*

This decision was originally issued as an “unpublished decision” filed on December 6, 2012.

The court has now designated the opinion as one recommended for full-text publication.

**The Honorable Amul R. Thapar, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0022p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RANDY SANFORD,

Defendant-Appellant.

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No. 11-1847

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 2:10-cr-36-1—R. Allan Edgar, District Judge.

Argued: October 4, 2012

Decided and Filed: December 6, 2012*

Before: COLE and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.**

_________________

COUNSEL

ARGUED: Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Mark A. Totten, UNITED

STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF:

Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Maarten Vermaat, UNITED STATES

ATTORNEY’S OFFICE, Marquette, Michigan, for Appellee.

_________________

OPINION

_________________

COLE, Circuit Judge. Defendant-Appellant Randy Sanford appeals the denial

of his motion to dismiss his indictment. For the following reasons, we AFFIRM.

1
No. 11-1847 United States v. Sanford Page 2

I.

On June 9, 2010, Michigan police discovered that Randy Sanford possessed

multiple firearms. This discovery, along with Sanford’s two prior domestic assault

convictions in Michigan, led a grand jury to indict Sanford for violating 18 U.S.C.

§ 922(g)(9), which makes it unlawful for a person who has been convicted of a

misdemeanor crime of domestic violence to possess any firearm.

Sanford moved to dismiss the indictment under 18 U.S.C. § 921(a)(33)(B)(ii),

which says:

A person shall not be considered to have been convicted of [a

misdemeanor crime of domestic violence] for purposes of this chapter if

the conviction . . . is an offense for which the person . . . 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.

Sanford argued that his prior convictions should not count as predicate offenses because

his civil rights had been restored upon his release from incarceration. The district court

denied Sanford’s motion because it reasoned that his convictions restricted his ability

to transport a firearm. 

Sanford pleaded guilty but reserved the right to appeal the judgment “on the basis

that his prior conviction for a misdemeanor crime of domestic violence does not meet

the definition set forth in [18 U.S.C. § 921(a)(33)].” The district court sentenced

Sanford to one month’s imprisonment, two years of supervised release, and a $1000 fine.

Sanford thereafter filed this appeal.

II.

When reviewing a motion to dismiss an indictment, we review the district court’s

legal conclusions de novo. Our standard of review for factual findings in such cases is

“somewhat unclear,” United States v. Grenier, 513 F.3d 632, 635-36 (6th Cir. 2008)
No. 11-1847 United States v. Sanford Page 3

(collecting cases), but that does not matter here since Sanford does not challenge any of

the district court’s factual findings.

The parties do not dispute that Sanford’s domestic assault convictions under

Mich. Comp. Laws § 750.81(2) qualify as crimes of “domestic violence” as required by

18 U.S.C. § 922(g)(9) (emphasis added). In United States v. Castleman, 695 F.3d 582

(6th Cir. 2012), this Court held that to categorically meet the definition of “misdemeanor

crime of domestic violence” in § 921(a)(33)(A), a state crime must require “violent force

. . . [force] capable of causing physical pain or injury to another person.” Id. at 586-87

(quoting Johnson v. United States, 130 S. Ct. 1265, 1271 (2010)) (emphasis in original).

We do not need to decide whether Castleman would apply in this case because Sanford

waived his opportunity to argue that his prior convictions were insufficiently violent to

qualify as misdemeanor crimes of domestic violence for purposes of § 922(g)(9). We

do not always enforce waivers in cases where “intervening case authority might change

the result,” Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 516 (6th Cir.

2006) (citation omitted), but we find it equitable to enforce the waiver here because the

argument in question had already been raised in several circuits with some success.

Sanford had adequate notice that the argument existed and was viable. See United States

v. White, 606 F.3d 144 (4th Cir. 2010) (holding that Virginia domestic assault and

battery statute did not qualify); United States v. Hays, 526 F.3d 674 (10th Cir. 2008)

(holding that battery under Wyoming law did not necessarily qualify as a misdemeanor

crime of domestic violence); United States v. Nason, 269 F.3d 10 (1st Cir. 2001)

(holding that all Maine assault convictions against a domestic partner qualified).

Sanford’s argument in this appeal instead focuses on the “rights restoration”

exception, whereby a person is not considered to have been convicted of a misdemeanor

crime of domestic violence for purposes of § 922(g)(9) “if the conviction . . . is an

offense for which the person . . . has had civil rights restored . . . .” § 921(a)(33)(B)(ii).

When Sanford was released, he recovered certain civil rights, such as his right to vote

under Mich. Comp. Laws § 168.758b. Sanford therefore contends that his civil rights
No. 11-1847 United States v. Sanford Page 4

were fully restored upon release from incarceration and his domestic assault convictions

cannot serve as predicate offenses for the purposes of § 922(g)(9).

However, the “rights restoration” exception has an “unless clause”: the exception

applies “unless the . . . restoration of civil rights expressly provides that the person may

not ship, transport, possess, or receive firearms.” § 921(a)(33)(B)(ii). Under Michigan

law, Sanford’s domestic assault convictions made him ineligible for a concealed

weapons permit for eight years after each conviction. Mich. Comp. Laws

§ 28.425b(7)(h)(xv). The government contends that Sanford’s ineligibility for a

concealed weapons permit restricts his ability to “transport” a firearm sufficiently to

trigger the “unless clause.”

Sanford’s ineligibility for a concealed weapons permit severely hindered, but did

not completely eliminate, his ability to transport a handgun. Under Michigan law, a

person without a concealed weapons permit may “not carry a pistol concealed on or

about his or her person, or, whether concealed or otherwise, in a vehicle operated or

occupied by the person, except in his or her dwelling house, place of business, or on

other land possessed by the person, without a license to carry the pistol as provided by

law . . . .” Id. § 750.227(2). Mich. Comp. Laws § 750.231a(1)(d) provides an exception

to that rule, allowing a person to transport “a pistol for a lawful purpose” if the pistol “is

licensed by the owner or occupant of the motor vehicle,” unloaded, and in a closed case

in the trunk. The statute, as effective at that time, specified seven lawful purposes, such

as transportation to a target shooting area or a place of sale. See id. § 750.231a(2)(b)

(2009) (specifying additional purposes). On the other hand, with a concealed weapons

permit, Sanford could “[c]arry a pistol in a vehicle, whether concealed or not concealed,

anywhere in [Michigan, except as otherwise provided by law].” Id. § 28.425c(2).

In isolation, the text of § 921(a)(33)(B)(ii) is ambiguous as to whether Sanford’s

remaining restriction triggers the “unless clause,” but Supreme Court precedent resolves

the ambiguity, compelling us to hold that Sanford’s ineligibility for a concealed weapons

permit restricts his ability to transport firearms sufficiently to trigger the “unless clause.”
No. 11-1847 United States v. Sanford Page 5

In Caron v. United States, 524 U.S. 308 (1998), Gerald Caron was convicted of

violating 18 U.S.C. § 922(g)(1), which makes it unlawful for a person convicted of a

crime punishable by more than one year of imprisonment to possess any firearm. Id. at

309. His sentence was enhanced under 18 U.S.C. § 924(e), which mandates that a

defendant with three violent felony convictions receive an enhanced sentence. Caron

objected to the enhancement, arguing that a prior Massachusetts conviction should not

have counted as a predicate offense because of a similar “rights restoration” exception.

See Caron, 524 U.S. at 311. As in the present case, an “unless clause” modified the

exception: the “rights restoration” exception applied “unless such . . . restoration of civil

rights expressly provides that the person may not . . . possess . . . firearms.” 18 U.S.C.

§ 921(a)(20). Massachusetts law permitted Caron to possess rifles and shotguns, but,

because of his past conviction, banned him from possessing handguns anywhere outside

of his home or business. The Supreme Court held that the restriction on Caron’s

handgun possession rights was an express restriction on his ability to possess firearms

that triggered the “unless clause.”

The Supreme Court adopted the government’s “all-or-nothing” position, under

which:

[A] state weapons limitation on an offender activates the uniform federal

ban on possessing any firearms at all. This is so even if the guns the

offender possessed were ones the State permitted him to have. The state

has singled out the offender as more dangerous than law-abiding citizens,

and federal law uses this determination to impose its own broader

stricture.

Caron, 524 U.S. at 315. The Court rejected the dissent’s position that the “plain

meaning” of the statute triggers the “unless clause” only “when the State additionally

prohibits those ex-felons from possessing firearms altogether.” Id. at 318 (Thomas, J.,

dissenting). A civil rights restoration that severely limits (but does not ban) the

possession of even one type of firearm is, under Caron, one that “expressly provides that

the person may not . . . possess . . . firearms.” 18 U.S.C. § 921(a)(20).
No. 11-1847 United States v. Sanford Page 6

To distinguish his case from Caron, Sanford argues on appeal that the “unless

clause” “speaks only to civil rights,” such as handgun possession, and cannot be

triggered by denial of “privilege[s]” such as concealed weapons permits. The Supreme

Court’s post-Caron decision in District of Columbia v. Heller, 554 U.S. 570 (2008),

suggests that a handgun possession ban, such as the one in Caron, might infringe a civil

right, whereas denial of a concealed weapons permit, as in the present case, does not.

See id. at 626. However, the restriction in Caron did not impinge on the constitutional

right announced in Heller, which was merely to possess a handgun in one’s home.

Caron was only restricted outside of his home or business. Therefore, Sanford’s attempt

to distinguish Caron as a matter of civil rights restriction, as opposed to a denial of

privilege, fails.

There are only two relevant distinctions between the Michigan and

Massachusetts laws, and neither is material: first, the latter denies a license to carry,

whereas the former denies a permit to carry a concealed weapon; and second, in

Michigan, Sanford is still able, for some limited purposes, to transport a pistol in his

vehicle without the permit. Logistically, Sanford’s restrictions are similar to Caron’s:

Sanford is allowed to carry his firearm “in [his] dwelling house, place of business, or on

other land possessed by [him],” but his inability to obtain a concealed weapons permit

denies him the freedom to “[c]arry a pistol concealed on or about [his] person anywhere

in [the] state.” Mich. Comp. Laws § 750.227(2); Mich. Comp. Laws § 28.425c(2)(a).

Just as the restriction in Caron was not a blanket ban on all handgun possession, the

restriction here is not a blanket ban on all pistol transportation.

Ultimately, Sanford does not have the same freedom to transport his firearm as

a Michigan citizen without a domestic assault record. Under Caron, this is sufficient to

trigger the “unless clause,” which requires us to affirm the district court’s judgment.

We overrule United States v. Flores, 118 F. App’x 49 (6th Cir. 2004) (per

curiam), because it fails to consider the impact of the Michigan restriction on the ability

to transport. In Flores, this Court held that ineligibility for a concealed weapons permit

did not trigger the “unless clause” because it would be improper to “extend the ‘unless’
No. 11-1847 United States v. Sanford Page 7

clause . . . to the additional act of concealment of a firearm.” Id. at 53. The majority

appeared to assume that Michigan’s concealed weapons permit statute governs only

concealment of a firearm and nothing more. The dissent raises the matter of transport

briefly, but only in the context of transporting concealed weapons. Id. at 54 (Daughtrey,

J., dissenting) (“[A] prohibition against transporting or possessing concealed weapons

is the sort of limitation that Congress must have intended in adding the ‘unless clause’

to § 921(a)(20).”) (first emphasis added). Our holding does not add “concealment” as

a fifth element of the “unless clause” because Sanford’s inability to obtain the concealed

weapons permit burdens his ability to transport firearms, even when unconcealed in a

vehicle. Applying the Caron analysis to the “transport” prong of § 921(a)(33), we hold

that Sanford’s ineligibility for a concealed weapons permit triggers the “unless clause”

and permits his indictment for firearm possession in violation of § 922(g)(9).

III.

For the reasons stated above, we AFFIRM the district court’s denial of Sanford’s

motion to dismiss his indictment.