975, O'Neal was convicted in North Carolina for breaking and entering, felony larceny, and safecracking. North Carolina discharged this conviction in May 1983, the same day as the 1977 conviction.

In evaluating the validity of the 1975 and 1977 convictions as predicate convictions under section 924(e), it is necessary to understand how North Carolina's Felony Firearms Act changed from its inception through 1983. The original version, enacted in 1971, outlawed possession of a firearm by any person convicted of a crime punishable by imprisonment for two or more years, N.C. Gen. Stat. § 14-415.1(a); section 14-415.2, however, exempted those whose civil rights had been restored.² Other laws then in effect generally restored a felon's civil rights two years after discharge of his conviction. See State v. Currie, 284 N.C. 562, 202 S.E.2d 153, 154-55 (1974). In 1973, North Carolina amended its laws to restore civil rights immediately upon discharge of a conviction,³ but it did not then amend section 14-415.2. The effect was to restore a felon's right to possess firearms immediately upon discharge of his conviction. See 202 S.E.2d at 155-56. As we have explained, "when it became apparent that this would make virtually all felons exempt from the Firearms Act, the General Assembly repealed" section 14-415.2. McLean, 904 F.2d at 218-19 (citation omitted). At the same time, in 1975, the state legislature amended section 14-415.1 to limit the ban on possession of a firearm to five years from the date of a conviction's discharge.⁴ See 904 F.2d at 218. These revisions took effect in October 1975, after O'Neal had committed the offenses that led to his 1975 and 1977 convictions, and, except for some minor changes not relevant here, they remained in effect in 1983, when...