United States of America v. Thomas Vernon Philp

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0308p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
THOMAS VERNON PHILP,
Defendant-Appellant.
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No. 05-5308
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 03-00013—Todd J. Campbell, District Judge.
Argued: January 25, 2006
Decided and Filed: August 22, 2006
Before: SILER, SUTTON, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby,
ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF:
Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby, ASSISTANT UNITED
STATES ATTORNEY, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Defendant Thomas Philp appeals the denial of his motion to dismiss
count one of his indictment charging him with being a felon-in-possession of a firearm in violation
of 18 U.S.C. §§ 924 and 922(g)(1). Philp asserts that his breaking and entering of an unoccupied
dwelling conviction from 30 years ago cannot support the felon-in-possession charge because, under
Michigan law, his “civil rights were restored” by operation of law and therefore his breaking and
entering conviction cannot be considered a “conviction.” Thus, the question we must address is
whether “breaking and entering of an unoccupied building” is a “specified felony” under MICH .
COMP . LAWS ANN . § 750.224(f). Conviction of a specified felony requires that a person apply for
the right to possess firearms, which Philp concedes he did not do. Because the Michigan Court of
Appeals affirmatively decided this question in Tuggle v. Michigan Department of State Police, 712
1

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No. 05-5308 United States v. Philp Page 2
1The Michigan Supreme Court denied an application for leave to appeal this decision on July 31, 2006, ___
N.W.2d ___, 2006 WL 2111110, at *1.
N.W.2d 750 (Mich. Ct. App. 2005),1 we AFFIRM his conviction and the district court’s denial of
Philp’s motion to dismiss.
BACKGROUND
Philp was convicted in 1970 of breaking and entering of an unoccupied building in Michigan.
He argues his civil rights were restored by virtue of the MICH . COMP . LAWS ANN . § 7540.224f,
which provides that a convicted felon may possess a firearm upon the expiration of 3 years after
completion of probation or parole. The relevant portions of MICH . COMP . LAWS ANN . § 7540.224f
provide:
(1) Except as provided in subsection (2), a person convicted of a felony shall not
possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in
this state until the expiration of 3 years after all of the following circumstances exist:
(a) The person has paid all fines imposed for the violation.
(b) The person has served all terms of imprisonment imposed for the
violation.
(c) The person has successfully completed all conditions of probation
or parole imposed for the violation.
(2) A person convicted of a specified felony shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a firearm in this state until all of the
following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances
exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed
for the violation.
(iii) The person has successfully completed all
conditions of probation or parole imposed for the
violation.
(b) The person’s right to possess, use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm has been restored pursuant to section 4 of Act
No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan
Compiled Laws.
***
(6) As used in subsection (2), “specified felony” means a felony in which 1 or more
of the following circumstances exist:

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No. 05-5308 United States v. Philp Page 3
(i) An element of that felony is the use, attempted use, or
threatened use of physical force against the person or
property of another, or that by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.
***
(v) The felony is burglary of an occupied dwelling or
breaking and entering an occupied dwelling, or arson.
The Government argues that Philp’s felony was a “specified felony” and that those convicted of the
“specified felonies” must apply to have their rights restored to a Concealed Weapon Licensing
Board in the county of their residence. See M ICH . COMP . LAWS ANN . § 28.424. Philp admits that
he did not apply and concedes that he loses if breaking and entering of an unoccupied dwelling is
a specified felony.
The district court ruled that Philp’s conviction of breaking and entering includes the element
of “breaking,” Michigan law holds that the “breaking” element is satisfied by evidence of “slight
force,” and, thus, his felony meets the criteria for a “specified felony.” It noted Philp’s argument
that “slight force” does not equate to “physical force” as used in the “specified felony” definition
but rejected it on the grounds that “slight force certainly requires use of physical force,” which is
“physical force” against the person or property of another contained in the “specified felony”
definition. The district court concluded that Philp committed a “specified felony,” which required
him to have applied for restoration of his firearm rights, which he admittedly did not do. Thus, it
denied his motion to dismiss.
ANALYSIS
We review de novo a district court's denial of a motion to dismiss an indictment on legal
grounds. United States v. Crayton, 357 F.3d 560, 564 (6th Cir. 2004) (citations omitted). We apply
state law as decided by the Michigan Supreme Court. When an issue is yet to be decided by the
Michigan Supreme Court, we look to “relevant data,” including state appellate decisions. See
Kingsley Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995). “Relevant data
include decisions of the state appellate courts, and those decisions should not be disregarded unless
we are presented with persuasive data that the Michigan Supreme Court would decide otherwise.”
Id. at 507.
We are aware of only two persuasive cases directly addressing what constitutes a “specified
felony” under Michigan law. The Eleventh Circuit in United States v. Tait, 202 F.3d 1320, 1325
(11th Cir. 2000) (attempted larceny from a motor vehicle is not a specified felony), and the
Michigan Court of Appeals in Tuggle v. Dept. of State Police, 712 N.W.2d 750, 756 (Mich. Ct. App.
2005) (breaking and entering of unoccupied dwelling is a specified felony), reach irreconcilable
results.
We will accept the holding of a state intermediate appellate court with respect to state law
unless we determine the highest court of the state would decide otherwise. See Hicks v. Feiock, 485
U.S. 624, 630 n. 3 (1988). Without demonstrating that the Michigan Supreme Court would decide
that breaking and entering of an unoccupied dwelling is not a specified felony, we are “not at liberty
to depart from the state appellate court's resolution” of this issue of state law. Id. at 629. There is
no evidence that the Michigan Supreme Court would decide contrary to Tuggle. “In order to
determine the Michigan law, we thus turn to the decisions of the Michigan intermediate courts,

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No. 05-5308 United States v. Philp Page 4
2This case was approved for publication on February 9, 2006.
which are binding authority in federal courts in the absence of any Michigan Supreme Court
precedent.” Hampton v. United States, 191 F.3d 695, 701-02 (6th Cir. 1999) (citations omitted).
While this appeal was pending the Michigan Court of Appeals decided Tuggle, which
categorized attempted breaking and entering of an unoccupied dwelling as a “specified felony.” 712
N.W.2d at 756.2 In facts nearly identical to the present case, Tuggle attempted to purchase a firearm
in 2001 after he completed his sentence for attempted breaking and entering of an unoccupied
dwelling in 1985. His application for purchase of a firearm was denied on the basis that he had
committed a specified felony and did not comply with the requirements of MICH . COMP . LAWS ANN .
§ 750.224f. He challenged that decision in a declaratory action on the ground that attempted
breaking and entering of an unoccupied building was not a specified felony. The trial court granted
summary judgment stating:
The crime of breaking and entering an unoccupied dwelling unquestionably is a
felony that[,] by its nature, involves substantial risk that physical force against the
property of another may be used in the course of committing the offense. Therefore,
this Court holds that this felony is a “specified felony.”
Tuggle, 712 N.W.2d 750, 756-56. Tuggle appealed to the Michigan Court of Appeals, which
declined to negate the “physical force against the person or property of another” portion of the
definition of specified felony. The court held that breaking and entering was a specified felony
because of the plain language of the statute and the likelihood that felonies could easily fall within
one or more categories of the definition of specified felonies under MICH . COMP . LAWS ANN .
750.224f(6).
Philp relies on Tait where the Eleventh Circuit addressed our issue of interpreting Michigan
law regarding a “specified felony” in the context of Tait’s attempted-larceny-from-a-motor-vehicle
conviction. 202 F.3d at 1325. The Tait court held that “Tait’s civil rights were unreservedly restored
to him by operation of Michigan law, and Tait was not subject to prosecution under 18 U.S.C.
§ 922(g)(1).” The court upheld the district court’s determination that “a logical interpretation of the
statute would be that physical force is not required.”
The government distinguishes Tait as being an analysis of an offense for auto larceny
without a “breaking.” We agree that the defendant in Tait committed a different crime so the
differing elements must factor into the assessment of the applicability of the Tait opinion. Because
there is no indication that the Michigan Supreme Court would not follow Tuggle, we hold that
breaking and entering of an unoccupied dwelling is a specified felony. Philp failed to restore his
right to possess a firearm and thus illegally possessed that firearm. M ICH . COMP . LAWS ANN .
§ 750.224f(2); People v. Brown, 642 N.W.2d 382, 383 (Mich. Ct. App. 2002).
AFFIRMED.

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