judge gregory may please the court my name is kevin king i'm here covington and burling on behalf of the appellant arnold paul burlison i'd like to reserve five minutes for about mr burleson was convicted in tw it has a critical sentence or two in it which provides that if a defendant's civil rights were restored it conviction does not count as a section nine twenty nine twenty two credit unless and now i'm quoting unless such restoration of civil rights expressly provides that the person may not possess firearms now in this case it is uncontested that mr burleson civil rights were restored in  eight and that his right as us firearms under state law was restored automatically in one thousand nine hundred three so we have a restoration and i think that makes it so there's really only one question in the case and that i three mr burleson was on the same footing as any other citizen he was fruits of possessing a firearm in his home brought to do whatever the law authorized the citizen to do with the firearm so i think that really ought to be the end of the  vote to serve on a jury to hold office those sorts of standard rights and then there was a five year waiting period with which he complied he committed no further felonies so by operation of law in one thousand nine hundred three he got back his right to possess firearms law and that's true the court has said that you need to look to the entirety of state law that has a very particular meaning which we flesh out in our reply brief and which you can find in the mclean case and a couple of the other cases of this court cited  which is that when you're looking at whether a restoration expressly provides that the defendant may not possess firearms the court said you look to the entirety of state law and not just to the certificate where there is a certificate you know here again j one twenty there there's a certificate that mr burleson received and there's a circuit split on that issue some circuits the seventh circuit have held that where there's a certificate we're not going to look beyond the certificate we're just going to focus on what that document says and if it says nothing about firearms the defendant wins this court rejected that view in mclean and it joined up with the sixth circuit and a few other circuits and said no when considering whether a state law expressly provides  i'm sorry such restoration expressly provides that the defendant may not possess firearms we're going to look at the certificate and we're going to look at state law but what the court did not do in mclean and what the government does not address in its proof is the timing of that inquiry right do you look to the entirety of state law in one thousand nine hundred three when the restoration occur or do you look to the entirety of state law today or at the time of arrest or at some other time period mclean just does not speak that issue but this court's decision in haynes does and you know haynes said and this is nine sixty one federal second fifty through that when looking to the entirety of state law section nine twenty one directs courts to view the law that would i'm sorry the whole state was quote at the time the defendant civil rights were restored and the court went on it pains to say that subsequent enactment of legislation does not alter the section on twenty one analysis we think that haynes if it doesn't dispose of this case basically gives that the court the tools that it needs to dispose of case and moreover we would know the united states noted in the last argument that a president from other we're advocating for here and they've done so in published decisions all of them say that under section one twenty one courts look to the law in effect at the time of the restoration now i will acknowledge that it one point in the melon case which the government  ies on heavily the second circuit took a different approach melvin look to the law in effect at the time of arrest but in adams which was decided in two thousand and twelve after this court's most recent unpublished decision harris on the issue adams said no we're going to look at the law at the time of the potential restoration and so on i think there's really no precedent anywhere for the opposite approach there's a tremendous amount precedent to the approach that we advocate for here i would know in addition that this court's macqueen decision which i think was about ten years ago it explained that under section one twenty one courts apply a very simple and straightforward rule right under section one twenty one you look back and i'm sorry you look back since the defendant was last allowed to possess firearms and you count the number of convictions here that number is zero right mr burleson was last allowed to possess firearms under state law in one thousand nine hundred three he has zero convictions since then do you agree that or what do you view us as i should put it this way what is your view as to the state of north carolina was saves that there are two kinds of dismissal under state law dismissal with and without leave to reinstate and if you take a look at j ten you'll see that the dismissal of the state law charges in this case was with th of was not with leave to reinstate that may have some consequences it may not yeah so it's a considered judgment was made by the state and federal prosecutors that this should go forward  federal offense so he's been into a forty months which is right up near the maximum for what he could have received had he been tried in state court even with this record even with his record that's that's right  now north carolina if it wanted to it could enact its own armed career criminal act is elected not to do so and i would note that because north carolina no longer automatically restores firearm rights for people like mr burleson the decision in this case would be fairly narrow right you would not be opening the floodgates because under the care and decision of the supreme court if you do not regain your firearm rights therefore your rights are not restored or section one twenty one and therefore the federal probation section one twenty two g would kick into effect for you so for anybody who has a felony after ninety ninety five in north carolina ruling in favor of mr burleson in this case we think would be of no prior conviction for which the defendant's rights have not been restored is quote an essential element of a nine twenty two g offense so i certainly the second of the three arguments we present on appeal is adequately preserved we would argue briefs i think we may have added one or two cases in that territory but there's same basic fear which is that it's a violation of due process to convict somebody of a crime when they don't meet all the elements  and he filed an informal pro se brief in this court where he essentially really argued all the same points as he did in the district court so i think you know to the extent this was brought up in the district court it maps onto what's probably before this co i don't want to beat a dead horse here but i'll just get into the grammar and stress the text of section nine twenty one which we think is so powerful for our case here in referring to such restoration it necessarily has to be the case that  law in effect at the time of restoration is what the court looks to for this express the provides in court as the fifth circuit pointed out in us born it just cannot be the case that quote such restoration includes that had not been passed at the time the senate regained his or her rights and you know the grammar of the matter also under the supreme court's decision the supreme court mentioned there that when congress uses the present perfect   grammar expert but i did spend a year corking for a grammar expert and i've come to appreciate it well i think i'll reserve the rest of my time for a bottle and just say restrictions in ninety seven the one starting in ninety seven one of the fallen could possess firearms generally when his civil rights were restored there are different variations of when that happened and it also pistols after his restoration of civil rights and discharge prison and then in the summer of nine hundred ninety five which is the act really concerned about here they totally ban phones from possessing pist outside of their home they could still possess weapons on hand they made that act retroactive specifically end of december two thousand and four they expanded that ban but and in passing section nine twenty one congress intentionally overrule the directors and supreme court decision which i believe came through this court where this recorded hell that federal law controls the federal state law trope and that's what this case is really about does the north carolina general assembly determine whether those convict these convictions are situation under federal law now particularly in light of the first se apply part of state law namely a part that was repealed twenty years ago in mighty ninety five that seems to be contrary to congress and since you know in that first sentence  restores firearms rights and mr burleson rights were only two peripherally restored for thirty three months they were retroactively strips and nights ninety five so it was not a they deal with the same statutes nine twenty one they deal with the not too ninety five north carolina farm sac they do the two thousand and four north carolina act and there  maybe perhaps coming close but not quite there because the west virginia statute issue was prospected only and never stripped hayes of any restored firearms rights that was two thousand and six case whether to try to appeal some issues that are not relevant here the district court did not deny twenty four counts and the government cross appealed and made the exact same arguments that we are needle that don't examine footnote six going to new where the court explains several years after that it's never addressed this issue of subsequent legislation that retroactively strips respect that roe i think they're writing another several other aspects too because they didn't they don't look at the whole of north carolina laws as court has instructed us to do for so long and they concentrate on the grammar as mr king just did it in one phrase over the objective of the entirety of section one hundred twenty one which is to give predominance to state law the certificate there is a certificate and it doesn't refer to a restriction on firearms in the statutes doesn't matter whether they're retroactive prospect or whatever they were passed they just ignore  offices and under the state law they were required to file a copy with the county where is prosecuted and the government has searched mcdonald town in north carolina and there's no copy of it there which leads me to show how difficult i notice a grown up times like that how difficult the defendant's position how impractical it would be to implement because when you have these earlier convictions there are no records as  database of when i saw rights for a store as i mentioned before ninety seventy five defendants had to go into coors in north carolina in the spirit corps and have their rights and it will also generate an enormous number twenty to fifty five's not necessarily the nine twenty two g area but there are a lot of these old convictions out there having have been having  difficult to administer i think it's exactly the opposite if this court follows the rule in mcqueen where the court a federal court applying sections nine twenty one and one twenty two g just looks to how many felony convictions do you have since you were last allowed to possess firearms under state law right so a very simple analysis here the answer is zero in any case not not a difficult thing to do i would i would know about the  certificate that the certificate appendix one twenty that the united states now seems to question in some way they did not question in their brief and in fact they put it in the record in the district court without questioning it so i think department of public safety makes these certificates a duplicate of them available on request we have in the mail here from the director of that part which we'd be happy to lodge with the court if you'd like to see it explaining the process of how those duplicates are made on the purpose of section nine twenty one to the extent it's relevant to the extent that the text is not crystal clear which we believe that it is you can find the purpose in the supreme court's logan decision from two thousand and seven which indicates that the purpose of section nine twenty one is to give effect to state laws not generally but to state laws providing dispensation in relieving offenders from the consequences of their prior convictions so it's in effect a one way r to the purpose of section nine twenty one is not to give effect to state law just whatever it happens to say at any time but to look at what such restoration says i think one way you can confirm that is to look at the other terms in section one twenty one expunge pardon set aside those are all things that relieve the offender from the consequences of his or her prior conduct so i think that's additional contextual evidence of purpose  twenty one is not a nullity in any of those circuits and that so because what constitutes a conviction shall be defined under state law it's true mr burleson has many convictions but what we need to find out here is a whether his rights have been restored it's speedy that they were and b whether such restoration expressly provides that he may not possess firearms so i think there's nothing at all about our interpretation that would render the first sentence another way that's just simply incorrect as the supreme court said it karen beecham and judge gregory as you indicated here today federal law governs the us in the application of that unless clause in the second sentence of section one twenty one that's needed reasons to go against those i'll give you a couple of very briefly first in here just in the court was not fully present with the issues it's true there is a one or a two sentence footnote in the government's brief in harrison that mentions in passing  the cases from other circuits there's a very brief passing mention to haynes but there's no discussion of it and i think more importantly if you look to the appellants briefs in harrison you won't find any substantive discussion of haynes notwithstanding the fact that  court has disagreed for twenty five years with the seven circuits approach to the statute so that in itself is probably a sufficient basis to not follow harrison but in addition in two thousand and twelve two years after harrison was decided  inconsistent with the plain language of section one twenty one they don't parse its text you can look at them the brady decision as just a sentence the course to aspire to look at this issue i see that my time has expired