FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-10363 Plaintiff-Appellant,

D.C. No.

v.  CR-03-00908-SMM

RAYMOND JAYSON SIMPSON,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Argued and Submitted

June 17, 2005—San Francisco, California

Filed March 27, 2006

Before: Richard C. Tallman, Jay S. Bybee, and

Carlos T. Bea, Circuit Judges.

Per Curiam Opinion

3289
COUNSEL

Paul K. Charlton, U.S. Attorney, Michael T. Morrissey, Chief,

Appellate Section, and Kimberly M. Hare, Assistant U.S.

Attorney, Phoenix, Arizona, for the appellant. 

Barbara L. Spencer, Spencer, Hubbard & Glitsos, Phoenix,

Arizona, for the appellee. 

OPINION

PER CURIAM: 

Petitioner United States (“the government”) appeals the

District Court of Arizona’s dismissal of its indictment charging appellee Raymond Simpson with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The

government argues the district court improperly relied on the

underlying facts of Simpson’s previous felony conviction,

rather than on the “categorical approach,” to find that Simpson’s conviction did not constitute a “felony involving violence” under Arizona Revised Statute (A.R.S.) § 13-

3101(5)(b) (1989).1 We conclude that because Simpson had

his civil rights restored and was not classified as a convicted

felon under Arizona law, he was not a felon in possession for

purposes of § 922(g)(1). Accordingly, we affirm. 

I. BACKGROUND

In April 1988, Simpson engaged in sexual relations with a

fourteen-year-old girl. As a result, the Maricopa County

1A.R.S. § 13-3101(5)(b) (1989), defining a prohibited possessor of a

firearm, was moved in 1991 to A.R.S. § 13-3101(6)(b) with no change in

the language. Although the district court cited to the 1991 version of the

statute, because Simpson was convicted in 1989, we cite to A.R.S. § 13-

3101(5)(b) (1989). 

UNITED STATES v. SIMPSON 3291
Attorney charged Simpson with three counts of sexual conduct with a minor, all class two felonies and dangerous crimes

against children in the first degree. Simpson pled guilty to

attempted sexual abuse of a minor in violation of A.R.S. § 13-

1404, and was sentenced to two years of probation. Simpson

served his probation and had his probation discharged on May

7, 1991, in accordance with A.R.S. § 13-912. 

On August 28, 2003, a federal grand jury indicted Simpson

on the charge of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Simpson

filed a motion to dismiss the indictment which the district

court granted. Reviewing United States v. Meza-Corrales, 183

F.3d 1116, 1128 (9th Cir. 1999),2 the district court considered

whether Simpson could be charged under 18 U.S.C.

§§ 922(g)(1) and 924(a)(2), and found “that the Arizona judge

sentenced the Defendant to two years probation after he pled

guilty to attempted sexual abuse of a minor only because he

apparently determined, under the facts of this particular case,

that the commission of the offense did not in fact involve violence.” Finding that A.R.S. § 13-912(A) substantially restored

Simpson’s rights on successful completion of his probationary

period, the district court concluded that “under the facts of

this particular case, the Defendant’s prior conviction for

attempted sexual abuse of a minor was not a felony involving

violence, and thus he was not a prohibited possessor within

the meaning of A.R.S. § 13-3101.” The district court granted

Simpson’s motion to dismiss the indictment. The government

appeals the district court’s dismissal. 

2Meza-Corrales applied a two-step analysis for a felon-in-possession

charge to “(1) determin[e] whether [the Defendant’s] civil rights had not

been restored under Arizona law” and, if they had been restored, (2) to

“determin[e] whether [the Defendant’s] right to possess a firearm nonetheless somehow still was restricted in an express manner under Arizona

law.” 183 F.3d at 1128. 

3292 UNITED STATES v. SIMPSON
II. STANDARD OF REVIEW

This court reviews questions of law de novo, Milenbach v.

Commissioner, 318 F.3d 924, 930 (9th Cir. 2003), and

reviews findings of fact for clear error. Nunes v. Mueller, 350

F.3d 1045, 1051 (9th Cir. 2003). This court also reviews de

novo whether a prior conviction may be used as a predicate

offense in a prosecution under 18 U.S.C. § 922(g)(1). United

States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001). 

III. ANALYSIS

[1] 18 U.S.C. § 922(g) provides, in relevant part, that “[i]t

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 . . . possess . . . any firearm . . . .”

18 U.S.C. § 921(a)(20) defines when an individual is considered “convicted” for purposes of § 922(g):

What constitutes a conviction of [a crime punishable

by imprisonment for a term exceeding one year]

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. 

(emphasis added). At the time of Simpson’s 1989 conviction,

A.R.S. § 13-3101(5)(b) defined a prohibited possessor as,

inter alia, “any person [who] has been convicted within or

without this state of a felony involving violence . . . and

whose civil rights have not been restored.”

3

 Thus, our inquiry

3This aspect of § 13-3101 was amended in 1994 to define a prohibited

possessor as “any person [who] has been convicted within or without this

UNITED STATES v. SIMPSON 3293
is a “two-step analysis” that considers (1) whether Simpson’s

civil rights were restored after his 1989 conviction and, if so,

(2) whether Arizona law has nevertheless expressly prohibited

Simpson from possessing a firearm. See Meza-Correales, 183

F.3d at 1128. 

A. Whether Simpson’s Civil Rights Were Restored 

[2] At the time of Simpson’s arrest, A.R.S. § 13-904(A)

provided that 

A conviction for a felony suspends the following

civil rights of the person sentenced: 

1. The right to vote. 

2. The right to hold public office of trust or profit.

3. The right to serve as a juror. 

4. During any period of imprisonment any other

civil rights the suspension of which is reasonably necessary for the security of the institution

in which the person sentenced is confined or for

the reasonable protection of the public. 

Accordingly, as of 1989, Arizona law did not suspend Simpson’s right to possess a firearm.4

 In addition to having some

rights automatically suspended under § 13-904(A), Simpson

was subject to several standard restrictive terms and regulastate of a felony or who has been adjudicated delinquent and whose civil

right to possess or carry a gun or firearm has not been restored.” A.S.C.

§ 13-3101(6)(b). 

4

In 1994, A.R.S. § 13-904 was amended to add a fifth suspension item:

“The right to possess a gun or firearm.” Because Simpson was convicted

in 1989 and discharged from probation in 1991, this amendment is not

applicable to him. 

3294 UNITED STATES v. SIMPSON
tions during the course of his two-year probation. Standard

Term 11 provided that Simpson could not “possess, control,

or own any firearms, ammunition, explosives, deadly weapons, or prohibited weapons as defined by A.R.S. § 13-3101.”

[3] The record also demonstrates Simpson satisfactorily

completed his two-year probation, and was released from its

restrictive terms. Upon completion of his probation, Simpson’s rights that had been suspended under § 13-904(A) were

automatically restored to him. A.R.S. § 13-912(A) (1991) provides, in relevant part, that 

Upon completion of the term of probation . . . any

person who has not previously been convicted of any

other felony shall automatically be restored any civil

rights which were lost or suspended by the conviction. 

The record indicates that Simpson had not been convicted of

any other felony. Thus, upon completion of his probationary

period in 1991, all of Simpson’s civil rights that had been suspended or restricted because of his 1989 conviction were

restored to him by operation of law. 

B. Whether Arizona Expressly Prohibited Simpson From

Possessing A Firearm 

Having determined that Simpson’s civil rights were

restored following the conclusion of his probation, we turn to

the second question: has Arizona law otherwise expressly prohibited Simpson from possessing a firearm? Meza-Corrales,

183 F.3d at 1128. The answer is a straight-forward “no.” In

1989, A.R.S. § 13-904(A) suspended only Simpson’s rights to

vote, hold public office, and serve as a juror, and those rights

were restored by operation of law under § 13-912(A). The

probation-term restriction against possessing a firearm

expired—as did all of the other terms of Simpson’s probation

—at the conclusion of his probationary term. Accordingly,

UNITED STATES v. SIMPSON 3295
Arizona law did not expressly prohibit Simpson from possessing a firearm following the end of his probation. 

The government argues that the restrictive term prohibiting

Simpson from possessing a firearm during his two-year probation survived the end of that probation, and that Simpson

failed to take the steps necessary to restore his right to possess

a firearm. This claim is erroneous. The government points out

that in 1991, A.R.S. § 13-912(B) provided that § 13-912(A)

“does not apply to a person’s right to possess weapons as

defined in § 13-301 unless he applies to a court pursuant to

the procedures of § 13-906.” However, Simpson’s right to

possess a firearm was never formally and indefinitely suspended in the same manner as were his rights to vote, hold

office, and serve as a juror. Rather, the restrictions placed on

Simpson’s right to possess a firearm—as well as those placed

on his right to be free of search and seizure absent probable

cause—are more aptly described as special conditions

imposed by the court which applied only for the period of

probation (i.e., two years) and no longer. Thus, § 13-912(B)’s

limitation is inapposite. 

[4] Moreover, even if we were to countenance the government’s assertion that the probation-period restrictions on

Simpson’s right to possess a firearm somehow survived the

end of his probation, Arizona law certainly did not expressly

provide that Simpson could not possess a firearm following

his probation, as it must where his civil rights have been

restored. See 18 U.S.C. § 922(g).5 Our conclusion is in harmony with our decision in Meza-Corrales, 183 F.3d at 1129-

30. In that case, the government sought to bring felon-inpossession charges against a former Arizona prisoner, a first5While §§ 13-904(A) and 13-3101(5)(b) were amended in 1994 and

now expressly provide that a felon may not possess a firearm even after

his probationary term is ended, we of course may not apply this law retroactively to those, like Simpson, whose civil rights had already been

restored prior to the 1994 amendments. 

3296 UNITED STATES v. SIMPSON
time felon whose rights were restored to him under § 13-

912(A) following his detention. We held that § 13-904(A) did

not suspend the former prisoner’s right to possess a firearm,

and that § 13-912(A) restored to him all of his civil rights.

The former prisoner’s right to possess a firearm was undoubtedly restricted during his incarceration; yet we concluded that

there were no express restrictions on the former prisoner’s

right to possess a firearm following his release and that, in the

absence of some express restriction, § 13-912(B) was inapposite:

[A]lthough it is true . . . that A.R.S. § 13-912(B)

expressly provided that A.R.S. § 13-912(A) did not

apply to past felons so far as the automatic restoration of their rights to possess firearms was concerned, that provision had no relevance for step (2)

of the analysis . . . . [A.R.S. § 13-912(B)] did

expressly provide that it would not restore a past

felon’s right to possess a firearm, but it did not

expressly provide that he was prohibited from doing

so if he had not lost the right previously (i.e., Arizona’s restoration law did not give back anything that

was formerly taken away, but at the same time, it did

not take away anything that was not formerly taken

away). 

Id. (internal citations omitted)). Accordingly, we conclude

that nothing in Arizona law expressly prohibited Simpson

from possessing a firearm following the end of his probation.

IV. CONCLUSION

[5] Simpson’s civil rights were fully restored after he successfully completed his probation and Arizona law did not

expressly prohibit him from possessing a firearm. Accordingly, under Arizona law, he was not properly considered

“convicted” for purposes of § 922(g). For the reasons stated,

the district court properly dismissed Simpson’s indictment.

AFFIRMED. 

UNITED STATES v. SIMPSON 3297