PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-7215

JOSEPH OSBORNE KAHOE, III, a/k/a

Joseph Kahoe,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CR-95-386-A, CA-96-722-AM)

Argued: December 1, 1997

Decided: January 28, 1998

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by published opinion. Judge Wilkins wrote the opinion, in

which Judge Niemeyer and Judge Michael joined.

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COUNSEL

ARGUED: Charles Shepherd Cox, Jr., Alexandria, Virginia, for

Appellant. Marcus John Davis, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee.

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OPINION

WILKINS, Circuit Judge:

Joseph Osborne Kahoe, III appeals a decision of the district court

denying his petition for relief pursuant to 28 U.S.C.A. § 2255 (West

1994 & Supp. 1997) from his conviction of being a felon in possession of a firearm and ammunition. See 18 U.S.C.A. § 922(g)(1) (West

Supp. 1997). Kahoe maintains that the district court erred in concluding that his conviction should not be set aside on the basis that the

predicate felony for the § 922(g)(1) offense was vacated subsequent

to his commission of that offense. We affirm the judgment of the district court.

I.

In March 1994, Kahoe pled guilty in the district court for the District of Columbia to carrying a firearm during and in relation to a drug

trafficking offense. See 18 U.S.C.A. § 924(c)(1) (West Supp. 1997).

In August 1994, while he was on release pending sentencing, Kahoe

was found to be in possession of a firearm and ammunition and subsequently was convicted of violating 18 U.S.C.A. § 922(g)(1), with the

March 1994 conviction serving as the disabling predicate felony.

Thereafter, a district court in the District of Columbia set aside

Kahoe's March 1994 conviction, ruling that § 2255 relief was appropriate in light of the decision of the Supreme Court in Bailey v. United

States, 116 S. Ct. 501 (1995) (holding that a firearm must be actively

employed to satisfy the "use" prong of § 924(c)(1)). Having obtained

relief from the underlying predicate felony, Kahoe next moved the

district court for the Eastern District of Virginia for § 2255 relief from

his § 922(g)(1) conviction, arguing that the latter conviction could not

stand once the underlying predicate conviction had been set aside.

The district court denied relief, holding that its decision was controlled by Lewis v. United States, 445 U.S. 55 (1980).

II.

Section 922(g)(1) provides, "It shall be unlawful for any person ...

who has been convicted in any court of[ ] a crime punishable by

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imprisonment for a term exceeding one year ... to .. possess in or

affecting commerce[ ] any firearm or ammunition." The term "crime

punishable by imprisonment for a term exceeding one year" is defined

in 18 U.S.C.A. § 921(a)(20) (West Supp. 1997). In general,

§ 921(a)(20) defines this term to exclude various offenses relating to

business practices and offenses classified by state law as misdemeanors punishable by two years imprisonment or less. Of particular relevance here, § 921(a)(20) also states:

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.

18 U.S.C.A. § 921(a)(20) (emphasis added). Kahoe contends that

because the "crime punishable by imprisonment for a term exceeding

one year" that provided the disabling predicate offense for his

§ 922(g)(1) conviction--i.e., his March 1994 conviction--has now

been "set aside," it does not qualify as a conviction for purposes of

§ 922(g)(1), and thus his § 922(g)(1) conviction cannot stand.

In Lewis v. United States, 445 U.S. 55 (1980), the Supreme Court

addressed whether a prior state felony conviction supplied the necessary predicate conviction for a violation of 18 U.S.C. app.

§ 1202(a)(1) (Supp. IV 1969)--proscribing"[a]ny person who ... has

been convicted by a court of the United States or of a State ... of a

felony" from possessing a firearm--if the predicate offense was subject to collateral attack under Gideon v. Wainwright, 372 U.S. 335

(1963). The Court held that such an offense did supply the predicate

conviction. The Court first reasoned that the sweeping and unambiguous language of § 1202(a)(1) prohibited possession of a firearm by

any person who had been convicted of a felony. See Lewis, 445 U.S.

at 60-61. That the disabling conviction was unconstitutionally

obtained did not alter the fact that the defendant had been convicted

of a felony at the time he possessed the firearm. See id.

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Turning from the language of the statute itself, the Court concluded

that "[o]ther provisions ... demonstrate[d] and reinforce[d] its" reading

of § 1202(a)(1). Id. at 61. Specifically, the Court found persuasive

that 18 U.S.C. app. § 1203 (Supp. IV 1969) enumerated certain

exceptions to § 1202(a)(1), but did not include an exception for one

"whose outstanding felony conviction ultimately might turn out to be

invalid for any reason." Id. at 62. Thus, the Court ruled, § 1202(a)(1)

stood "in contrast with other federal statutes that explicitly permit a

defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony." Id.

The Court also determined that the structure of the Omnibus Crime

Control and Safe Streets Act of 1968, which enacted§ 1202, supported its reading of the statute. See id. at 63-64. The Court noted that

§ 1202--which was a portion of Title VII of the Act--was enacted

contemporaneously with § 922(g) and (h)--which were in Title IV of

the Act--and explained that these provisions created categories of

presumptively dangerous persons who were prohibited from possessing firearms:

Actually, with regard to the statutory question at issue here,

we detect little significant difference between Title IV and

Title VII. Each seeks to keep a firearm away from"any person ... who has been convicted" of a felony, although the

definition of "felony" differs somewhat in the respective

statutes. But to limit the scope of §§ 922(g)(1) and (h)(1) to

a validly convicted felon would be at odds with the statutory

scheme as a whole. Those sections impose a disability not

only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted

of the felony charge. Since the fact of mere indictment is a

disabling circumstance, a fortiori the much more significant

fact of conviction must deprive the person of a right to a

firearm.

Id. at 64.

Having determined that the statute was not ambiguous, the Court

held that it was necessary neither to apply the rule of lenity nor to

construe the statute in a manner that avoided the question of whether

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an invalid conviction constitutionally could provide a predicate

offense. See id. at 65. And, the Court concluded that use of an invalid

conviction did not violate the equal protection guarantee of the Due

Process Clause of the Fifth Amendment because there was a rational

basis to believe that a felony conviction, even an invalid one, was an

adequate basis on which to prohibit firearm possession. See id. at 65-

66. Moreover, the Court specifically ruled that the use of an invalid

conviction as a disabling predicate for a § 1202(a)(1) conviction was

not inconsistent with Loper v. Beto, 405 U.S. 473 (1972); United

States v. Tucker, 404 U.S. 443 (1972); and Burgett v. Texas, 389 U.S.

109 (1967), in which the Court held that uncounseled convictions

could not be used for impeachment purposes during the trial of a subsequent offense, to enhance a sentence, or to serve as a predicate conviction for a recidivist statute. See Lewis, 445 U.S. at 60, 66-67. The

Court reasoned:

In each of those cases, this Court found that the subsequent

conviction or sentence violated the Sixth Amendment

because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not

on reliability, but on the mere fact of conviction, or even

indictment, in order to keep firearms away from potentially

dangerous persons. Congress' judgment that a convicted

felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled

from dealing in or possessing firearms because of potential

dangerousness is rational.

Id. at 67. In closing, the Court emphasized that "a convicted felon

may challenge the validity of a prior conviction, or otherwise remove

his disability, before obtaining a firearm." Id.

Kahoe recognizes that the broad reasoning of Lewis, if applicable,

is fatal to his position. But, he argues that Lewis is distinguishable

because subsequent to that decision, Congress amended § 921(a)(20)

in 1986 to include the language stating that a conviction that has been

"set aside ... shall not be considered a conviction for purposes of this

chapter." Kahoe contends that this amended language, contrary to that

at issue in Lewis, evinces congressional intent that a conviction that

has been vacated may not serve as a disabling predicate felony to sup-

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port a § 922(g)(1) conviction. We agree with the district court, however, that the Lewis decision is controlling; nothing in the amendment

or the legislative history of the amendment indicates an intent to overrule Lewis.

The plain language of § 921(a)(20) means that a conviction that has

been set aside can no longer be disabling.1 The language does not provide that such a conviction was not disabling between the time it was

obtained and the time it was set aside. See United States v. Lee, 72

F.3d 55, 58 (7th Cir. 1995) (rejecting a defendant's argument that

Lewis did not survive the amendment to § 921(a)(20) and thus that he

could not be convicted under § 922(g)(1) since his prior conviction

was expunged after the possession at issue but prior to trial); United

States v. Chambers, 922 F.2d 228, 238 (5th Cir. 1991) (stating that

even "convictions deemed void ab initio under state law for reasons

classified as jurisdictional nevertheless remain convictions for purposes of section 922(g) until set aside"); United States v. Davis, 753

F. Supp. 529, 531 (D. Vt. 1990) (rejecting argument identical to that

raised by Kahoe). And, the legislative history of the amendment supports this conclusion. Subsequent to Lewis, the Supreme Court

decided Dickerson v. New Banner Institute, Inc. , 460 U.S. 103 (1983),

which held that a state court conviction remained a conviction for

purposes of § 922(g)(1) even though the possession occurred after the

conviction had been removed by the state from the defendant's

record. See id. at 110-22; see also Thrall v. Wolfe, 503 F.2d 313 (7th

Cir. 1974) (same). The Senate report indicates that§ 921(a)(20) was

amended in response to Dickerson and Thrall. The report cited

Dickerson and Thrall and provided that§ 921(a)(20)

would exclude from such convictions any for which a person has received a pardon, civil rights restoration, or

expungement of the record. Existing law incorporates a similar provision with respect to pardons in 18 U.S.C. app.

1202, relating to possession of firearms, but through over-

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1 Of course, § 921(a)(20) leaves open the possibility that such a conviction nevertheless may remain a "crime punishable by imprisonment for

a term exceeding one year" if 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.A. § 921(a)(20).

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sight does not include any conforming provision in 18

U.S.C. 922, dealing with their purchase or receipt. This

oversight, which resulted in a ruling that a state pardon does

not permit a pardoned citizen to receive or purchase a firearm, despite the express provision in the pardon that he may

possess it, would be corrected. In the event that the official

granting the pardon, restoration of rights, or expungement of

record does not intend that it restore the right to firearm

ownership, this provision honors that intent as expressly

provided in the order or pardon.

S. Rep. No. 98-583, at 7 (1984) (footnote omitted). By contrast, the

Senate report did not cite to Lewis or discuss application of its rule.

See id. Neither the amended language of § 921(a)(20) nor the legislative history of the amendment counsels a result contrary to that set

forth in Lewis, and we determine that Lewis is controlling.

Even so, one court of appeals has accepted Kahoe's reading of

§ 921(a)(20). In United States v. Pettiford, 101 F.3d 199 (1st Cir.

1996), the court considered whether a sentencing enhancement

imposed under the Armed Career Criminal Act (ACCA) of 1984, 18

U.S.C.A. § 924(e) (West Supp. 1997), was subject to collateral attack

after the vacatur of several state convictions that had served as the

basis for the enhancement. Section 924(e)(1) provides a mandatory

minimum 15-year sentence for one convicted of violating § 922(g)

who "has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug

offense, or both, committed on occasions different from one another."

18 U.S.C.A. § 924(e)(1). By referencing § 922(g)(1), § 924(e)(1)

incorporates the definition of § 921(a)(20) for a "crime punishable by

imprisonment for a term exceeding one year." Accordingly, the meaning of the amended language of § 921(a)(20) with respect to a subsequently vacated conviction was at issue in Pettiford.

Without analysis of or citation to Lewis or the legislative history of

the amendment to § 921(a)(20), the Pettiford court rejected the Government's argument that the pertinent language of§ 921(a)(20) "indicate[d] that only past offenses vacated prior to the federal proceeding

may be discounted by the court," determining that the provision "read

equally well if applied to convictions expunged, etc., subsequent to

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the federal sentencing." Pettiford, 101 F.3d at 201. On this basis, the

court concluded that the rule of lenity applied and, thus, that

§ 921(a)(20) must be read to require that a subsequently vacated conviction is not a "crime punishable by imprisonment for a term exceeding one year." See id.

We cannot accept this reasoning. Assuming that the Pettiford court

was correct in concluding that the amended language of § 921(a)(20)

is ambiguous because it is as easily read to apply to convictions that

are set aside after the commission of the firearm possession as to

those that are set aside before it, an application of the rule of lenity

nevertheless would be inappropriate.2 The rule of lenity does not

apply unless a "`grievous ambiguity or uncertainty,'" Chapman v.

United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v.

United States, 415 U.S. 814, 831 (1974)), remains even after we have

looked to the language, structure, and legislative history of the statute,

see Moskal v. United States, 498 U.S. 103, 108 (1990). See United

States v. Wildes, 120 F.3d 468, 471 (4th Cir. 1997) (same), petition

for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 22, 1997) (No. 97-6533);

United States v. Mitchell, 39 F.3d 465, 470 (4th Cir. 1994) (same).

Here, the legislative history makes plain that the purpose of the

amendment to § 921(a)(20) was to overrule Dickerson and Thrall,

with the result being that a felony conviction would no longer be a

disabling circumstance after the conviction was set aside unless the

remaining conditions of the section are met. Furthermore, the structure of the statutory provisions indicates that Congress intended to

establish disabling classes of presumptively dangerous individuals not

limited to those who are validly convicted. See Lewis, 445 U.S. at 64;

see also 18 U.S.C.A. § 922(n) (West Supp. 1997) (prohibiting possession of a firearm by one indicted for a "crime punishable by imprison-

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2 We note that we are not called upon to decide the ultimate question

before the court in Pettiford--whether a defendant is entitled to § 2255

relief if a district court relied upon a prior conviction to enhance a federal

sentence and subsequently the prior conviction was set aside. We recognize that the Supreme Court left that issue open in Custis v. United

States, 511 U.S. 485, 497 (1994). Here, however, as in Lewis, the prior

conviction was used to impose a civil firearms disability, not in a way

that depended upon the reliability of the prior conviction. See Lewis, 445

U.S. at 67.

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ment for a term exceeding one year"). Therefore, we disagree with the

Pettiford court that the rule of lenity has application in this circumstance.

III.

For the foregoing reasons, we hold that Lewis dictates that the fact

that Kahoe's conviction was vacated after he possessed the firearm

and ammunition is irrelevant. The portion of § 921(a)(20) providing

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

year" shall not include "[a]ny conviction which has been ... set aside"

means that after a conviction has been set aside it is no longer a disabling circumstance unless the remaining requirements of that section

are met. Therefore, because Kahoe's March 1994 conviction was a

disabling predicate offense when he possessed the firearm and ammunition, we affirm the denial of § 2255 relief.

AFFIRMED

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