United States Court of Appeals

Fifth Circuit

FILED

August 8, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-20636

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES CHENOWITH, 

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is the denial of Charles Chenowith’s

motion, pursuant to his civil-rights restoration, to quash

(dismiss) his indictment. He claims that restoration precluded his

prior Ohio felony conviction from serving as the predicate offense

for his felon-in-possession charge. VACATED and REMANDED.

I.

In August 2004, Special Agents with the Bureau of Alcohol,

Tobacco, Firearms, and Explosives found a revolver while executing

a search warrant at Chenowith’s residence. That September, he was

indicted for knowingly and unlawfully possessing the revolver in
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and affecting interstate or foreign commerce, subsequent to being

convicted of a crime punishable by imprisonment for a term

exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The predicate felony was a 1974 manslaughter to which

Chenowith had pleaded guilty in Ohio.

Pre-trial, Chenowith moved to dismiss the indictment,

claiming, inter alia, it failed to allege a prior conviction as

defined in 18 U.S.C. § 921(a)(20), because he had received a

certificate from Ohio in 1978 restoring the rights forfeited by his

Ohio conviction, namely his rights to vote, serve on juries, and

hold public office. That motion was denied.

Chenowith was convicted by a jury. In May 2005, he was

sentenced, among other things, to 12 months and one day

imprisonment. He is free on bail, pending appeal.

II.

Chenowith primarily claims the district court erred in not

dismissing his indictment because his Ohio conviction did not serve

as a predicate offense for purposes of § 922(g)(1). (Because

Chenowith prevails on this issue, we need not reach his claims that

the district court erred by: admitting evidence of a prior felony

conviction from Louisiana; not sua sponte giving a limiting

instruction regarding that conviction; denying his requested

instruction limiting the predicate offense for the felon-in-
3

possession charge; giving a deliberate-ignorance instruction; and

denying an acceptance-of-responsibility reduction.)

Chenowith presents two claims regarding the refusal to

dismiss. First, he asserts that, under 18 U.S.C. § 921(a)(20), his

Ohio conviction was not a felon-in-possession predicate offense

because his civil rights had been restored in Ohio. (Because this

claim has merit, we need not reach his second claim — his Ohio

conviction was the result of an invalid plea.)

“The question whether a felony conviction may serve as a

predicate offense for a prosecution for being a felon in possession

of a firearm pursuant to § 922(g)(1) is purely a legal one”, for

which we have plenary review. United States v. Daugherty, 264 F.3d

513, 514 (5th Cir. 2001) (internal citation and quotation marks

omitted), cert. denied, 534 U.S. 1150 (2002).

Section 922(g) provides: “[A]ny person ... who has been

convicted in any court of[] a crime punishable by imprisonment for

a term exceeding a year” is prohibited from, inter alia, possessing

“any firearm or ammunition”. 18 U.S.C. § 922(g). Concerning

whether Chenowith’s Ohio conviction served as a predicate offense,

§ 921(a)(20) proscribes certain felony convictions from being so

used. It states, in part:

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 ... for which a

person ... has had civil rights restored shall
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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) (emphasis added).

Chenowith contends a Final Release and Restoration certificate

from the Ohio Adult Parole Authority, effective 1 November 1978,

restored his civil rights. Stating that, “[s]ince being granted a

parole from the institution, [Chenowith] ha[d] conducted [him]self

satisfactorily as demonstrated by [his] conduct and ability”, it

restored, pursuant to “the Authority of the Section 2967.16

[granted to] the Adult Parole Authority[,] ... the rights and

privileges forfieted [sic] by [his] conviction; namely, the right

to vote if ... otherwise eligible, to serve on juries and to hold

public office”. As noted, the certificate was expressly granted

pursuant to Ohio law, § 2967.16; in 1978, the statute stated in

relevant part:

When a paroled prisoner has faithfully

performed the conditions and obligations of

his parole and has obeyed the rules and

regulations adopted by the adult parole

authority that apply to him, the authority

upon the recommendation of the superintendent

of parole supervision may enter upon its

minutes a final release and thereupon shall

issue to the paroled prisoner a certificate of

final release, but no such release shall be

granted earlier than one year after the

prisoner is released from the institution on

parole unless his maximum sentence has expired

prior thereto, and in the case of a prisoner
5

whose minimum sentence is life imprisonment,

no such release shall be granted earlier than

five years after the prisoner is released from

the institution on parol. 

A prisoner who has served the maximum

term of his sentence or who has been granted

his final release by the adult parole

authority shall be restored to the rights and

privileges forfeited by his conviction.

OHIO REV. CODE ANN. § 2967.16(A) (1974) (emphasis added).

Our court undertakes a two-pronged inquiry to determine

whether the restoration of rights disqualifies a prior felony

conviction from serving as the felon-in-possession predicate

offense. United States v. Osborne, 262 F.3d 486, 489 (5th Cir.

2001); see United States v. Thomas, 991 F.2d 206, 213 (5th Cir.)

(“[r]emaining faithful to the Ninth Circuit’s two-step approach” in

United States v. Gomez, 911 F.2d 219, 221 (9th Cir. 1990)), cert.

denied, 510 U.S. 1014 (1993). First, we consider whether

Chenowith’s civil-rights restoration was sufficient to meet the

requirements of § 921(a)(20). Thomas, 991 F.2d at 211, 213; see

Osborne, 262 F.3d at 489 (asking whether, by individual

certification or operation of law, “essentially all civil rights”

were restored (internal citation omitted)). Second, if such rights

were restored sufficiently, we examine whether he “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
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underlying conviction”. Thomas, 991 F.2d at 213 (emphasis in

original). 

A.

For determining whether civil rights have been sufficiently

restored, our court has held: “[I]f, 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 ... such felon’s civil

rights have been restored for purposes of § 921(a)(20)”. Id. at

212-13. Because Chenowith’s final-release certificate restored

each of these three rights, his civil rights were sufficiently

restored for purposes of § 921(a)(20). See id.; see also United

States v. Bost, 87 F.3d 1333, 1335 (D.C. Cir. 1996) (“It is

generally agreed that the ‘civil rights’ referred to in section

921(a)(20) are the rights to vote, to hold elective office, and to

serve on a jury.” (citing United States v. Caron, 77 F.3d 1, 2 (1st

Cir. 1996); United States v. Cassidy, 899 F.2d 543, 549 (6th Cir.

1990); and Thomas, 991 F.2d at 212-13)). 

B. 

As discussed, because Chenowith’s civil rights were restored

sufficiently, we next “determine whether [he] 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”. Thomas, 991 F.2d at 213 (emphasis in
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original). Circuit courts are divided regarding whether, for this

second inquiry, we look only to the certificate of restoration to

decide if it expressly limits Chenowith’s rights with regard to

firearms, or whether we look to all of Ohio statutory law to decide

if any statute prohibits convicted felons from possessing firearms.

See Bost, 87 F.3d at 1335 (stating the Seventh, Ninth, and this

circuit adhere to the former approach; the Fourth, Sixth, and

Tenth, the latter). Along this line, Ohio law provides: “[N]o

person shall knowingly acquire, have, carry, or use any firearm”

while under disability, including having previously “been convicted

of any felony offense of violence”. OHIO REV. CODE ANN. § 2923.13.

Although our court has never squarely considered the situation

where a defendant’s civil rights were restored affirmatively by

certificate, rather than by operation of law, we at least

contemplated such a scenario in Thomas, 991 F.2d at 209-16. See

Daugherty, 264 F.3d at 516 n.5 (“This circuit has considered only

situations in which the defendant’s civil rights were passively

restored by operation of state law.” (citing Thomas and United

States v. Dupaquier, 74 F.3d 615, 617-19 (5th Cir. 1996))). Thomas

considered whether the defendant was nevertheless expressly

prohibited from possessing a firearm, distinguishing between

restoration of civil rights by operation of law and “an affirmative

or active restoration (with certificate)”. 991 F.2d at 213. 
8

Regarding active restoration, Thomas agreed with the Seventh

Circuit:

“If 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 [point blank] that [firearms] are not

kosher.”

Id. (first and third alterations and emphasis in original; second

alteration in Erwin) (quoting United States v. Erwin, 902 F.2d 510,

512-13 (7th Cir.), cert. denied, 498 U.S. 859 (1990)).

Chenowith’s civil rights were restored by his final-releaseand-restoration certificate, not by operation of law. Although the

Government contends his rights were restored automatically, his

certificate was granted, as discussed, under the discretionary

authority provided by § 2967.16. As quoted earlier, it states, in

part: “[T]he [Ohio Adult Parole Authority,] upon the

recommendation of the superintendent of parole supervision[,] may

enter ... a final release and thereupon shall issue to the paroled

prisoner a certificate of final release”. OHIO REV. CODE ANN. §

2967.16(A) (emphasis added). Chenowith’s restoration of rights was

not automatic. 

The Government also asserts § 2961.01 of Ohio’s Revised Code

supports its contention that Chenowith’s rights were restored by
9

operation of law. That statute, however, merely states a convicted

felon may not vote, serve on a jury, or hold office in Ohio, but

that the convicted felon may vote following his final discharge.

OHIO REV. CODE ANN. § 2961.01. 

In Bost, 87 F.3d at 1335, the D.C. Circuit considered both of

the above Ohio statutes, concluding Bost’s rights were restored in

1982 by a combination of certificate and operation of law. Section

2961.01 restored his right to vote upon receiving a final

discharge; his certificate under § 2967.16 expressly restored his

rights to hold office and serve on a jury. OHIO REV. CODE ANN. §§

2961.01 and 2967.16; see Bost, 87 F.3d at 1334 (quoting the

certificate as restoring “the right to serve on juries and to hold

office of honor, trust, or profit”, while noting the “right to vote

was restored automatically by statute”). In addition, Bost noted

that, although § 2923.13 “prohibits convicted felons from

possessing, acquiring, or using firearms”, § 2923.14 nevertheless

“prescribes the procedures by which state firearm privileges may be

restored”. 87 F.3d at 1336 (citing OHIO REV. CODE ANN. §§ 2923.13 and

2923.14). Because neither § 2961.01 (which restored the right to

vote) nor § 2967.16 (under which the certificate restored the right

to serve on a jury and hold office) imposed a restriction on a

convicted felon’s possessing a firearm, however, the court

concluded Bost recovered his rights “through a combination of

sources that d[id] not expressly restrict his rights with respect
10

to firearms”; accordingly, the felony at issue could not serve as

the felon-in-possession predicate offense. Id. at 1337.

It is unknown why Bost’s certificate did not restore all three

rights, as authorized by § 2967.16. In any event, its failure to

do so has no bearing on the disposition of the issue at hand.

Here, Chenowith’s civil rights being restored pursuant to

certificate, not by operation of law, is even stronger than in

Bost, where the certificate restored only the rights to serve on

juries and hold office. Id. at 1336. As discussed, Chenowith’s

certificate restored all three rights. 

Furthermore, Chenowith’s certificate is silent regarding

possessing firearms. This is significant because, as quoted

earlier, § 921(a)(20)’s plain language provides that a conviction

for which a person’s civil rights have been restored shall not

serve as the predicate offense “unless such ... restoration of

civil rights expressly provides that the person may not ship,

transport, possess, or receive firearms”. 18 U.S.C. § 921(a)(20)

(emphasis added). Therefore, consistent with the D.C., Seventh,

and Ninth Circuits, we construe this language to mean we “may look

no further than the source of the restoration of ... civil rights

to see whether ... gun-related rights have been restricted”. Bost,

87 F.3d at 1336; see United States v. Herron, 45 F.3d 340, 343 (9th

Cir. 1995) (holding Congress has instructed to look at the
11

certificate of restoration for whether there is a firearm

restriction, not all state law); United States v. Glaser, 14 F.3d

1213, 1218 (7th Cir. 1994) (“When the state gives the person a

formal notice of restoration of civil rights, ... the final

sentence of § 921(a)(20) instructs us to look, not at the contents

of the state’s statute books but at the contents of the

document.”). But see Cassidy, 899 F.2d at 549-50 (looking “to the

whole of [Ohio] law”, regardless of whether the restoration was by

certificate or operation of law, and concluding the earlierreferenced Ohio Revised Code § 2923.13 expressly prohibited Cassidy

from possessing a firearm); see also United States v. Burns, 934

F.2d 1157, 1160 (10th Cir. 1991) (following Cassidy), cert. denied,

502 U.S. 1124 (1992); United States v. McLean, 904 F.2d 216, 218

(4th Cir.) (same), cert. denied, 498 U.S. 875 (1990). But see

Thomas, 991 F.2d at 210 n.20 (noting this court’s “lingering

doubts” regarding the Sixth Circuit’s holding in Cassidy,

particularly “[c]onsidering the ‘expressly provides’ language

pointed to by the Erwin court”). 

This interpretation comports with § 921(a)(20)’s plain

language. Therefore, we decline to follow Cassidy’s reliance on §

921(a)(20)’s legislative history. See Bost, 87 F.3d at 1336 (“A

resort to legislative history is uncalled for ... because [§

921(a)(20)’s] instructions are clear.”). 
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Because the certificate is the source of Chenowith’s civilrights restoration, and because it does not expressly prohibit his

possessing firearms, the district court erred in denying his motion

to dismiss his indictment. See id. at 1338 (holding “[b]ecause

neither the certificate nor the statute [of Ohio civil-rights

restoration] contain[ed] any language expressly limiting [the]

right to possess a firearm, ... [defendant was] not subject to

prosecution under section 922(g)”). 

III.

For the foregoing reasons, Chenowith’s conviction and sentence

are VACATED and this matter is REMANDED to district court with

instructions to dismiss the indictment. 

VACATED AND REMANDED