In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-4184

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

THOMAS P. VITRANO,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 CR 199—Rudolph T. Randa, Chief Judge.

____________

ARGUED SEPTEMBER 8, 2004—DECIDED APRIL 19, 2005

____________

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Thomas Vitrano pleaded guilty to

one count of possessing a firearm as a felon and to one

count of possessing a firearm while subject to a domestic

abuse injunction in violation of 18 U.S.C. § 922(g). The

Government appeals the district court’s determination that

Mr. Vitrano was not subject to an enhanced sentence under

the Armed Career Criminal Act, 18 U.S.C. § 924(e). For the

reasons set forth in the following opinion, we reverse the

judgment of the district court.
2 No. 03-4184

I

BACKGROUND

On August 28, 2002, Mr. Vitrano’s former girlfriend

contacted the Wisconsin State Police when she discovered

a wrapped birthday present and a birthday card on her

porch. The responding officers later found the “present”

to contain two functioning pipe bombs. As part of their investigation, officers executed a search warrant of Mr. Vitrano’s

residence and found, among other things, a Winchester X

12-gauge shotgun slug. A grand jury returned a single count

indictment under 18 U.S.C. § 922(g)(1) for the unlawful

possession of a firearm by a felon. Law enforcement officers

later discovered that Mr. Vitrano had used a Remington 870

shotgun while duck hunting and that he was the subject of

a domestic abuse injunction in effect from January 29, 2001,

through January 29, 2003. The grand jury therefore returned

a superseding indictment with three additional counts.

Count Two related to Mr. Vitrano’s possession of the shotgun slug while subject to the domestic abuse injunction.

Counts Three and Four related, respectively, to his being a

felon in possession of the Remington shotgun in violation of

§ 922(g)(1), and to his possession of the shotgun while the

subject of the domestic abuse injunction in violation of

§ 922(g)(8)(B). Mr. Vitrano pleaded guilty to Counts Three

and Four.

The Pre-Sentence Investigation Report (“PSR”) noted that

Mr. Vitrano had three previous convictions. Two of those

convictions were for endangering safety regardless of life

and the other was for escape. Despite these convictions, the

PSR did not recommend that Mr. Vitrano be considered an

armed career criminal, see 18 U.S.C. § 924 (e)(1), and therefore did not recommend enhancement of his sentence under

U.S.S.G. § 4B1.4(b)(3)(B).
No. 03-4184 3

1 The PSR indicates that Mr. Vitrano had been discharged from

the 1988 and 1995 convictions as well; he has not challenged the

use of those convictions for purposes of § 924(e)(1).

2 18 U.S.C. § 921(a)(20) provides:

The term “crime punishable by imprisonment for a term

exceeding one year” does not include—

(continued...)

Upon examination of the PSR, the Government filed an

objection. Mr. Vitrano had been discharged from his 1977

conviction after completing his sentence in 1983; in the

Government’s view, this conviction ought to have counted

for purposes of § 924(e)(1).1

 Mr. Vitrano did not produce a

copy of his discharge from the 1977 conviction because it

could not be located. The parties therefore obtained sample

discharge orders from 1983 that had been stored at the

Wisconsin Historical Society. Mr. Vitrano submitted several

sample orders, which all stated “[defendant] be, and hereby

is, discharged absolutely.” R.49. The Government submitted

five types of orders, which provided: (1) “[a]ny civil rights

lost as a result of such judgments of conviction are restored

by virtue of this discharge”; (2) the defendant “be and,

hereby is, discharged absolutely”; (3) “the aforesaid be, and

hereby is, discharged”; (4) the defendant “be, and hereby is,

discharged from said judgment or order only”; and (5) the

defendant “is discharged and released from any further

custody and control of or by the State of Wisconsin.” R.48 at

7.

Before the district court, Mr. Vitrano contended that, no

matter which of the sample discharges he had received, the

1977 conviction could not count under § 924(e)(1) because

none of the forms contained language that expressly would

have notified him that he could not ship, transport, receive

or possess a firearm. In his view, such explicit notification

was required by 18 U.S.C. § 921(a)(20).2

 The Government
4 No. 03-4184

2 (...continued)

(A) any Federal or State offenses pertaining to antitrust

violations, unfair trade practices, restraints of trade, or

other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as

a misdemeanor and punishable by a term of imprisonment of two years or less.

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.

took a different view. It submitted that only the first sample

discharge order would have restored Mr. Vitrano’s civil

rights and, therefore, needed an express firearms reservation; it further contended that Mr. Vitrano could not

establish by a preponderance of evidence that he had received that type of order rather than the remaining four

types.

In addressing the arguments of the parties, the district

court noted, as a threshold matter, that there was no dispute

that Mr. Vitrano had been discharged and that his discharge

order would have matched one of the five sample orders

procured by the parties from the Historical Society. The

district court then expressed the view that the disclosure

requirement of § 921(a)(20) addresses the possibility that a

prisoner will receive one of four categories of discharges: a

type of discharge that informs the defendant his civil rights

are restored, an expungement, a set aside, or a pardon.
No. 03-4184 5

3 The district court referred to § 921(a)(20) as a heightened notice

statute, and it found Mr. Vitrano’s presumable knowledge that he

could not possess a firearm irrelevant. 

4 The district court declined the Government’s offer to brief

whether a discharge order constituted an expungement or a set

aside under Wisconsin law because the court thought federal law

necessary to interpret § 921(a)(20). 

The district court’s discourse with counsel revealed that

the court believed that § 921(a)(20)’s notice requirement

applied to each and every category of discharge that, according to the files of the Historical Society, Wisconsin

might have issued—not just the first category, which recited

that civil rights were restored. Thus, regardless of which of

the five sample discharges Mr. Vitrano had received,

§ 921(a)(20) required the exclusion of his conviction for

purposes of § 924(e)(1) because none would have contained

a firearms reservation.3

 In response to the Government’s

questions, the district court clarified that a discharge could

be characterized as a set aside.4

II

DISCUSSION

We review a district court’s statutory interpretation

de novo. See United States v. Davis, 16 F.3d 212, 214 (7th Cir.

1994). In approaching a question of statutory interpretation,

we begin with the plain wording of the relevant statutory

provisions.

The basics of the statutory scheme are readily ascertainable from a reading of the statutory language. A person who

violates § 922(g) and who has at least three prior convictions

for a violent felony, committed on separate occasions, is

subject to an enhanced sentence under 18 U.S.C. § 924(e)(1).
6 No. 03-4184

A “violent felony” is a crime that, among other things, is

“punishable by imprisonment for a term exceeding one

year.” 18 U.S.C. § 924(e)(2)(B). Section 921(a)(20) excludes

certain convictions for purposes of § 924(e)(1):

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. § 921(a)(20). The Government has the burden to

establish three prior felonies; upon that showing, the

defendant must prove by a preponderance of the evidence

that a conviction cannot be used under § 924(e)(1). See Hill

v. United States, 118 F. Supp. 2d 910, 914 n.4 (E.D. Wis. 2000).

The first sentence of § 921(a)(20) directs us to look at state

law to determine whether a defendant is deemed convicted.

United States v. Erwin, 902 F.2d 510, 512 (7th Cir. 1990).

We have addressed previously the operation of

§ 921(a)(20)’s notice requirement. In Erwin, we explained:

The second sentence of § 921(a)(20) is an anti-mousetrapping rule. If the state sends the felon a piece of

paper 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 weapons are not kosher. The final sentence of

§ 921(a)(20) cannot logically mean that the state may

dole out an apparently-unconditional restoration of
No. 03-4184 7

rights yet be silent so long as any musty statute withholds the right to carry guns. Then the state would

never have to say a peep about guns; the statute would

self-destruct. It must mean, therefore, that the state

sometimes must tell the felon that under state law he is

not entitled to carry guns . . . . 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.

Id. at 512-13.

In Dahler v. United States, 143 F.3d 1084 (7th Cir. 1998), we

held that a discharge order stating that “[a]ny civil rights

lost as result of conviction herein described, are restored by

virtue of this discharge,” needed to state expressly that the

person may not ship, transport, possess or receive firearms

even after receiving the discharge order. Dahler, 143 F.3d at

1086, 1088. In a later opinion, United States v. Gillaum, 372

F.3d 848 (7th Cir. 2004), we also focused on, among other

things, the notice requirement.

Read as a whole, we believe that these cases are best understood as establishing the principle that a state may not

employ language in discharging a prisoner that will lull the

individual into the misapprehension that civil rights have

been restored to the degree that will permit him to possess

firearms. If a state does use language that creates such a

false sense of security, that conviction may not be used to

justify an enhanced sentence under 18 U.S.C. § 924(e).

In the case before us, as the Government concedes, a discharge certificate stating that “[a]ny civil rights lost as a

result of such judgments of conviction are restored by virtue

of this discharge,” would permit Mr. Vitrano to prevail

because, as we said in Dahler, such language indicates a full

restoration of all civil rights unless accompanied by an
8 No. 03-4184

express prohibition on the use of firearms. See Dahler, 143

F.3d at 1086-88. In contrast, none of the other four types of

certificates that Mr. Vitrano might have received purported

to restore civil rights. A person receiving any one of these

discharges would not be misled into believing that the

certificate also gave him a right to carry firearms. We note

specifically that we do not believe that a discharge certificate that states “[defendant] be, and hereby is, discharged

absolutely” can be read reasonably as absolving an individual of a criminal conviction or of the collateral consequences of that conviction.

Because Mr. Vitrano cannot show by a preponderance of

the evidence that he received a discharge certificate whose

language might be read reasonably to restore all of his civil

rights, such that he would be misled if not informed that

firearms were prohibited, § 921(a)(20) is not implicated.

Conclusion

Accordingly, for the foregoing reasons, we reverse the

judgment of the district court and remand the case for resentencing in accordance with this opinion.

REVERSED and REMANDED
No. 03-4184 9

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-19-05