FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30083 Plaintiff-Appellee,

D.C. No.

v.  CR-03-05136-RJB

JAMES DAVID BRAILEY, JR., OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted

January 10, 2005—Seattle, Washington

Filed May 19, 2005

Before: Mary M. Schroeder, Chief Judge, Susan P. Graber,

and Raymond C. Fisher, Circuit Judges.

Opinion by Chief Judge Schroeder

5433
COUNSEL

Peggy Sue Juergens, Seattle, Washington, for the defendantappellant. 

John J. Lulejian and Andrew R. Hamilton, Assistant United

States Attorneys, Seattle, Washington, for the plaintiffappellee. 

OPINION

SCHROEDER, Chief Judge: 

James David Brailey appeals his conditional guilty plea

conviction for being a prohibited person in possession of a

UNITED STATES v. BRAILEY 5435
firearm in violation of 18 U.S.C. § 922(g)(9). Brailey stands

convicted of a misdemeanor crime of domestic violence that

would qualify him as a prohibited person. He nevertheless

maintains he comes within the federal statute’s exception for

persons convicted of misdemeanors who have had their “civil

rights restored.” See 18 U.S.C. § 921(a)(33)(B)(ii). He claims

that his rights have been “restored” because the Utah statutes,

as amended in 2000, provide that persons convicted of misdemeanors are no longer prevented from possessing a firearm

under Utah state law. See Utah Code Ann. § 76-10-503

(2004). 

We agree with the district court that the state statutory

amendment did not “restore” Brailey’s “civil rights” within

the meaning of the federal law. We therefore affirm the conviction. 

The background is not complicated. Brailey was originally

convicted of aggravated assault in the third degree, a felony

under Utah Code Ann. § 76-5-103 (2004). His guilty plea

admitted he assaulted his wife. An assault against a cohabitant comes within the Utah definition of a crime of “domestic violence.” Utah Code Ann. § 77-36-1(2). He completed his sentence in 1996. In 1997, the Utah court granted

his petition to reduce his felony conviction to a class A misdemeanor assault pursuant to Utah Code Ann. § 76-3-402. 

In 1997, no person convicted of a crime of violence under

Utah law, whether a misdemeanor or felony, could possess a

dangerous weapon. Three years later, in 2000, however, the

Utah legislature changed its law to permit a person convicted

of a misdemeanor to possess a firearm. Utah Code Ann. § 76-

10-503 (2004). Thus Brailey now stands convicted of a misdemeanor crime of domestic violence under Utah law, and his

possession of a firearm did not violate Utah law. The issue

here is whether it violated federal law. 

[1] The federal statute of which Brailey stands convicted

provides, in relevant part, as follows:

5436 UNITED STATES v. BRAILEY
It shall be unlawful for any person who has been

convicted in any court of a misdemeanor crime of

domestic violence, to ship or transport in interstate

or foreign commerce, or possess in or affecting commerce, any firearm or ammunition . . . . 

18 U.S.C. § 922(g)(9) (2004). The definition of “misdemeanor crime of domestic violence” contains an exception which,

in relevant part, states: 

A person shall not be considered to have been convicted of such an offense for purposes of this chapter

if the conviction has been expunged or set aside, or

is an offense for which the person has been pardoned

or has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil

rights under such an offense) unless the 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)(33)(B)(ii) (2004). The legal issue is

whether Brailey’s conviction of a misdemeanor crime of

domestic violence has been “expunged or set aside, or is an

offense for which [he] has been pardoned or has had civil

rights restored.” There is no issue with respect to the legal

effect of the reduction of the conviction from a felony to misdemeanor. 

[2] Brailey’s misdemeanor conviction has not been

expunged or set aside, and he has not been pardoned. Brailey

argues that he comes within the language of the exception for

one who has had “civil rights restored.” One can qualify for

that exception only if the applicable state law provided for the

loss of civil rights upon conviction in the first place. Under

the language of the federal statute, a central question thus

becomes whether the law of Utah ever provided for the loss

of civil rights for misdemeanor convictions. 

UNITED STATES v. BRAILEY 5437
[3] Brailey’s misdemeanor conviction did not deprive him

of the right to vote. The Utah Constitution, art. IV, § 6 provides that only those convicted of a felony, treason, or voter

fraud lose that right. Nor did he lose the right to sit as a juror.

Under Utah Code Ann. § 78-46-7, only convicted felons lose

the right to serve as jurors. Nor did he lose the right to hold

public office, essentially for the same reason. See Utah Code

Ann. § 20A-9-203(1)(c) (“[A]ny person convicted of a felony,

or any person convicted of treason or a crime against the elective franchise may not hold office in this state until the right

to . . . hold elective office is restored as provided by statute”).

The district court therefore correctly stated that when Brailey’s conviction was changed from a felony to a misdemeanor

crime of domestic violence in 1997, he “did not lose any ‘core

civil rights’, (the right to vote, the right to serve on a jury, and

the right to hold public office).” Thus, Brailey’s civil rights

could not have been “restored” in 2000 within the meaning of

the federal exception because his misdemeanor conviction

had not resulted in the loss of his civil rights as expressly

required to qualify for the federal exception. 

[4] Brailey relies on the Supreme Court’s decision in Caron

v. United States, 524 U.S. 308, 313-14 (1998), in which the

Court interpreted a statute that contains language different

from the provision we are now required to interpret. Caron

establishes, however, that while the restoration of civil rights

enjoyed under state law by persons convicted of crimes is

governed by state law, federal law governs whether a person’s

possession of a firearm violates a federal statute. 

Citing from Caron, Brailey argues that the 2000 amendment to Utah law (allowing misdemeanants to possess firearms) is a state law to which the federal law must give “full

effect.” Caron decided that the defendant could be convicted

of possession of a firearm, in his case a rifle, under federal

law, even though his possession of the rifle was permitted

under state law. Caron’s holding, therefore, is that federal

5438 UNITED STATES v. BRAILEY
law, not state law, controls the right of a defendant to bear a

firearm under a federal statute. 

[5] Most of the other circuits to have addressed the question

before us have concluded, as we do, that in states where civil

rights are not divested for misdemeanor convictions, a person

convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception. See United

States v. Jennings, 323 F.3d 263, (4th Cir.), cert. denied, 540

U.S. 1005 (2003); United States v. Barnes, 295 F.3d 1354

(D.C. Cir. 2002); United States v. Smith, 171 F.3d 617 (8th

Cir. 1999). As the Fourth Circuit noted in Jennings, the common definition of the word “restore” means “ ‘to give back

(as something lost or taken away).’ ” 323 F.3d at 267 (quoting

McGrath v. United States, 60 F.3d 1005, 1007 (2d Cir.

1995)). When a defendant’s “civil rights were never taken

away, it is impossible for those civil rights to have been

‘restored.’ ” Id. As these courts have also observed, misdemeanants whose civil rights are never revoked can still qualify for the exception of § 921(a)(33) by the other enumerated

methods of absolution, such as expungement or pardon.

Barnes, 295 F.3d at 1368; see also Jennings, 323 F.3d at 275

(stating that the defendant “has other avenues he can pursue

to fall within the . . . exception of 18 U.S.C.

§ 921(a)(33)(B)(ii)”). Consequently, we agree with those circuits holding that, in states where civil rights are not removed

for a misdemeanor conviction of a crime of domestic violence, an individual convicted of such a misdemeanor “cannot

benefit from the federal restoration exception.” Smith, 171

F.3d at 623. 

One circuit has disagreed, seeing an inconsistency in a

scheme that bars misdemeanants who have never had their

civil rights removed from possessing a gun, but allowing

those who have had their rights removed, but then restored, to

possess a gun. See United States v. Wegrzyn, 305 F.3d 593,

595 (6th Cir. 2002) (holding that misdemeanants under Michigan law cannot be convicted under 18 U.S.C. § 921(a)(33)

UNITED STATES v. BRAILEY 5439
(B)(ii) because their civil rights were never lost). We do not

believe this reasoning is sound. Not all persons convicted of

a misdemeanor become prohibited persons; only those convicted of a misdemeanor crime of domestic violence are persons prohibited from possessing guns. Such persons have

been found guilty of violent behavior in a domestic setting,

and Congress could reasonably conclude that weapons markedly increase the risk of serious injury in such situations.

Moreover, we agree with the Fourth Circuit that it is reasonable for persons who have benefitted from a state procedure

to determine their fitness to exercise civil rights to be permitted to bear arms under federal law. “Congress reasonably

could [have concluded] that misdemeanants who had been

through a state’s restoration process and had regained their

civil rights were more fit to own firearms than misdemeanants

who had not lost their civil rights, had not had their convictions expunged, or had not been pardoned.” Jennings, 323

F.3d at 275. 

[6] Because Brailey’s misdemeanor conviction did not

remove Brailey’s core civil rights of voting, serving as a juror,

or holding public office, his civil rights have not been “restored” within the meaning of federal law by Utah’s 2000

amendment permitting him to possess a firearm. Under federal law, a conviction for a misdemeanor crime of domestic

violence makes firearm possession a federal crime. Brailey

stands convicted of such a misdemeanor crime of domestic

violence and he was properly charged with committing a federal crime. 

The judgment of the district court is AFFIRMED. 

5440 UNITED STATES v. BRAILEY