United States of America v.  Raymond Jennings

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4927 
RAYMOND JENNINGS,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Senior District Judge.
(CR-00-587)
Argued: September 26, 2002
Decided: March 19, 2003
Before WILKINSON and WIDENER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
majority opinion, in which Judge Wilkinson joined. Judge Widener
wrote a dissenting opinion.
COUNSEL
ARGUED: John Herman Hare, Assistant Federal Public Defender,
Columbia, South Carolina, for Appellant. Stacey Denise Haynes,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attor-
ney, Columbia, South Carolina, for Appellee.

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OPINION
HAMILTON, Senior Circuit Judge:
Raymond Henry Jennings (Jennings) appeals from a judgment
entered by the district court following his conditional guilty plea and
sentencing for violating 18 U.S.C. § 922(g)(9). On appeal, Jennings
makes several arguments, all of which attack the district court’s
refusal to dismiss the indictment returned by the grand jury. For the
reasons set forth below, we affirm.
I
A
In 1996, Congress amended the Gun Control Act of 1968, id.
§ 922, by providing that a person convicted of a misdemeanor crime
of domestic violence (MCDV) is prohibited from, inter alia, possess-
ing a firearm or ammunition. Id. § 922(g)(9). A MCDV is defined as
an offense that is a "misdemeanor under Federal or State law," id.
§ 921(a)(33)(A)(i), and
has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed
by a current or former spouse, parent, or guardian of the vic-
tim, by a person with whom the victim shares a child in
common, by a person who is cohabitating or has cohabitated
with the victim as a spouse, parent, or guardian, or by a per-
son similarly situated to a spouse, parent, or guardian of the
victim.
Id. § 921(a)(33)(A)(ii). Under the statutory scheme, however, a per-
son shall not be considered to have been convicted of a MCDV
offense unless, among other things: (1) the person "knowingly and
intelligently waived the right to counsel" in the MCDV case, id.
§ 921(a)(33)(B)(i)(I); (2) the person, if he was entitled to a jury trial
in the MCDV case under the laws of the jurisdiction in which the
MCDV case was "tried," id. § 921(a)(33)(B)(i)(II), "knowingly and
intelligently waived the right to have the [MCDV] case tried by a
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jury, by guilty plea or otherwise," id. § 921(a)(33)(B)(i)(II)(bb); and
(3) the person, with regard to the MCDV offense, did not have his
civil rights "restored," id. § 921(a)(33)(B)(ii).
B
In March 1997, following a bench trial, Jennings was convicted of
criminal domestic violence (CDV) in Sumter, South Carolina Munici-
pal Court. For this misdemeanor offense, he received a suspended
sentence of thirty days. Jennings does not dispute that his March 1997
CDV offense meets the definition of a MCDV set forth in 18 U.S.C.
§§ 921(a)(33)(A)(i) and (ii). However, because Jennings was not
incarcerated for his March 1997 CDV conviction, the parties agree
that Jennings lost none of his civil rights under South Carolina law.
Cf. S.C. Ann. Code § 7-5-120(B)(2) (noting that a person is disquali-
fied from being registered to vote or voting if he "is serving a term
of imprisonment resulting from a conviction of a crime"). The parties
also agree that, had Jennings been incarcerated for the March 1997
CDV conviction, his civil right to vote would have been completely
restored upon his release from incarceration.
On December 2, 1999, Jennings possessed a firearm, namely, "a
Dreyse, 7.65 mm pistol," and ammunition, in the form of "12 gauge
shotgun shells and .410 shotgun shells." (J.A. 11). In June 2000, a
federal grand jury sitting in the District of South Carolina returned a
one-count indictment charging Jennings with a violation of 18 U.S.C.
§ 922(g)(9).
Following the grand jury’s indictment, Jennings moved to dismiss
the indictment on August 22, 2000 on the ground that, with regard to
his March 1997 conviction for CDV, his civil rights, even though they
had never been taken away, had been "restored" within the meaning
of 18 U.S.C. § 921(a)(33)(B)(ii), and, therefore, he could not be sub-
ject to prosecution for an 18 U.S.C. § 922(g)(9) violation. On October
11, 2000, the district court held a hearing on the motion, at which Jen-
nings’ motion to dismiss the indictment was denied.
Near the conclusion of the October 11, 2000 hearing before the dis-
trict court and following the district court’s denial of his motion to
dismiss the indictment, Jennings suggested to the district court that he
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could not be prosecuted under 18 U.S.C. § 922(g)(9) because, with
regard to his March 1997 CDV conviction, he did not knowingly and
intelligently waive his right to counsel as required by 18 U.S.C.
§ 921(a)(33)(B)(i)(I). The district court allowed Jennings to make an
oral motion along this line and Jennings filed a written motion to dis-
miss the indictment on October 13, 2000.
On this second motion to dismiss, the district court held a hearing
on November 29, 2000. At the hearing, Sumter Municipal Court
Judge Mary Herbert (Judge Herbert) testified that she had no specific
recollection of Jennings’ case and, thus, could not recall the circum-
stances surrounding Jennings’ waiver of his right to counsel and
waiver of his right to a jury trial in the March 1997 CDV case. How-
ever, Judge Herbert described the procedure that she routinely
employed, in her twenty-one years as a municipal court judge, to
secure a defendant’s waiver of his right to counsel and his right to a
jury trial. Jennings also testified at the November 29, 2000 hearing.
Although he did not remember much of what happened before Judge
Herbert, Jennings acknowledged that Judge Herbert advised him of
his right to a jury trial and that, if he opted for a jury trial, he would
have the opportunity to pick a jury and have a jury trial. According
to Jennings, he decided to forego a jury trial and opt for a bench trial
because he "just wanted to get out [of the courtroom] and get back
to work." (J.A. 119).1
On December 1, 2000, Jennings filed a memorandum in which he
raised another ground to dismiss the indictment. In the memorandum,
Jennings argued that he could not be prosecuted under 18 U.S.C.
§ 922(g)(9) because, with regard to his March 1997 CDV conviction,
he did not knowingly and intelligently waive his right to a jury trial
as required by 18 U.S.C. § 921(a)(33)(B)(i)(I)(bb).
On December 15, 2000, the district court rejected Jennings’
remaining attacks to the validity of the indictment. Following the dis-
trict court’s ruling, Jennings entered a conditional guilty plea to the
1The record reflects that Jennings had, as of March 1997, an extensive
criminal record, which included, among other convictions, two convic-
tions for CDV in Sumter Municipal Court and one conviction for CDV
in Sumter County, South Carolina Magistrate’s Court.
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18 U.S.C. § 922(g)(9) violation, reserving his right to appeal the dis-
trict court’s rejection of his attacks on the indictment.
On April 24, 2001, Jennings filed a motion for reconsideration,
which was denied by the district court. On November 14, 2001, Jen-
nings was sentenced to fifteen months’ imprisonment, but he remains
free on bond pending this timely appeal.
II
The first and principal issue raised in this appeal is whether a per-
son convicted of a MCDV but never stripped of his civil rights under
state law is thereafter subject to prosecution under 18 U.S.C.
§ 922(g)(9). According to Jennings, he could not be convicted of vio-
lating 18 U.S.C. § 922(g)(9) because, with regard to his March 1997
conviction for CDV, his civil rights, even though they had never been
taken away, were nevertheless "restored" under 18 U.S.C.
§ 921(a)(33)(B)(ii).
Our examination of issues involving statutory interpretation begins
with an analysis of the language of the statute. Holland v. Big River
Minerals Corp., 181 F.3d 597, 603 (4th Cir. 1999), cert. denied, 528
U.S. 1117 (2000). In analyzing the meaning of a statute, we must first
"determine whether the language at issue has a plain and unambigu-
ous meaning." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
Our determination of ambiguity is guided "by reference to the lan-
guage itself, the specific context in which that language is used, and
the broader context of the statute as a whole." Id. at 341. "[T]he sole
function of the courts is to enforce [the statute] according to its
terms." Caminetti v. United States, 242 U.S. 470, 485 (1917). Conse-
quently, we cannot go beyond the plain meaning of the statute unless
there is "a clearly expressed legislative intent to the contrary," Rus-
sello v. United States, 464 U.S. 16, 20 (1983) (internal quotation
marks omitted), a literal application of the statute would thwart its
obvious purpose, Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
571 (1982), or a literal application of the statute would produce an
absurd result, United States v. American Trucking Ass’ns, 310 U.S.
534, 543 (1940).
Under 18 U.S.C. § 921(a)(33)(B)(ii), a person shall not be consid-
ered to have been convicted of a MCDV
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if the conviction has been expunged or set aside, or is an
offense for which the person has been pardoned or 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, trans-
port, possess or receive firearms.
Id. § 921(a)(33)(B)(ii).2
Jennings conceded at oral argument that his plain language argu-
ment is weak. This concession was wise, as it is obvious that Jen-
nings’ civil rights were never taken away and, thus, were never
"restored." As the court noted in McGrath v. United States, 60 F.3d
1005 (2d Cir. 1995), the "word ‘restore’ means ‘to give back (as
something lost or taken away).’" Id. at 1007 (quoting Webster’s Third
New International Dictionary 1936 (1976)). And, the "‘restoration’ of
a thing never lost or diminished is a definitional impossibility."
McGrath, 60 F.3d at 1007. Because Jennings’ civil rights were never
taken away, it is impossible for those civil rights to have been "re-
stored."
Jennings’ argument boils down to the assertion that the literal
application of the word "restored" produces an absurd result. Accord-
ing to Jennings, it is absurd to treat those misdemeanants who never
lost their civil rights more harshly than those misdemeanants who
temporarily lost their civil rights while incarcerated and had them
restored upon release from incarceration. Jennings’ position is not
without support.
In United States v. Indelicato, 97 F.3d 627 (1st Cir. 1996), the
defendant pleaded guilty in Massachusetts state court to assault and
battery with a knife and carrying a dangerous weapon (the knife). Id.
at 628. The state court ultimately sentenced the defendant to a one-
2This section is analogous to the felon-in-possession restoration of
civil rights statute, 18 U.S.C. § 921(a)(20). Of note, 18 U.S.C.
§ 921(a)(20) does not contain the parenthetical phrase "(if the law of the
applicable jurisdiction provides for the loss of civil rights under such an
offense)," which is contained in 18 U.S.C. § 921(a)(33)(B)(ii).
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year suspended sentence and $7,500 in restitution, which the defen-
dant paid. Id. Both offenses were misdemeanors under Massachusetts
state law but punishable by a maximum sentence of two and one-half
years’ imprisonment. Id.
Thereafter, the defendant possessed firearms and ammunition and
was indicted for violating 18 U.S.C. § 922(g)(1), the felon-in posses-
sion statute. Because his state crimes carried a maximum sentence of
more than two years, the defendant did not fall within the exception
of 18 U.S.C. § 921(a)(20)(B), which excludes from 18 U.S.C.
§ 922(g)(1)’s purview persons convicted of state misdemeanors pun-
ishable by a term of imprisonment of two years or less. In the district
court, the defendant argued that 18 U.S.C. § 921(a)(20) applied to
him because Massachusetts never took away his civil rights and
because he suffered no restrictions on his state firearms privileges.
The district court rejected this argument, and, following his convic-
tion in a bench trial, the defendant appealed. Indelicato, 97 F.3d at
627-28.
The issue, as framed by the Indelicato court, was whether the resto-
ration exception of 18 U.S.C. § 921(a)(20) "protects one who, like
Indelicato, never had his civil rights taken away at all." Indelicato, 97
F.3d at 629. The court acknowledged that "the ordinary reading of the
word ‘restored’ supports the government," id., but noted that there
were two different reasons why the literal language of 18 U.S.C.
§ 921(a)(20) did not preclude further inquiry. Indelicato, 97 F.3d at
629. First, the court observed that "a ready explanation exists why
Congress might have used the term ‘restored’ without intending to
exclude persons like" the defendant. Id. According to the court, "there
is no indication in the legislative history that Congress gave any atten-
tion to the rare case in which someone convicted of a serious crime
would not lose one or more of the three civil rights that have been
used by most courts as touchstones under this section." Id. Second,
the court observed that "it is hard to find any reason why Congress
would have wished to adopt the distinction now urged by the govern-
ment." Id. Because, in the court’s view, the language of 18 U.S.C.
§ 921(a)(20) was not conclusive, the court turned to the statute’s leg-
islative history and purpose. Indelicato, 97 F.3d at 629.
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After conducting this inquiry, the court concluded that the purpose
of the statutory scheme was to accommodate "‘a state’s judgment that
a particular person or class of persons is, despite a prior conviction,
sufficiently trustworthy to possess firearms.’" Id. at 630 (quoting
McGrath, 60 F.3d at 1009). Noting that the trustworthiness rationale
did not require an individualized decision under its circuit precedent,
the court concluded that, "it is hard to see why Congress would wish
to distinguish between one whose civil rights were never taken away
(Indelicato) and one whose civil rights were mechanically taken away
and mechanically restored." Indelicato, 97 F.3d at 630. According to
the court, drawing a distinction would "certainly create an anomalous
result in various situations, such as a jurisdiction that did not deprive
a misdemeanant of civil rights but took away the rights of a felon and
then restored them by statute on the felon’s completion of his prison
term and period of supervision." Id. Consequently, the court con-
cluded that the defendant’s "civil rights, to the extent that they were
never taken away, should be treated as ‘restored’" for purposes of 18
U.S.C. § 921(a)(20).3 Indelicato, 97 F.3d at 631.
Recently, the Sixth Circuit reached a decision consistent with the
First Circuit’s decision in Indelicato. In United States v. Wegrzyn, No.
00-1712, 2002 WL 31190150 (6th Cir. October 3, 2002), the defen-
dant was charged with a violation of 18 U.S.C. § 922(g)(9). Wegrzyn,
2002 WL 31190150 at * ___. The predicate MCDV was a Michigan
charge of domestic violence, for which the defendant received a sen-
tence of six to twelve months’ probation. Because the defendant was
not incarcerated, he lost none of his civil rights under Michigan law.
Id. at * ___. This district court held that the defendant could not be
prosecuted under 18 U.S.C. § 922(g)(9) because
3Several other decisions have criticized in dicta the result that persons
convicted of serious crimes who temporarily lost their civil rights are
immune from prosecution for firearm possession, while those convicted
of lesser offenses—offenses that did not justify stripping them of their
civil rights—remain subject to an 18 U.S.C. § 922(g)(1) prosecution.
See, e.g., United States v. Hall, 20 F.3d 1066, 1069 (10th Cir. 1994) (not-
ing that, if Congress had intended this result, it "would (and easily could)
have been more explicit"); United States v. Thomas, 991 F.2d 206, 212
(5th Cir. 1993) (characterizing this result as "Wonderland").
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misdemeanants convicted of domestic violence in Michigan
who were not sentenced to periods of incarceration should
also be able to possess firearms upon completion of their
sentences of probation or other punishments. Otherwise, . . .
the untenable situation would occur in which an individual
who presumably committed a more egregious offense justi-
fying incarceration would nevertheless be allowed—upon
completion of the jail sentence—to possess a firearm, while
another misdemeanant whose transgression did not merit
such severe punishment would be treated more harshly at
the conclusion of a more lenient punishment.
Wegrzyn, 2002 WL 31190150 at * ___.
On appeal, the government contended that the district court’s deci-
sion ignored the plain language of the controlling statutes and com-
pelled an "absurd result." Id. at * ___. The Wegrzyn court rejected
these arguments, concluding that the district court’s decision gave
"effect to the exception crafted by Congress and to the peculiarities
of Michigan criminal law." Id. at * ___. According to the Wegrzyn
court,
[i]n enacting 18 U.S.C. § 921(a)(33)(B)(ii), Congress chose
to allow the states themselves to dictate the parameters of
the statutory exception by recognizing the differences
among state laws concerned with loss of civil rights upon
conviction for certain offenses. Consequently, the Michigan
legislature itself, by choosing to strip even misdemeanants
of a core civil right, created the problem now facing the
frustrated federal prosecutors. Indeed, had Michigan law-
makers, like almost all other state legislatures throughout
the country, chosen to treat individuals guilty of lesser
crimes (misdemeanors) less severely than felons and not
stripped those individuals of their right to vote, the problem
presented in this case by the later restoration of that right
would never have arisen.
In short, it is the peculiar interplay between the relevant fed-
eral statutes, Michigan state legislation, and Sixth Circuit
precedent that has resulted in a legal conclusion that here
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permits a statutory exception to swallow the intended rule.
Although such a result may not be palatable to many, it is
far from "absurd" because, besides being mandated by appli-
cable law, it also gives effect to the Congressional intent to
allow states to have input in the definition of the parameters
of the crime, and gives effect to the expressed intent of the
Michigan legislature. Ironically, the Michigan populace is
now forced to sacrifice some of its collective security only
because of the state legislature’s decision to impose—in one
aspect, at least—the same penalty to all persons convicted
of offenses against the state, regardless of the seriousness of
the charge.
Wegrzyn, 2002 WL 31190150 at * ___ (footnote omitted).
Notwithstanding the decisions reached by the courts in Indelicato
and Wegrzyn, we find four other circuit court decisions, McGrath,
United States v. Smith, 171 F.3d 617 (8th Cir. 1999), United States
v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 532 U.S. 989
(2001), and United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002),
more persuasive on the question of whether a literal application of the
word "restored" to Jennings produces an absurd result.
In McGrath, the petitioner was convicted in 1961 in Vermont state
court of larceny, a crime classified as a felony in that state. 60 F.3d
at 1005. He was not sentenced to jail time, but was given a suspended
sentence of three to five years’ imprisonment and placed on proba-
tion. Id. Under Vermont law, the petitioner did not lose any of his
civil rights because he was not incarcerated, id., and Vermont law
provided no mechanism for felons who lost their civil rights to have
them restored. Id. at 1008. Over thirty years later, in 1992, the peti-
tioner was charged with, and pleaded guilty to, a violation of 18
U.S.C. § 922(g)(1). McGrath, 60 F.3d at 1005-06. The petitioner did
not appeal, but later filed a 28 U.S.C. § 2555 motion, asserting that,
because Vermont law had not stripped him of any civil rights as a
result of his 1961 larceny conviction, he was not a person prohibited
from carrying a firearm under 18 U.S.C. § 922(g)(1). McGrath, 60
F.3d at 1006. In an amended 28 U.S.C. § 2555 motion, the petitioner
claimed that his counsel’s failure to raise this claim at his plea, sen-
tencing, or on direct appeal should be excused because he received
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ineffective assistance of counsel. McGrath, 60 F.3d at 1006. The dis-
trict court dismissed the petitioner’s petition, and the petitioner
appealed. Id.
On appeal, the petitioner argued that the exemption for felons who
have "‘had civil rights restored’ should extend to felons whose civil
rights were never taken away." Id. at 1007. The McGrath court
rejected this argument. First, the court noted that the petitioner’s argu-
ment was incompatible with the meaning of the word "restore." Id.
(The "‘restoration’ of a thing never lost or diminished is a definitional
impossibility."). Second, the court observed that the petitioner’s argu-
ments to avoid the plain meaning of "restore" were unavailing. The
court rejected the petitioner’s argument that it was anomalous for the
government to treat those persons who never lost their civil rights
more harshly than those persons who temporarily did so because it
ignored the apparent intention of the 1986 amendment (Firearms
Owners’ Protection Act (FOPA)) to the Gun Control Act of 1968,
which added the restoration exception of 18 U.S.C. § 921(a)(20):
Prior to its passage, the felon-in-possession statute applied
to all convicted felons, regardless whether the predicate con-
viction entailed deprivation of civil rights. Thus, from the
first, the Gun Control Act failed to distinguish between
those whose felony convictions resulted in loss of civil
rights, and those who retained those rights notwithstanding
the conviction. The FOPA amendment then exempted felons
to whom the convicting jurisdiction extended a subsequent
gesture of forgiveness, or partial forgiveness, by means of
pardon, expungement, or restoration of civil rights. The the-
ory was no doubt that such a subsequent forgiveness should
be credited as an acknowledegment of rehabilitation or an
affirmative gesture of goodwill that merited exemption from
the firearms bar.
McGrath, 60 F.3d at 1007.
Next, the McGrath court rejected the petitioner’s argument that
Congress could not have intended exposure to prosecution to depend
on the caprices of state legislatures. Id. at 1008. After noting that
many states restore civil rights to convicted felons by means of a gen-
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eral law stating that all rights shall be reinstated upon the service of
sentence, that other states authorize prison officials to issue a certifi-
cate of restoration to some or all felons after a certain period follow-
ing the expiration of a prison sentence or parole, that a minority of
states restore rights in piecemeal fashion: one provision in the state
code may disable a felon’s right to vote while incarcerated, while sep-
arate provisions suspend the right to hold office and to serve on a jury
during imprisonment, and that at least twelve states—including
Vermont—appear to have no provisions whatsoever for the restora-
tion of civil rights, the court observed that "this effect—if not the pre-
cise result—was exactly what Congress did intend." Id. at 1008-09.
According to the McGrath court:
The exemption at issue was passed in 1986 in response to
a 1983 Supreme Court decision which held that the defini-
tion of a predicate offense under the Gun Control Act of
1968 was a matter of federal, not state law. Dickerson v.
New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S. Ct.
986, 991-92, 74 L. Ed.2d 845 (1983). Dickerson held that a
state’s expungement of a conviction did not nullify the con-
viction for the purpose of applying the federal firearms stat-
ute. Section 921(a)(20) was expressly crafted to overrule
Dickerson’s federalization of a felon’s status by allowing
state law to define which crimes constitute a predicate
offense under the statute, and thereby to determine which
convicted persons should be subject to or exempt from fed-
eral prosecution for firearms possession. See United States
v. Jones, 993 F.2d 1131, 1135 (4th Cir. 1993), aff’d sub
nom. Beecham v. United States, 511 U.S. 368, ___, 114 S.
Ct. 1669, 1672, 128 L. Ed.2d 383 (1994). Calling its new
legislation the "Firearms Owners’ Protection Act," Congress
sought to accommodate a state’s judgment that a particular
person or class of persons is, despite a prior conviction, suf-
ficiently trustworthy to possess firearms.
The very decision to have restoration triggered by events
governed by state law insured anomalous results. The sev-
eral states have considerably different laws governing par-
don, expungement, and forfeiture and restoration of civil
rights. Furthermore, states have drastically different policies
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as to when and under what circumstances such discretionary
acts of grace should be extended. The anomaly McGrath
complains of is but one of innumerable anomalies that
§ 921(a)(20) will produce. They are the inevitable conse-
quence of making access to the exemption depend on the
differing laws and policies of the several states.
McGrath, 60 F.3d at 1009.
The McGrath court also observed that the petitioner’s position,
while correcting one anomaly, would create another:
Under his proposal, the most dangerous felons in a state that
elected not to forfeit civil rights would be exempted from
the federal prohibition, while those convicted of far less
serious crimes in other states would not be exempted unless
they were lucky enough to receive the benefits of an act of
grace.
Id. Finally, the McGrath court observed that the petitioner’s position
"undercut the basic federal policy of keeping firearms out of the
hands of convicted felons." Id.
In Smith, the defendant pleaded guilty in 1994 to an Iowa state
charge of misdemeanor assault. 171 F.3d at 619. This offense met the
definition of a MCDV under 18 U.S.C. §§ 921(a)(33)(A)(i) and (ii).
Smith, 171 F.3d at 621. None of the defendant’s civil rights were
stripped away because, under Iowa law, a misdemeanant does not lose
his civil rights upon conviction even if he is incarcerated. Id. at 623.
In 1996, the defendant possessed a firearm and was charged with vio-
lating 18 U.S.C. § 922(g)(9). Smith, 171 F.3d at 619. He conditionally
pleaded guilty to the 18 U.S.C. § 922(g)(9) charge, and, on appeal, he
argued that he should fit within the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii) because the end result was the same—he still pos-
sessed his civil rights, regardless of whether he had them restored or
he never lost them in the first place. Smith, 171 F.3d at 619, 623.
In rejecting the defendant’s argument, the court distinguished
Indelicato on the basis that it involved 18 U.S.C. § 921(a)(20) and not
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18 U.S.C. § 921(a)(33)(B)(ii). Smith, 171 F.3d at 623. According to
the court, 18 U.S.C. § 921(a)(33)(B)(ii)’s parenthetical language "(if
the law of the applicable jurisdiction provides for the loss of civil
rights under such an offense)," which is not contained in 18 U.S.C.
§ 921(a)(20), precluded the application of Indelicato. Smith, 171 F.3d
at 623. In other words, because Iowa law did not provide for the loss
of civil rights for a misdemeanant, the defendant could not fall within
the restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii). Smith, 171
F.3d at 623; cf. United States v. Keeney, 241 F.3d 1040, 1043 (8th
Cir.) ("Thus, a defendant must have lost his or her civil rights pursu-
ant to state statute in order to assert that the restoration exception [of
18 U.S.C. § 921(a)(33)(B)(ii)] is applicable."), cert. denied, 122 S. Ct.
205 (2001). Additionally, the court noted that, to read the statute in
the manner stressed by the defendant, "would be to vitiate the statute
because most misdemeanor convictions do not result in the loss of
civil rights"; thus, "almost all misdemeanants would fit within the
exception and the exception would swallow the rule." Smith, 171 F.3d
at 624.
The defendant in Smith also argued that, because he did not liter-
ally fall within the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii), his Fifth Amendment right to equal protection
was violated. Smith, 171 F.3d at 624. The court rejected this argu-
ment, relying on McGrath and the legislative history of 18 U.S.C.
§ 921(a)(33)(B)(ii):
Congress knew that the states had widely divergent laws
regarding pardon, expungement, and restoration of civil
rights. This was true not only when Congress enacted
§ 921(a)(20), but even more so when it enacted § 921(a)(33)
in 1996, ten years after enacting the much criticized restora-
tion exception in § 921(a)(20). See McGrath, 60 F.3d at
1009 (noting various courts that have criticized the disparate
treatment involving the restoration exception of
§ 921(a)(20) based on divergent state laws). Yet, Congress
continued to look to state law to define the restoration
exception, noting that the exception in § 921(a)(33) was
modeled after that contained in § 921(a)(20). See 142 Cong.
Rec. S11872-01, *S11877.
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Congress was cognizant of the disparity it would create. See
id. ("Loss of these [civil] rights generally does not flow
from a misdemeanor conviction, and so this language is
probably irrelevant to most, if not all, of those offenders
covered because of the new ban.") (statement of Sen. Lau-
tenberg). However, Congress was concerned with domestic
abuse offenders who were successful in pleading a felony
charge down to a misdemeanor and thus escaping the effect
of the felon-in-possession statutes. See id. at S11876. An
earlier version of the bill did not cover attempted use of
physical force or threatened use of a weapon. See id. at
S11877. The change reflects Congress’s concern that an
individual in a domestic relationship who would attempt to
use physical force or threaten use of a weapon was as dan-
gerous as one who actually committed an act of physical
force and similarly should not be allowed to possess a fire-
arm. See id. Congress was concerned with the exact situa-
tion faced here: preventing a known (from the fact of the
misdemeanor conviction) domestic abuser from later using
a firearm to inflict the next bout of abuse. See id. at 11876.
Smith, 171 F.3d at 625. The Smith court buttressed its equal protection
holding by noting that the defendant could have sought to expunge his
Iowa state law conviction and could have sought to be pardoned. Id.
at 625.
In Hancock, the defendant was convicted of violating 18 U.S.C.
§ 922(g)(9). Hancock, 231 F.3d at 560. On appeal, he argued, inter
alia, that the district court erred when it denied his motion to dismiss
the indictment on equal protection grounds. Id. at 565. According to
the defendant, the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii) treated misdemeanants more harshly than it
treated some felons because, in Arizona, misdemeanants do not lose
their civil rights, whereas felons do lose their civil rights and may
have those rights "restored." Hancock, 231 F.3d at 566.
The Hancock court rejected the defendant’s argument, relying on
Smith:
In Smith, the Eighth Circuit noted that Congress was aware
of the discrepancies in state procedures for revoking and
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restoring civil rights. The court wrote that disparate treat-
ment of some offenders was the inevitable result of Con-
gress’ decision to "look to state law to define the restoration
exception." Id. at 625. The court further noted that restora-
tion was only one of several procedures—pardon, expunge-
ment, and setting aside of convictions being the others—
through which an offender could regain the right to possess
firearms. See id. The court concluded that (1) it was "en-
tirely rational" for Congress to extend the firearm ban to
domestic-violence misdemeanants; (2) the discrepancy in
treatment of which the defendant complained was the inevi-
table result of Congress’ reference to state law; and (3)
because the statute contained other means for misdemean-
ants to regain the right to possess firearms, it did not violate
equal protection. See id. at 626.
The Eighth Circuit’s opinion in Smith is persuasive. For the
reasons that the Smith court gave, we reject Defendant’s
equal protection argument. Defendant had, and has, several
adequate legal mechanisms at his disposal for regaining his
right to possess firearms: pardon, expungement, and setting
aside of convictions. "Restoration of civil rights" is not one
of those mechanisms, as it might be for some felons. But
that minor distinction between felons and misdemeanants is
not sufficient to constitute a violation of equal protection.
Even if it were sufficient, the distinction is at least mini-
mally rational. Congress reasonably could conclude that fel-
ons who had been through a state’s restoration process and
had regained their civil rights (without any restriction on
their possession of firearms) were more fit to own firearms
than domestic-violence misdemeanants who had not had
their convictions expunged or been pardoned. Reasonable
people might argue whether that distinction is good public
policy; but it is not irrational.
Hancock, 231 F.3d at 566-67.
In Barnes, the defendant pleaded guilty in 1997 to a District of
Columbia charge of assault, 295 F.3d at 1357, which the Barnes court
held met the definition of a MCDV under 18 U.S.C.
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§§ 921(a)(33)(A)(i) and (ii). Barnes, 295 F.3d at 1358-66. None of his
civil rights were stripped away because, under the law of the District
of Columbia, a misdemeanant does not lose his civil rights. Id. In
2000, the defendant possessed a firearm and ammunition and was
charged with violating 18 U.S.C. § 922(g)(9). Barnes, 295 F.3d at
1357. He conditionally pleaded guilty to the 18 U.S.C. § 922(g)(9)
charge, and, on appeal, he argued that he was in a worse position than
a person convicted of the same offense in a jurisdiction that autho-
rized the loss of civil rights but also allowed their restoration. Barnes,
295 F.3d at 1368. According to the defendant, his equal protection
rights were violated because there was no rational basis for this dis-
tinction. Id. The Barnes court rejected the defendant’s argument for
the foregoing reasons:
Congress’s decision to incorporate state law governing for-
feiture of civil rights was rational irrespective of differences
among states regarding restoration. Furthermore, the Con-
gress provided other methods such as expungement and par-
don that Barnes might use to come within the exception of
section 921(a)(33). See McGrath v. United States, 60 F.3d
1005, 1008 (2d Cir. 1995), cert. denied, 516 U.S. 1121, 116
S. Ct. 929, 133 L. Ed.2d 857 (1996).
Barnes, 295 F.3d at 1368.
We conclude that the literal application of the word "restored" as
contained in 18 U.S.C. § 921(a)(33)(B)(ii) to Jennings, i.e., requiring
him to demonstrate that his civil rights were lost and restored, does
not produce an absurd result. First, as recognized by the McGrath,
Smith, Hancock, and Barnes courts, Congress knew when it enacted
the restoration exceptions of 18 U.S.C. §§ 921(a)(20) and
921(a)(33)(B)(ii) that the several states had drastically different laws
governing the restoration of civil rights and that drastically different,
perhaps anomalous, results were bound to occur. Barnes, 295 F.3d at
1368; Hancock, 231 F.3d at 566-67; Smith, 171 F.3d at 624-25;
McGrath, 60 F.3d at 1009. However, Congress intentionally keyed
the restoration of civil rights to state law, Smith, 171 F.3d at 624-25;
McGrath, 60 F.3d at 1009, so it follows that Congress consciously
made the decision to accept anomalous results—like a result that
favors incarcerated misdemeanants over misdemeanants that were not
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incarcerated. Second, Jennings has other avenues he can pursue to fall
within the restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii);
namely, pardon and expungement. Barnes, 295 F.3d at 1368; Smith,
171 F.3d at 625. Third, to accept Jennings’ position would allow the
restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii) to swallow the
rule. Smith, 171 F.3d at 624. Under Jennings’ formulation, all persons
who are convicted of a MCDV and who do not lose their civil rights
would be permitted to possess a firearm. Such a construction would
allow almost all persons convicted of a MCDV to possess a firearm,
thereby substantially undercutting the federal policy aimed at trying
to take firearms out of the hands of persons convicted of a MCDV.
Jennings also suggests that the word "restored" is capable of
another, more limited construction. Under Jennings’ more limited
construction, a misdemeanant who does not lose his civil rights,
because he was not incarcerated, has had his civil rights "restored"
under the restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii),
while a misdemeanant who does not lose his civil rights, because he
cannot under the applicable state law, has not had his civil rights
"restored." According to Jennings, such a construction would not only
give meaning to 18 U.S.C. § 921(a)(33)(B)(ii)’s parenthetical lan-
guage "(if the law of the applicable jurisdiction provides for the loss
of civil rights under such an offense)," id. § 921(a)(33)(B)(ii), but also
would not put firearms in the hands of most persons convicted of a
MCDV; rather, firearms would wind up only in the hands of persons
convicted of a MCDV in the small minority of states that allow for
the loss of civil rights while the defendant is incarcerated. We reject
this argument. In our view, consistent with the plain meaning of the
word "restored" as contained in the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii), there is no logical or meaningful way to hold, on
the one hand, that a person who is convicted of a MCDV in a state
like South Carolina, where the state strips civil rights only while the
defendant is incarcerated, can possess a firearm, and, on the other
hand, hold that a person who commits a MCDV in a state that does
not strip civil rights, cannot possess a firearm. Jennings’ position is
simply untenable because it asks this court to embrace multiple defi-
nitions of the word "restored," which we decline to do. Moreover, the
distinction between misdemeanants who are not incarcerated and mis-
demeanants who are incarcerated is rational and does not lead to an
absurd result. Congress reasonably could conclude that misdemean-
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ants who had been through a state’s restoration process and had
regained their civil rights were more fit to own firearms than misde-
meanants who had not lost their civil rights, had not had their convic-
tions expunged, or had not been pardoned.
In summary, we hold that the literal application to Jennings of the
word "restored" as contained in the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii) does not produce an absurd result. Because Jen-
nings’ civil rights were neither revoked nor restored, he cannot take
advantage of the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii). Accordingly, the district court did not err when it
refused to dismiss Jennings’ indictment on the ground that he met the
restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii).
III
Under 18 U.S.C. § 921(a)(33)(B)(i)(I), a person is not to be consid-
ered to have been "convicted" of a MCDV unless he was represented
by counsel in the MCDV case, or "knowingly and intelligently
waived [his] right to counsel" in the MCDV case. Id. § 921(a)(33)(B)
(i)(I). In addition, under 18 U.S.C. § 921(a)(33)(B)(i)(II), a person is
not to be considered to have been "convicted" of a MCDV unless: (1)
the MCDV case was prosecuted in a jurisdiction in which the person
was entitled to a jury trial for the MCDV offense, id.; and (2) either
the case was tried before a jury, id. § 921(a)(33)(B)(i)(II)(aa), or the
person "knowingly and intelligently waived the right to a trial by jury,
by guilty plea or otherwise," id. § 921(a)(33)(B)(i)(II)(bb). According
to Jennings, his 18 U.S.C. § 922(g)(9) conviction cannot stand
because he did not knowingly and intelligently waive his right to
counsel and his right to a jury trial in the March 1997 CDV case.
The Sixth Amendment guarantees an accused the right to counsel
in all critical stages of the prosecution and the right to a trial by jury.
U.S. CONST. amend. VI. The Sixth Amendment also guarantees the
right to self-representation. Faretta v. California, 422 U.S. 806, 819
(1975). A criminal defendant, however, "may knowingly and volun-
tarily waive many of the most fundamental protections afforded by
the Constitution," United States v. Mezzanatto, 513 U.S. 196, 201
(1995), including the right to counsel, Alabama v. Shelton, 122 S. Ct.
1764, 1770 (2002) ("It is thus the controlling rule that ‘absent a know-
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ing and intelligent waiver, no person may be imprisoned for any
offense . . . unless he was represented by counsel at his trial.’") (quot-
ing Argersinger v. Hamlin, 407 U.S. 25, 37 (1972)), and the right to
a jury trial, Patton v. United States, 281 U.S. 276, 298 (1930). To be
valid, a defendant’s waiver of his right to counsel and his right to a
jury trial must be knowing and intelligent. Shelton, 122 S. Ct. at 1770
(right to counsel); Faretta, 422 U.S. at 835 (noting that the decision
to represent oneself must be knowing and intelligent); Patton, 281
U.S. at 309-13 (right to a jury trial).
We have reviewed the procedure that Judge Herbert routinely
employed, in her twenty-one years as a municipal court judge, to
secure a defendant’s waiver of his right to counsel and his right to a
jury trial and are satisfied that the procedure was followed in Jen-
nings’ March 1997 CDV case and that the procedure meets constitu-
tional minimums.4 Accordingly, we conclude Jennings knowingly and
intelligently waived his right to counsel and his right to a jury trial in
the March 1997 CDV case.5
4In reaching this conclusion, we assume, without deciding, that Jen-
nings was entitled to a jury trial under South Carolina law in the March
1997 CDV case.
5At oral argument, Jennings relied on Shelton, a case decided by the
Supreme Court after the parties’ briefs were filed in this case. In Shelton,
the Supreme Court held that a sentence of actual imprisonment, or a
prison sentence suspended or for which probation was granted, triggers
the constitutional right to counsel. 122 S. Ct. at 1776. Consequently, only
trials that end up in the actual deprivation of a person’s liberty require
that the accused receive "‘the guiding hand of counsel.’" Id. at 1767
(quoting Argersinger, 407 U.S. at 40). A court that ends up fining a
defendant has not placed that liberty in jeopardy and therefore is not
required to appoint counsel for that defendant, even though the defendant
was charged with a statutory offense for which imprisonment upon con-
viction was authorized. Shelton, 122 S. Ct. at 1769; Scott v. Illinois, 440
U.S. 367, 369, 373 (1979). In this case, although Jennings was, per Shel-
ton, entitled to counsel in the March 1997 CDV case, he knowingly and
intelligently waived his right to counsel in that case. Accordingly, Shel-
ton is of no help to Jennings. Shelton, 122 S. Ct. at 1770 ("It is thus the
controlling rule that ‘absent a knowing and intelligent waiver, no person
may be imprisoned for any offense . . . unless he was represented by
counsel at his trial.’") (quoting Argersinger, 407 U.S. at 37).
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IV
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent with respect to Section II of the majority
opinion and would reverse the judgment of the district court denying
the defendant’s motion to dismiss the indictment on the ground that
his civil rights had been restored within the meaning of 18 U.S.C.
§ 921(a)(33)(B)(ii).
Today, the majority decides that 18 U.S.C. § 921(a)(33)(B)(ii)
should be read literally, over-literally I contend, with respect to the
word "restored," and decides that the restoration exception does not
apply to the defendant because his misdemeanor conviction did not
result in a term of imprisonment. In making this determination, how-
ever, the majority fails to give effect to the parenthetical language in
the statute. It is this language that has brought about the various views
of the circuits as to Congress’s intention regarding gun possession.
Furthermore, it is this language that divides me from the majority’s
position today.
Section 921(a)(33)(B)(ii) reads, in pertinent part: "A person shall
not be considered to have been convicted of such an offense . . . if
the conviction . . . is an offense for which the person has been par-
doned or has had civil rights restored (if the law of the applicable
jurisdiction provides for the loss of civil rights under such an offense)
. . . ." 18 U.S.C. § 921(a)(33)(B)(ii) (emphasis added). I agree with
the majority that by this language Congress intended to "look to state
law to define the restoration exception" and was keenly aware that it
would create a disparity in application of the federal law among the
States. See slip 13-18, citing United States v. Smith, 171 F.3d 617,
625 (8th Cir. 1999). See also United States v. Wegrzyn, 305 F.3d 593,
595 (6th Cir. 2002) ("Congress chose to allow the states themselves
to dictate the parameters of the statutory exception by recognizing the
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differences among state laws concerned with loss of civil rights upon
conviction for certain offenses."). While it is clear that Congress
elected to defer to state law, it is not patent that Congress desired to
recognize both a disparity among States, and also within an individual
State, as the majority decision would require.
Upon first glance, it might seem that the majority’s reading is cor-
rect: construing the word "restored" over-literally, the defendant’s
civil rights were never revoked, therefore, there was nothing to restore
and the restoration exception is inapplicable as it pertains to him. But
this is like the offer of "more" tea to Alice who yet had had none. See
Alice in Wonderland, Carroll, Grossett & Dunlop, 1980, p. 79. Apply-
ing this reading ignores the directive contained in the parenthetical
section of the statute (if the law of the applicable jurisdiction provides
for the loss of civil rights), which is as much a part of the statute as
any other part. In constructing this statute, Congress intended the res-
toration exception to differentiate between those jurisdictions in
which misdemeanants may lose their civil rights and those jurisdic-
tions that do not provide for such a loss. The majority’s reading, mis-
takenly, I believe, assumes that Congress also intended to
differentiate among individual misdemeanants and allow only some
people within an applicable jurisdiction to benefit from the exception.
While it does seem that Congress knew it would create anomalous
results from jurisdiction to jurisdiction, I suggest that nothing in the
statute indicates that Congress intended the results of today’s deci-
sion. Indeed, under the majority’s reading, within the State of South
Carolina, a defendant, as here, would be unable to possess a firearm
because his underlying crime did not warrant incarceration, but
another offender in that same State whose crime justified imprison-
ment would qualify for the section 921(a)(33) exception. See Wegr-
zyn, 305 F.3d at 595 (noting that in Michigan someone who
"committed a more egregious offense justifying incarceration would
nevertheless be allowed — upon completion of a jail sentence — to
possess a firearm, while another misdemeanant whose transgression
did not merit such severe punishment would be treated more harshly
at the conclusion of a more lenient punishment").
Not only does the majority decision require such an unreasonable
result, it goes beyond what the other circuits have decided with
respect to this issue. In each of the decisions on which the majority
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relies, the predicate convictions were not in jurisdictions that provided
for the loss of civil rights for misdemeanants. See United States v.
Barnes, 295 F.3d 1354, 1368 (D.C. Cir. 2002) (noting that there is no
law in the District of Columbia that forfeits the civil rights of misde-
meanants, and finding no equal protection violation in those jurisdic-
tions that do provide for loss of civil rights); United States v.
Hancock, 231 F.3d 557, 565-66 (9th Cir. 2000), cert. denied, 532 U.S.
989 (2001) (stating that misdemeanants in Arizona do not lose their
civil rights, and refusing to find it a violation of equal protection that
felons who lose their civil rights could benefit from the restoration
exception while misdemeanants do not); United States v. Smith, 171
F.3d 617, 623-25 (8th Cir. 1999) (noting that the federal restoration
exception does not apply because Iowa law does not strip misdemean-
ants of their civil rights, and finding no equal protection violation in
the fact that felons can qualify for an exception under 18 U.S.C.
§ 921(a)(20)); McGrath v. United States, 60 F.3d 1005 (2d. Cir.
1995), cert. denied, 516 U.S. 1121 (1996) (addressing the restoration
exception provided in § 921(a)(20) and finding that under Vermont
law felons who are convicted but never incarcerated do not lose their
civil rights). But cf. United States v. Meza-Corrales, 183 F.3d 1116,
1129 n.5 (9th Cir. 1999) ("McGrath has been disagreed with by a
number of other circuits, including the one upon which the authors of
McGrath initially relied, and including the Ninth Circuit . . . .") (cita-
tions omitted). Thus, the restoration exception could not be applied to
the defendants in any of those cases and the courts were not required
to decide whether Congress intended anomalous results to occur
within a jurisdiction. Indeed, the Eighth Circuit in United States v.
Smith distinguished a contrary reading of the statute adopted by the
First Circuit in United States v. Indelicato,* 97 F.3d 627 (1st Cir.
*Indelicato involved an analysis of 18 U.S.C. § 921(a)(20), which
does not contain the same parenthetical language of § 921(a)(33), and
reads in pertinent part:
Any conviction [of any State offense classified by the laws of the
State as a misdemeanor and punishable by a term of imprison-
ment of two years or less] 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 . . . .
18 U.S.C. § 921(a)(20).
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1996), specifically because the Indelicato court had an applicable
state law that enabled it to fit under the federal exception. The Smith
court reasoned that the Indelicato court was "indulging in a fiction"
in which it was not "at liberty to engage." Smith, 171 F.3d at 623. But
Indelicato concluded that such civil rights "to the extent they were
never taken away, should be treated as ‘restored.’" 97 F.3d at 631.
More like our case, the Sixth Circuit decision in United States v.
Wegrzyn, a case on facts indistinguishable from the case at hand,
involved a jurisdiction in which the restoration exception was applica-
ble because Michigan law provides for the loss of civil rights for con-
viction of a misdemeanor "only while confined in a correctional
facility." See Wegrzyn, 305 F.3d at 595. Facing a similar situation to
the one we have here today, the Wegrzyn court determined that the
defendant, while never incarcerated, should benefit from the restora-
tion exception because it gives effect to Congress’s intention to let
state law control. Wegrzyn, 305 F.3d at 595. I agree with the Wegrzyn
court. Adopting our majority’s reading of the statute actually enables
federal law to create disparate results within the same State, which
seems to me to cut directly against providing the States with control
over the parameters of individual crimes.
Additionally, finding that the restoration exception should apply to
the defendant would not, I suggest, as the majority fears, "allow the
restoration exception . . . to swallow the rule." Slip at 18 (citing
Smith, 171 F.3d at 624). The parenthetical language dictates that only
a limited number of jurisdictions will be able to apply the restoration
exception, thus only those limited jurisdictions will even face this
problem. Deciding that those jurisdictions in which the exception
applies should have consistency with respect to their own offenders
does not alter Congress’s ultimate intention in enacting the statute: to
differentiate between those jurisdictions that strip misdemeanants of
their civil rights and those that do not in order to defer to the States
as to how they define the boundaries of the crime.
Unlike the Second, Eighth, Ninth, and District of Columbia Cir-
cuits, this court must address the parenthetical language of section
921(a)(33)(B)(ii) because South Carolina is the type of jurisdiction
that Congress contemplated in enacting the statute. While it seems
clear that Congress was aware (and indeed expected) that certain
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anomalous results that would arise from its wording of section
921(a)(33), it cannot be gleaned from the language of the statute that
the exception was designed to apply as the majority has done today.
Congress intended to allow the States to define the parameters of the
individual crimes, and this court should allow them to do just that.
The State of South Carolina has elected to strip misdemeanants of
civil rights; therefore, section 921(a)(33)(B)(ii) should be applicable
to misdemeanants in that jurisdiction. To allow the federal rule to then
alter the law within that jurisdiction by providing that misdemeanants
whose crimes did not warrant incarceration should not be allowed to
possess guns, when those who did serve time may possess guns,
removes the control from the States that Congress originally intended.
For the foregoing reasons, I would reverse the decision of the dis-
trict court and hold that the restoration exception of 18 U.S.C.
§ 921(a)(33)(B)(ii) exempts application of 18 U.S.C. § 922(g)(1) as to
the defendant.
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