Shane Buchmeier v. USA, 06-2958.

The opinion of the court was delivered by: Easterbrook, Chief Judge.

Shane Buchmeier was sentenced as an armed career criminal following four firearms convictions: two for possessing firearms despite a prior felony conviction, 18 U.S.C. §922(g)(1), and two for receiving stolen firearms, §922(j). His sentence of 188 months’ imprisonment is within the 480-month maximum for these crimes.  But the armed career criminal enhancement set a floor of 180 months, §924(e), and without it Buchmeier might have received a sentence in the Guideline range of 121 to 151 months that would have applied, but for the enhancement.

We affirmed Buchmeier’s conviction and sentence on direct appeal. 255 F.3d 415 (7th Cir. 2001)  He then filed a collateral attack under 28 U.S.C. §2255.

The prosecutor defended the §924(e) enhancement on the merits.  Section 924(e) requires a lengthy sentence for anyone who violates §922(g) after three convictions for violent felonies or serious drug crimes. Section 924(e)(2)(B) lists the offenses that count as violent felonies.  Each must be “punishable by imprisonment for a term exceeding one year” and meet other conditions.

One qualifying offense is burglary, and Buchmeier has eight of these on his rap sheet. He now maintains that they do not count because of 18 U.S.C. §921(a)(20).

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.

The hanging paragraph’s first sentence tells us that state law governs “[w]hat constitutes a conviction”.  The first sentence also means that a pardon or automatic expungement under state law is effective for federal purposes.

The hanging paragraph’s second sentence is a proviso to the first. It tells us that, no matter what state law provides, a person who has received a “pardon, expungement, or restoration of civil rights” is not treated as convicted for federal purposes “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

Buchmeier relies on the hanging paragraph’s second sentence. When his state terms expired, and he was released from all supervision, he received from the Illinois Department of Corrections a notice (applicable to all eight burglaries) reading:  We have been advised by the field services office of the Stateville Correctional Center that you have completed the maximum of your sentence as of 02/09/1994. On this date, your obligation to the department ceases.

Buchmeier contends that this notice is a “restoration of civil rights” and that, because it does not provide that he “may not ship, transport, possess, or receive firearms”, none of the eight burglary convictions meets the definition of a “crime punishable by imprisonment for a term exceeding one year”. With these eight convictions erased, Buchmeier no longer has three convictions for violent felonies and cannot properly be sentenced under §924(e) as an armed career criminal.

Section 921(a)(20) does not say which civil rights, if restored, cause a state conviction not to count. We concluded in United States v. Williams, 128 F.3d 1128, 1134 (7th Cir. 1997), that three civil rights matter: the rights to vote, to hold office, and to serve on juries. If these are restored, then a conviction does not carry federal fire-arms disabilities or support a §924(e) enhancement “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

The document that Buchmeier received mentions only two of the three civil rights; it is silent about jury service. As this civil right has not been restored (at least, Buchmeier was not told about its restoration), the district court held that the eight burglary convictions still count for federal purposes. In reaching this conclusion, it relied entirely on United States v. Gillaum, 372 F.3d 848, 859–61 (7th Cir. 2004), which holds that, when a pardon, expungement, or other restoration of rights omits one of the “big three” civil rights, there is no need for a firearms reservation.

Logan v. United States, 128 S.Ct. 475 (2007), holds that, if a person never loses any of the “big three” civil rights, then they cannot be “restored” for the purpose of the hanging paragraph’s second sentence. To restore means to give back. Thus a person who never lost civil rights cannot insist that he be treated the same as a person who lost them, had them restored, and did not receive an “express” warning that the right to possess firearms had not been restored.

But Buchmeier did lose civil rights; they could be, and were, “restored” to him; and the document announcing this restoration could have contained (but lacked) a warning that he must not possess firearms. Illinois law forbids felons to possess firearms, unless the Director of the State Police grants a dispensation. 720 ILCS 5/24-1.1(a). Buchmeier’s convictions have not been set aside, so this rule applies, though it was not mentioned in the notice telling Buchmeier that his civil rights had been restored.

Questioning by the panel at oral argument implied to counsel that neither Logan nor Gillaum supports Buchmeier’s §924(e) enhancement. And because, under this circuit’s decisions, the “express” notice must be in the document informing the convict of the pardon, expungement, or restoration of civil rights, rather than in the state’s statutes at large, the enhancement appeared to be infirm. See, e.g., United States v. Erwin, 902 F.2d 510 (7th Cir. 1990); United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994); Dahler v. United States, 143 F.3d 1084, 1086–87 (7th Cir. 1998); United States v. Vitrano, 405 F.3d 506, 509–10 (7th Cir. 2005).

Four other circuits agree with Erwin, though a further four disagree and hold that an “express” firearms restriction anywhere in the state’s statutes suffices for the hanging paragraph’s second sentence. Compare United States v. Chenowith, 459 F.3d 635 (5th Cir. 2006); United States v. Gallaher, 275 F.3d 784 (9th Cir. 2001); United States v. Fowler, 198 F.3d 808 (11th Cir. 1999); and United States v. Bost, 87 F.3d 1333 (D.C. Cir. 1996) (all following Erwin), with United States v. McLean, 904 F.2d 216 (4th Cir. 1990); United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990); United States v. Collins, 321 F.3d 691 (8th Cir. 2003); and United States v. Burns, 934 F.2d 1157 (10th Cir. 1991). See also Logan, 128 S.Ct. at 482–83 n.4 (noting the conflict’s existence).

Overruling would not be consistent with a proper regard for the stability of our decisions. Erwin was issued 19 years ago and, though its discussion of §921(a)(20) can be characterized as dictum, its approach became a holding at the first opportunity (Glaser) and has been followed ever since. Precedents are not sacrosanct; we have overruled many. But when the issue is closely bal anced (the 5 to 4 division among the circuits reveals at least that much), there is less reason to think that a shift will undo rather than create an error. What is more, no circuit can resolve the question with finality. Only Congress or the Supreme Court can accomplish that.

Erwin and its successors treat the second sentence of the hanging paragraph as an anti-mousetrapping provision. On this view the hanging paragraph’s first sentence refers to state law for the basic definition of a “conviction,” while the second sentence is a federal proviso: Even if a state deems a person “convicted” for purposes of its domestic law, if it sends a document that seems to restore all civil rights the conviction does not count for federal purposes unless the document warns the person about a lingering firearms disability. That is not the only possible reading.

Illinois sent Buchmeier a poorly written document. It neglected to inform him that, though the expiration of his sentence restored his rights to vote and hold “constitutional” offices such as Governor, other rights, including entitlement to possess firearms, were not restored.

If someone asks Buchmeier “have you been convicted of a felony?” he must answer “yes”; restoration of civil rights differs from expungement as a matter of Illinois law. But because the state sent Buchmeier a document stating that his principal civil rights have been restored, while neglecting to mention the continuing firearms disability, the final sentence of §921(a)(20) means that his burglary convictions do not count for federal purposes. He is entitled to be resentenced.

VACATED AND REMANDED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

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