1 Pub. L. No. 99-308, 100 Stat. 449 (1986).

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 92-8343

_____________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENRY DAVID THOMAS,

Defendant-Appellant.

_________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________

(May 11, 1993)

Before WIENER, BARKSDALE, and DEMOSS, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Henry David Thomas appeals his conviction

of possession of firearms by a previously convicted felon under 18

U.S.C. § 922(g)(1). He asserts that because, under Texas law, his

prior Texas felony conviction does not bar the firearms possession

for which he was convicted in federal district court, his federal

prosecution was barred by the exceptions to § 922(g)(1) created by

18 U.S.C. § 921(a)(20), the Firearm Owners Protection Act of 1986

(FOPA).1 Disagreeing with Thomas's reasoning and finding no

reversible error, we affirm.
 

2 See 18 U.S.C. § 921(a)(20).

 

3 The guns that Thomas possessed were seized from four

sources. On August 30, 1991, Thomas sold a semi-automatic pistol

to a Drug Enforcement Officer. That sale was the only act of

possession mentioned in the 1991 indictment, and it was the basis

of the first count of the 1992 indictment. On October 7, 1991,

agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF)

executed three search warrants, finding guns at Thomas's

residence, his business, and in his automobile. Those guns were

the bases of counts two, three, and four of the 1992 indictment.

 

4 TEX. PENAL CODE ANN. § 46.05 (West 1989).

2

I

FACTS AND PROCEDURAL HISTORY

Thomas was originally indicted on one count of possession of

a firearm by a convicted felon under § 922(g) in October 1991.

That indictment was dismissed on Thomas's motion because his

predicate state felony conviction had been set aside under Kansas

law.2 In January 1992, Thomas was again indicted for violating §

922(g)))this time on four counts.3 The predicate state felony

conviction for this indictment was a 1959 Texas conviction for

"felony theft," a non-violent felony in Texas.

Thomas argued to the district court, and he asserts on appeal,

that the government could not properly prosecute him under § 922(g)

because he had not lost the right to possess a firearm under Texas

law as a result of his felony conviction. In Texas, possession of

a firearm by a non-violent felon is not proscribed. Only a violent

felon is prohibited from "possess[ing] a firearm away from the

premises where he [or she] lives."4 Thomas reasons that, as he is

not prohibited from possessing a firearm under Texas law, his civil

rights have been fully "restored" for the purposes of § 921(a)(20),
 

5 We note that it is not clear from the record whether the

Kansas conviction would be an acceptable predicate offense under

§ 922(g). See our discussion below.

3

and thus he is not subject to conviction under § 922(g). 

The district court denied Thomas's motion to dismiss the

indictment based on that argument, and the jury convicted him on

all four counts. Thomas timely appealed.

II

ANALYSIS

In his appeal, Thomas relies on two theories. His primary

argument is that, as he was not prohibited from possessing a

firearm under Texas law, he could not and did not violate § 922(g).

He also asserts that his re-indictment under § 922(g) with four

counts))as opposed to one in the original indictment))demonstrates

prosecutorial vindictiveness, thereby violating his due process

rights. We address these arguments in inverse order.

A. Prosecutorial Vindictiveness

The original indictment was dismissed because the prior

conviction on which it was based))the Kansas conviction))had been

set aside and thus was not available as a predicate offense under

§ 922(g). Thomas states that during the plea negotiations under

the first indictment, the prosecutor had assured Thomas that if he

would plead guilty to the one count of violating § 922(g),

predicated on the Kansas felony conviction,5 the government would

not charge him with the other violations of which it had evidence.
 

6 See United States v. Lopez, 923 F.2d 47, 49 (5th

Cir.)(citing United States v. Brunson, 915 F.2d 942, 944 (5th

Cir. 1990)), cert. denied, __ U.S. __, 111 S. Ct. 2032 (1991). 

Concerning the merits of Thomas's vindictiveness argument, see

United States v. Goodwin, 457 U.S. 368, 376-80 (1982);

Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978); United States

v. Molina-Iguado, 894 F.2d 1452, 1453-55 (5th Cir.), cert.

denied, 498 U.S. 831 (1990).

4

Thomas argues that because he asserted his right to be charged

properly under § 922(g), the prosecutor vindictively raised the

stakes in the second indictment. Thomas concedes that this claim

was raised for the first time on appeal. As no manifest injustice

will result from Thomas being charged additionally with federal

firearms crimes he clearly committed, we reject his vindictiveness

claim.6

B. Texas Felons with Guns

The principal thrust of Thomas's insistence that he was

wrongfully convicted under § 922(g) is that when the law of the

state that obtained the predicate felony conviction does not

proscribe possession of a firearm at the time and in the manner at

issue, federal law does not criminalize such possession. Although

this issue, which involves the interaction of states' laws with §§

921(a)(20) and 922(g)(1), has been addressed by several other

federal circuit courts, it is a matter of first impression in our

court. And, as this question is purely a legal one, our review is

plenary.

Under § 922(g)(1) it is unlawful for anyone "who has been

convicted in any court of a crime punishable for a term exceeding
 

7 18 U.S.C. § 922(g)(1) (1988 & Supp 1992).

 

8 United States v. Essick, 935 F.2d 28, 29 (4th Cir. 1991).

 

9 See United States v. Cassidy, 899 F.2d 543, 546-49 & nn.

9, 11 (6th Cir. 1990).

 

10 18 U.S.C.S. § 921(a)(20) (Supp. 1992)(emphasis added).

5

one year . . . [to] possess . . . any firearm . . . which has been

shipped or transported in interstate commerce."7 As our colleagues

on the Fourth Circuit have accurately observed, however, "[t]he

clarity of [§ 922(g)(1)] is clouded by 18 U.S.C. § 921(a)(20)."8

Section 921(a)(20) was added to the Federal Gun Control Act by FOPA

in 1986 to give federal effect to state statutes that fully

"restore" the civil rights of convicted felons when they are

released from prison, or are granted a pardon, or have their

convictions expunged. In effect, FOPA gave the states' statutes

federal effect by allowing the state that obtained the conviction

to determine eligibility of the felon to possess a firearm without

violating federal law.9

Since its enactment, § 921(a)(20) has been an integral element

of the definition of "felony" or, more precisely, of the term

"crime punishable by imprisonment for a term exceeding one year"

found in § 922(g)(1). It provides:

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 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.10
 

11 935 F.2d at 30.

 

12 932 F.2d 318, 322 (4th Cir.), cert. denied, 112 S. Ct.

323 (1991).

 

13 Essick, 935 F.2d at 30 (citing and discussing N.C. GEN.

STAT. §§ 13-1, 13-2 (1986)).

 

14 Id. (emphasis omitted).

6

Thomas asserts that his civil rights have been "restored" under the

Texas Penal Code because he is not prohibited by state law from

possessing a firearm. Before addressing his claim, we shall

analyze the rulings of the other circuit courts on this matter.

1. Background

The Fourth Circuit construed state law interaction with §

921(a)(20) in United States v. Essick11 and United States v.

Etheridge.

12 In Essick, that court reversed a conviction of

possession of a firearm predicated on a North Carolina conviction.

The court looked to North Carolina's prisoner release statute,

which provided that upon the unconditional discharge of an inmate

by the state department of corrections, the "rights of citizenship

[that were] forfeited, shall [be] restored," and the "agency or

court having jurisdiction over the person whose rights are restored

. . . [shall] automatically and immediately issue a certificate

evidencing the restoration of such rights."13 The Essick court held

that the mandatory issuance of the certificate and the explicit

restoration language of the statute "clearly restored the general

citizenship rights of an ex-felon, and that such restoration

included the limited right to possess firearms."14 The court held
 

15 Etheridge, 932 F.2d at 322-23.

 

16 902 F.2d 510, 512-13 (7th Cir.), cert. denied, 498 U.S.

859 (1990).

7

that because the government had failed to prove that Essick's right

to possess firearms under North Carolina law was limited))after

five years North Carolina felons have the unlimited right to

possess firearms))he could not be convicted under § 922(g).

By contrast, that same circuit court in Etheridge held that

Virginia's statutes had not restored the rights of a convicted

felon to possess a firearm. The court did not describe either the

state statute or any certificate issued by the state specifically

restoring the rights of released felons. We construe such silence

to indicate that no general restoration of rights statute or

certification provision existed in Virginia at the time. The

Etheridge court noted that a procedure was contained in the

Virginia Code under which a convicted felon might proceed

affirmatively to seek restoration of his right to possess a

firearm.15 That procedure was not automatic, however, and Etheridge

had not availed himself of it. For those reasons, among others,

the court held that for purposes of § 921(a)(20) his civil rights

had not been "restored" under Virginia law because his right to

carry a firearm had not been restored; thus, his conviction under

§ 922(g)(1) was not obtained in error.

In United States v. Erwin,

16 the Seventh Circuit held that the

applicable provisions in Illinois did not "restore" convicted

felons' rights to possess firearms. The Illinois statutes
 

17 Cassidy, 899 F.2d at 544.

 

18 Id. at 545 n.5.

 

19 This is discussed more below. See infra notes 24-25 and

accompanying text.

8

contained only a negative option: Upon release from prison, a

felons' rights would be restored automatically unless a particular

authority proscribed restoration. As the state's firearms

licensing authority did not authorize the licensing of guns to

convicted felons, their rights were not in fact restored. The

Erwin court held that possession of a firearm by a felon whose

predicate conviction was obtained under Illinois law would be a

violation of § 922(g)(1).

The Sixth Circuit addressed the restoration issue in United

States v. Cassidy, and reversed the dismissal of a count under §

922(g)(1). The Cassidy court examined Ohio law, which mandated the

issuance of a "Restoration Certificate" that "restored 'the rights

and privileges forfeited by conviction; namely the right to serve

on juries and hold offices of honor, trust, or profit.'"17 Although

the certificate "was silent concerning firearms," Ohio law

specifically provided that convicted felons could not possess

firearms.18 The court analyzed which rights needed to be restored

to a convicted felon for his or her "civil rights" to be considered

restored for purposes of § 921(a)(20).19 The court found that

Cassidy's civil rights had been restored, but that he was subject

to conviction under § 922(g) "because he was expressly restricted
 

20 Cassidy, 899 F.2d at 550. As was pointed out in Erwin,

902 F.2d at 512-13, the correctness of part of the Sixth

Circuit's holding is questionable. The Cassidy court stated, by

way of a footnote, that a convicted felon who received a general

restoration of rights certificate, which was restricted by a

state law that prohibited possession of a firearm by a convicted

felon, could be prosecuted under § 922(g)(1) even though he was

not given notice of the restriction. 899 F.2d at 549 n.5. 

Considering the "expressly provides" language pointed to by the

Erwin court, 902 F.2d at 513, we have lingering doubts about this

holding of the Sixth Circuit. See infra notes 36-38 and

accompanying text.

 

21 United States v. Gomez, 911 F.2d 219, 221 (9th Cir.

1990).

 

22 United States v. Ramos, 961 F.2d 1003, 1008 (1st Cir.),

cert. denied, 113 S. Ct. 364 (1992).

9

under state law from possessing a firearm."20 We read Cassidy as

ruling that to be protected by § 921(a)(20) from a conviction under

§ 922(g)(1) the felon must have all of his civil rights "restored"

and not be prohibited by any provision of law of the state of

conviction from possessing a firearm as well.

Two other circuits that have addressed this issue are the

First and the Ninth. The Ninth Circuit adopted a substantial part

of the reasoning of the Sixth Circuit's Cassidy opinion; the First

Circuit has struck off in another direction. In reaching their

respective decisions, the Ninth Circuit determined that "Congress

had [unambiguously] manifested its intention,"21 and the First

Circuit "read the plain language of §§ 921(a)(20) and 922(g)(1), as

well as the legislative history."22 Despite reading the same

unambiguous material, however, the two courts reached very

different results.

In United States v. Gomez, the Ninth Circuit performed a two-
 

23 18 U.S.C. § 921(a)(20).

 

24 911 F.2d at 220 (citations omitted)(quoting Cassidy, 899

F.2d at 548-49).

10

step analysis. First, it focused on which "civil rights" were

referred to in the phrase "had civil rights restored" and whether

essentially all of those civil rights had been restored to the

felon by the subject state. Finding that they had, the court then

sought to determine additionally whether "such . . . restoration of

civil rights" by the subject state "expressly provides that [a

convicted felon] may not ship, transport, possess, or receive

firearms."23

In discussing first the meaning of the words, "had civil

rights restored," the Gomez court stated:

To determine whether a convicted felon's civil

rights have been restored within the meaning of section

921(a)(20), we look to the whole of state law. In

enacting section 921(a)(20), "[t]he intent of Congress

was to give effect to state reforms with respect to the

status of an ex-convict. A narrow interpretation

requiring that we look only to the document, if any,

evidencing a restoration of rights, would frustrate the

intent of Congress." 

There need not be a "full" restoration of rights.

"If Congress had intended a requirement of a complete

restoration of all rights and privileges forfeited upon

conviction, it could easily have so stated." Congress

chose not to impose such a requirement.24

To determine what group of restored rights would be less than a

"full" restoration yet constitute a sufficient restoration to meet

the requirements of § 921(a)(20), the Ninth Circuit has looked to

the Cassidy opinion. In Cassidy the Sixth Circuit had stated:

Congress intended to encompass those rights accorded to

an individual by virtue of his [or her] citizenship in a

particular state. These rights include the right to
 

25 Cassidy, 899 F.2d at 549, quoted in United States v.

Dahms, 938 F.2d 131, 133 (9th Cir. 1991). The Dahms court

interpreted Michigan prisoner release statutes and was later

disagreed with on its interpretation of them. See United States

v. Driscoll, 970 F.2d 1472, 1478-79 (6th Cir. 1992).

 

26 Gomez, 911 at 221.

 

27 18 U.S.C. § 921(a)(20).

11

vote, the right to seek and hold public office and the

right to sit on a jury.25

Having thus elected to follow Cassidy, the Ninth Circuit now looks

to see whether the state of conviction of the predicate offense

restores the felon's rights to vote, to hold public office, and to

serve on a jury, to determine whether the felon's "civil rights"

have been restored.

The Gomez court therefore examined the Idaho law concerning

the rights of released prisoners. Section 18-310 of the Idaho code

expressly "restore[s] the full rights of citizenship" of released

felons. Also, the court interpreted the laws of Idaho as allowing

discharged felons to vote and serve on juries.26 This was

sufficient for the Ninth Circuit to find that Gomez's civil rights

had been restored for purposes of § 921(a)(20).

After thus determining that Gomez's civil rights had been

restored, the Ninth Circuit looked to see whether the Idaho's

restoration of rights "expressly provide[d] that the [convicted

felon] may not ship, transport, possess, or receive firearms,"27

reasoning that if it found that Idaho law placed no such

restriction on convicted felons, the felons would not be subject to

conviction under § 922(g). Finding that Idaho placed no such
 

28 911 F.2d at 222.

 

29 961 F.2d at 1006.

 

30 Id. at 1007. Although Ramos's two prior convictions were

classified misdemeanors under Massachusetts law, they each

carried maximum sentences of two and a half years and thus

qualified under § 922(g)(1)'s "more than one year" definition.

12

restriction on convicted felons, the court held that Gomez's

conviction "must [be] overturn[ed]."28

The First Circuit read the "plain language" of § 921(a)(20)

quite differently. The defendant in United States v. Ramos29 argued

that "because as a convicted misdemeanant in Massachusetts, he

never lost any of his civil rights except, temporarily, for the

period of his probation term," his rights had been restored ipso

facto.30 The court reviewed the operation of the Massachusetts

statutes, under which the convicted misdemeanant was never stripped

of his civil rights (e.g., the rights to vote, hold public office,

be a police officer, or carry a firearm) except while actually in

custody or on probation. The court framed the issue as

whether an individual residing in a jurisdiction which

does not strip him or her of any civil rights as a

collateral consequence of conviction should be deemed, as

appellant urges, to have had his civil rights "restored"

for the purposes of § 922(a)(1) [sic], after having

served his/her sentence.

The Ramos court analyzed the word "restored" and determined

that a "restoration" of civil rights did not occur for purposes of

§ 922(g)(1) if the state merely released the prisoner. The court

concluded that, even though))in a general sense))the convict's civil

rights are "recovered" upon release from prison, to interpret that

general, passive recovery of rights as co-extensive with §
 

31 Id. at 1008 n.6.

 

32 Id. at 1008 (emphasis added).

 

33 Id. 

 

34 Gomez, 911 F.2d at 221.

13

921(a)(20)'s provision that the prisoner has not been convicted for

purposes of § 922(g)(1) if he or she has actively "had civil rights

restored," would effectively "mak[e] the exception so broad as to

swallow § 922(g) entirely."31 The Ramos court stated that "[t]he

point [of § 921(a)(20)] is not just that civil rights were never

lost, but that, following conviction, such rights were

affirmatively restored."32 As Ramos's civil rights had never been

affirmatively "restored" by the Commonwealth of Massachusetts, his

possession of a firearm violated § 922(g)(1).

The principal difference between the First Circuit's approach

in Ramos and the Ninth Circuit's approach in Gomez is that the

First Circuit flatly requires an "affirmative[] restor[ation]" of

civil rights if the defendant is to come within the ambit of §

921(a)(20)33; that court simply refuses to address the rhetorical

question "how could a jurisdiction ever 'restore' civil rights to

a felon or misdemeanant whose rights were never forfeited?"))while

the Ninth Circuit "decline[d] to accept the government's suggestion

that the federal statute only recognizes restoration by individual

affirmative act."34 We find more persuasive the Ninth Circuit's

holding that an "affirmative act" or restoration is not required by

§ 921(a)(20), agreeing that "[i]f Congress intended to require an

individual affirmative act of restoration by the state, Congress
 

35 Id.

14

could have so provided."35 With all due respect for the nicely

reasoned opinion in Ramos, we find ourselves unable to embrace an

interpretation that results in convicting a person under § 922(g)

who has never lost his civil rights and who is not prohibited by

the state from possessing a gun while simultaneously immunizing

from such a conviction one who was stripped of his civil rights,

including gun possession, but has subsequently had them

affirmatively "restored." We are simply unwilling to pass through

the looking glass into such a Wonderland, when, as here, we are not

absolutely forced to do so.

For purposes of the instant case, the operative words of §

921(a)(20) provide: "Any conviction . . . for which a person . .

. has had civil rights restored shall not be considered a

conviction for purposes of this chapter . . . ." We are convinced

that if, upon release from prison, the suspension of a convicted

felon's rights to, inter alia, vote, hold public office, and sit on

a jury evaporates ipso facto, simply because he or she ceases to be

in custody or on probation, such felon's civil rights have been

restored for purposes of § 921(a)(20). Simply because those rights

are reinstated automatically by operation of law, they are no less

"restored" than are such rights that have been resurrected by an

"affirmative act" of the state.

Remaining faithful to the Ninth Circuit's two-step approach,

when henceforth we find that the state which obtained the

underlying conviction revives essentially all civil rights of
 

36 Erwin, 902 F.2d at 512-13.

 

37 Id. at 513 (citing United States v. Kolter, 849 F.2d 541

(11th Cir. 1988)).

15

convicted felons, whether affirmatively with individualized

certification or passively with automatic reinstatement, we shall

then determine whether the defendant was nevertheless expressly

deprived of the right to possess a firearm by some provision of the

restoration law or procedure of the state of the underlying

conviction. To determine whether such a state's law does or does

not "expressly provide[] that a person may not ship, transport,

possess, or receive firearms," in the case of an affirmative or

active restoration (with certificate), we shall cleave to the

reasoning of the Seventh Circuit in its Erwin opinion, for we agree

that

[i]f the state sends the felon a piece of paper [or

certificate] implying that he is no longer "convicted"

and that all civil rights have been restored, a

reservation in a corner of the state's penal code can not

be the basis of a federal prosecution. A state must tell

the felon that [firearms] are not kosher.36

In the case of passive (or automatic) restoration of civil rights,

however, we cannot disabuse ourselves of some nagging concerns with

the Seventh Circuit's reasoning. In Erwin, that court stated:

When, however, the state sends no document granting

pardon or restoring rights, there is no potential for

deception, and the question becomes whether the

particular civil right to carry guns has been restored by

law.37

The court in Erwin went on to hold that, in the case of passive

restoration of civil rights, "the language [restricting the felon's

right to possess firearms] is no less express when codified [in a
 

38 Id. The court reasoned that West Publishing, not the

State of Illinois, actually "codified" state laws, and that it

simply does not matter in the case of a passive restoration where

West places the statute that restricts the felon's ability to

possess a firearm.

 

39 18 U.S.C. § 921(a)(20) (emphasis added).

16

different part of the state's statutes than the restoration]."38

Were such a fact situation before us today we would find this

expansive reasoning from Erwin difficult to square with that

unambiguous language of § 921(a)(20), which declares that a

conviction for which a person had civil rights restored cannot

serve as the predicate for a conviction under § 922(g) "unless such

. . . restoration of civil rights expressly provides that the

person may not ship, transport, possess, or receive firearms."39

But as this issue clearly is not precisely before us, we shall

neither accept nor reject this part of the Erwin decision,

pretermitting a holding on this facet of that opinion until the

time in the future when this court must take a position on it, one

way or the other, in order to decide the case then before it.

2. Thomas and Texas Law

Thomas insists that his civil rights were "restored" by

operation of Texas law. He argues that, as Texas does not deny

non-violent felons the right to possess firearms following release

from custody, his civil rights were restored for purposes of §

921(a)(20). We disagree. Thomas confuses the specific nonprohibition of possession of a firearm with the general restoration

of all or essentially all civil rights. In their briefs to this
 

40 The current provisions of Texas law that regulate the

information contained in the release given to departing prisoners

do not mandate any broad restoration of rights. See TEX. GOV'T

CODE ANN. § 501.016 (West 1990 & Supp. 1993). Neither did the

Texas provisions in effect when Thomas was released from prison

in 1959 contain such broad provisions. See TEX. REV. CIV. STAT.

ANN. art. 6166z1 historical note (West 1970 & Supp. 1993). 

Compare N.C. GEN. STAT. §§ 13-1, 13-2 (1986), cited and discussed

in Essick, 935 F.2d at 30. 

 

41 See Cassidy, 899 F.2d at 548-49 (quoting and discussing

the comments of Senator Durenberger, 132 Cong. Rec. S14,974

(daily ed. Oct. 3, 1986)).

 

42 Essick, 935 F.2d at 30; see Kolter, 849 F.2d at 541-42

(holding, inter alia, that as the Georgia board of pardons and

paroles had "unqualifiedly restored all the civil and political

rights Kolter had lost as a result of [his conviction],"

presumably under statute or by certificate, his rights had been

restored for § 921(a)(20) purposes).

17

court, neither party discussed Texas's rules concerning a convicted

felon's right to vote, hold public office, or serve on a jury; nor

did they discuss generalized restoration of civil rights under

Texas law. Nevertheless, our independent research reveals that

Texas neither actively nor passively restores all or essentially

all of the civil rights of criminals))even non-violent felons))upon

release from jail.40 We find instead that Texas law provides for

neither the passive, automatic reinstatement of all civil rights

(as Minnesota was represented to do during the debate on the bill

that was passed as FOPA41) nor the active or affirmative revival of

such rights by issuance of a certificate of restoration of all

civil rights of convicted felons following release from custody and

completion of probation (as does North Carolina42).

We also find that Texas does not restore to any felon, whether

violent or non-violent, the three civil rights considered key by
 

43 See TEX. ELEC. CODE ANN. §§ 11.002(4)(A), 13.001(A)(4)(A)

(SUPP. 1993).

 

44 See TEX. ELEC. CODE ANN. § 141.001(4) (WEST 1986).

 

45 See TEX. GOV'T CODE ANN. § 62.102 (West 1988).

 

46 The relevant part of the Texas penal code provides:

§ 46.05. Unlawful Possession of Firearm by Felon

 (a) A person who has been convicted of a felony

involving an act of violence or threatened violence to

a person or property commits an offense if he possesses

a firearm away from the premises where he lives.

 (b) An offense under this section is a felony of the

third degree.

TEX. PENAL CODE ANN. (West 1989).

18

the Ninth and Sixth Circuits))the rights to vote,43 hold public

office,44 and serve on a jury.45 For purposes of the instant

inquiry, then, Texas (and therefore Thomas) fails to meet muster

under any of the approaches of the several circuits that have

addressed the concept of restoration of civil rights as

contemplated in § 921(a)(20).

It is certainly true, as Thomas contends, that Texas does not

prohibit possession of firearms by persons convicted of non-violent

felonies. The sole prohibition of firearms possession by felons

applies only to persons convicted of violent felonies; and even

they may possess firearms within their own residences.46 It does

not follow, though, that Texas's failure to deny Thomas the right

to possess firearms is the functional equivalent of restoring his

civil rights. Such an interpretation simply runs counter to any

court-approved reading of § 921(a)(20). 

That statute, as we have noted, provides that 

[a]ny conviction . . . for which a person . . . has had

civil rights restored shall not be considered a
 

47 18 U.S.C. § 921(a)(20).

19

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.47

The circumstance presented by the instant case is precisely the

opposite of the one described in the statute: In the absence of

the restoration of essentially all civil rights of the convicted

felon as defined for purposes of § 921(a)(20), the felon's isolated

right to possess a firearm is of no import whatsoever. In other

words, even though a generalized restoration of the felon's core

civil rights, such as voting, holding public office, and serving as

a juror, insulates the felon from guilt under § 922(g)(1) by virtue

of § 921(a)(20) if (but only if) the state in question does not

expressly prohibit gun possession, the converse does not follow.

The isolated right to possess firearms, in the absence of

restoration of such core civil rights as well, does not immunize

convicted felons from § 922(g) guilt. If the felon has not "had

civil rights restored," it simply does not matter what the state

law provides concerning possession of firearms. Therefore, only if

we had found that Texas did restore Thomas's civil rights would we

have needed to determine whether Texas expressly prohibited him

from possessing firearms.

We recognize that both the Gomez interpretation by the Ninth

Circuit, which (in combination with the teachings of Erwin) we

adopt today, and the Ramos interpretation by the First Circuit can

lead to anomalous results and to a considerable lack of uniformity,
 

48 99th Cong., 1st Sess., 131 Cong. Rec. S8,689 (daily ed.

June 24, 1985), quoted in Cassidy, 899 F.2d at 549 n.11. Justice

Scalia, continuing his attack on what he views as needless

citation to legislative history, has recently reminded the courts

that just about any interpretation of an act can be supported

with a quote from the legislative history. See Conroy v.

Aniskoff, 113 S. Ct. 1562, 1567-72 (1993)(concurring in the

judgment). We note that, though the application of our

interpretation of the statute to different states' laws will

produce anomalous results, those results could not be considered

"manifestly unintended [or] profoundly unwise." See id. at 1567

n.12 (majority opinion).

20

depending on the purely fortuitous fact of which jurisdiction among

the fifty states obtained the predicate conviction under

examination. Actual or potential aberrant results, however, do not

excuse reading (or writing) anything into or out of a statute that

Congress has so consciously adopted.

We recognize also that the result produced here, by our

following of the Gomez/Erwin approach, could be seen as running

counter to some of the legislative history of FOPA. For example,

Senator Hatch, speaking in favor of FOPA, asserted that "S.49

grants authority to the jurisdiction (State) which prosecuted the

individual to determine eligibility for firearm possession after a

felony conviction or plea of guilty to a felony."48 One could

fairly argue that, given the Texas legislature's determination that

))even without having their civil rights restored))violent felons

should be allowed to possess firearms in their homes and nonviolent felons should be allowed to possess firearms without any

restrictions (unmistakably the effect of § 46.05 of the Texas Penal

Code), the federal government should not impose its own stricter

crime of felon in possession of a firearm. In writing §
21

921(a)(20), however, Congress did not speak in terms of "if the

State allows possession of firearms by a convicted felon, we shall

not make it a crime." Rather, Congress employed the terms "civil

rights" in a manner that eschews any possibility of equating the

narrow concept of a state's non-prohibition of firearm possession

with the infinitely broader concept of restoration of civil rights.

We agree entirely with the conclusions of the Sixth and Ninth

Circuits that "civil rights," as used in § 921(a)(20), must mean

much more than simply the single, narrow right to possess a

firearm.

III

CONCLUSION

Thomas's argument))that, as Texas does not prohibit the

possession of a firearm by one convicted of a non-violent felony,

his civil rights have been "restored" for purposes of §

921(a)(20)))fails. Under our reading of FOPA, Texas neither

actively nor passively restores the civil rights of persons

convicted of such felonies merely by permitting them to possess

firearms or by not declaring their possession of firearms to be

unlawful. Thomas therefore gets no benefit from the applicable

provisions of § 921(a)(20).

Thomas's other claim))that he was vindictively prosecuted))is

raised for the first time on appeal and is tested for plain error

only. This claim is evidenced by nothing more than the bald fact

that the government increased the number of firearms counts brought
22

against him from one in the original indictment to four in the

second indictment. Thomas has presented no material evidence of

vindictiveness in connection with his re-indictment; neither has he

demonstrated that a manifest injustice would result here. Without

more, this claim also fails))there is no plain error.

For the foregoing reasons, Thomas's conviction and sentence

are

AFFIRMED.