USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 94-2026

UNITED STATES OF AMERICA,

Appellee,

v.

GERALD R. CARON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge, Coffin, Senior Circuit Judge,

___________
____________________
Selya, Cyr, Boudin, Stahl, and Lynch, Circuit Judges.
______________

____________________

Owen S. Walker, Federal Public Defender, for appellant.

______________
Timothy Q Feeley,
__________________

Assistant

U.S.

Attorney,

Brian T. Kel
______________

Assistant U.S. Attorney, Donald K. Stern, United States Attorney,

________________
appellee.

____________________

February 26, 1996

____________________

OPINION EN BANC

____________________

COFFIN, Senior Circuit Judge.

____________________

convicted

of

possessing

rifles,

Appellant Gerald R. Caron was

shotguns

and

ammunition

in

violation

law.

of

Because

convictions

sentence

18 U.S.C.

922(g)(1),

at least

three of Caron's

were

for

enhancement

21 years,

release.

924

10 months,

See U.S.S.G.
___

five predicate

of violence,

under

("ACCA"), 18 U.S.C.

of

crimes

the "felon-in-possession"

the

Armed

(e)(1).

plus a

he

was

Career

U.S.C.

supervised

4B1.4.

not be counted

Massachusetts

as predicate crimes

under 18

921(a)(20), which excludes as predicates

[a]ny conviction which has

or

for which

civil

rights

that

been expunged, or set aside

a person

has been

restored

expungement, or restoration
provides

the

Act

prison term

term of

The issue in this case is whether three prior

convictions should

subject to

Criminal

Caron received a

five year

felony

pardoned or
unless

such

of civil rights

person may

not

ship,

has had
pardon,
expressly

transport,

possess, or receive firearms.

The

questions we

must

address relate

to

the words

preceding

"unless," and, in particular, the procedure by which one "has had

civil

rights restored."

application,

two of

Under Massachusetts

Caron's

automatically after a lapse

basic civil

laws of

rights were

of time or at the

general

restored

expiration of his

sentence; the remaining one was never taken away from him.

In

an earlier stage of this

case,

United States v. Caron,

_____________
_____

64 F.3d 713, 718 (1st Cir. 1995), a panel of

this court, deeming

itself bound to follow United States v. Ramos, 961 F.2d 1003 (1st
_____________
_____

Cir. 1992), held that the requirements of

only

by "focused,

921(a)(20) can be met

individualized, affirmative

-2-

action," not

by

laws

of

general

decided to

or

automatic application.

reconsider this

holding en
__

We

subsequently

banc, allowed
____

the panel

opinion to remain in effect

as to the other issues decided,

asked

for briefing

additional issue:

Ramos
_____

panel

cannot

reasoned

be satisfied

collateral

on one

(regarding

where

consequence

of

civil

whether,

misdemeanors),

rights

conviction,

are

since

and

as the

921(a)(20)

not

lost

there

is

as

"no

individualized official judgment" evidencing the state's "renewed

trust" in the individual.

The government,

of

the panel's

defining

Ramos, 961 F.2d at 1009.

_____

after having filed a

position,

notified us

the restoration

affirmative actions

of civil

brief urging adoption

that

it was

rights to

was required to "restore"

such rights.

longer

exclude automatic

based on generic statutes.

did not retreat from its insistence that

no

It nevertheless

some affirmative action

And it

did not withdraw

its fallback contentions that Massachusetts statutes do not fully

restore the civil rights

expressly

restrict

Notwithstanding the

of convicted felons and, in

their

rights

to

government's change of

possess

any event,

firearms.

position, which

was

unexplained, we must arrive at our own independent judgment.

After due deliberation, we now hold, in accordance

with our

seven sister circuits,1

that civil rights may be restored within

____________________

McGrath v. United States,

_______
_____________

United States v.
______________

Hall, 20
____

60 F.3d 1005

F.3d 1066

States v. Glaser, 14 F.3d 1213

______
______

(10th Cir.

(2d Cir. 1995);

1994); United
______

(7th Cir. 1994); United States v.

_____________

Thomas, 991 F.2d 206 (5th Cir. 1993); United States v. Dahms, 938
______
_____________
_____
F.2d 131 (9th
(4th

Cir. 1991); United States v. Essick, 935

______________
______

F.2d 28

Cir. 1991); and United States v. Cassidy, 899 F.2d 543 (6th
_____________
_______

Cir. 1990).

-3-

the meaning of

921(a)(20) by laws of

also hold that, at

the

We

least where some civil rights are restored by

operation of such

never

general application.

laws, the fact

that one

civil right was

lost does not prevent an individual from having "had civil

rights restored" within the meaning of the provision.

BACKGROUND

A.

Facts
_____

We briefly set forth

the relevant facts.

in 1993, rifles, shotguns and

At the time

of his

Massachusetts

California

felony

convictions

conviction

two occasions

ammunition were seized from Caron.

arrest, his criminal

felony

On

record included

(1958,

(1970),

and

1959,

and

three

1963),

federal firearms

felony conviction (1977).

violent

crimes which could

See 18 U.S.C.
___

B.

All four state convictions constituted

serve as predicates

under the ACCA.

924(e)(2)(B).

Massachusetts Statutory Scheme

______________________________

"Civil

rights," within

the meaning

of

921(a)(20), have

been generally agreed to comprise the right to vote, the right to

seek and

hold public office, and

the right to serve

on a jury.

United States
_____________

v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990).

_______

an

matter,

initial

therefore,

we

recount

the

As

relevant

Massachusetts laws corresponding to these rights.

A convicted felon in Massachusetts

to

vote.

See Mass.
___

however, lose the right

Gen. L.

ch. 54,

does not lose the

86,

103B.

to hold public office while

right

He does,

serving his

sentence.

Mass.

Gen.

L.

ch.

279,

30.

And,

felon is

-4-

disqualified

from

conviction.

Mass. Gen. L. ch.

seven years, a

juror

service

until seven

234A,

from

his

4.

However, even after

judge can remove one from a

jury panel solely on

the basis of a prior felony conviction.

8.

years

Mass. Gen. L. ch. 234,

Clearly,

the

Massachusetts

"individualized,

affirmative

"restoration," as the

therefore,

on

right to

both

fronts,

Massachusetts convictions

scheme

neither

actions"

nor

vote is never

would

provides

for

complete

removed.

mandate

that

count for purposes of the

for

Ramos,
_____

Caron's

ACCA.

Now,

sitting en banc, we revisit the question whether we should depart

__ ____

from the positions we took in Ramos.

_____

DISCUSSION

A.

Restoration of Civil Rights: Individualized Acts Only?

_______________________________________________________

We approach

the task

of statutory interpretation

with the

following guideline foremost in mind:

So

long

as

definite, that

the

statutory

language

is

reasonably

language must ordinarily be regarded as

conclusive (at least in

the absence of an unmistakable

legislative intent to the contrary).

United States v. Charles George Trucking Co., 823 F.2d

_____________
____________________________

685, 688

(1st Cir. 1987) (citations omitted).

The key words of 18 U.S.C.

aside,"

"pardoned," and

words signify a result:

dismiss, discard,

punishment, release

921(a)(20) are "expunged," "set

"civil rights

restored."

All of

the

strike out, efface, eliminate (expunge);

annul (set

aside); excuse an

offense without

an offender from punishment

(pardon); bring

-5-

back to an

address

original state or condition (restore).2

the means by which

the results may

They do not

be accomplished or,

consequently, indicate preference for any particular means.

In Ramos,
_____

restorations

our panel assumed that

of

rights

all

involved

pardons, expungements and

individualized

judgments and procedures. 961 F.2d at 1010.

of practices

adopted by states has

United States v. Glaser, 14 F.3d

_____________
______

court

noted

necessarily

that

"[n]either

individualized,"

official

But the wide variety

since been pointed

out.

In

1213, 1218 (7th Cir. 1994), the

pardons

citing

nor

mass

expungements

pardons

by

are

both

Presidents

Jefferson

providing for

and Carter,

and

federal

"routine expungement" of

and state

laws

convictions for juvenile

offenses.

In McGrath v.
_______

1995),

the

United States,
_____________

court recognized

60 F.3d 1005,

that

"many

1008 (2d

states restore

Cir.

civil

rights to convicted felons by means of a general law stating that

all rights shall be

It

also noted

certificates

reinstated upon the service of

that other

of

states authorize

restoration

after

a sentence."

officials to

given

period

of

issue

time

following sentence or parole, while a minority of states "restore

rights in

piecemeal fashion," and twelve

states apparently have

no provision regarding restoration of civil rights.

Perhaps even more significantly,

in Dickerson v. New Banner

_________
__________

Inst., Inc.,
___________

460 U.S. 103

(1983), the Supreme

Court recognized

____________________

These synonyms are

substantially common

to The Random
___________

House Dictionary (2d ed. 1987), Webster's Third New International

________________
_________________________________
Dictionary (1976), and The American Heritage Dictionary (1973).
__________
________________________________

-6-

the

diversity

expungement.

of

state

post-conviction

actions

such

as

It noted that over half the states had enacted such

statutes

and

ranging

that they

varied

from applicability

offenses to

"in

only to

almost every

young offenders

automatic expunction, and amounted

than

a national patchwork."

that

the

purpose

frustrated

of the

by a ruling

Id.
__

at 121-22.

federal

particular,"

firearms

that gave effect

or certain

to "nothing less

The Court reasoned

statute "would

be

to state expunctions,"

id. at 119, and reversed a lower court ruling that had given full
__

effect

to a

state expungement

following a

successfully served

period of probation.3

Congressional reaction to Dickerson in large part

_________

accounted

for

the crafting of

921(a)(20), which expressly allowed state

law

to define a predicate conviction for purposes of the federal

firearms laws.4

See
___

921(a)(20),

diversity

therefore,

we take

into

In interpreting

account

not only

the

of state approaches to the restoration of civil rights

of convicted

Congress

McGrath, 60 F.3d at 1009.

_______

felons but also

the clearly manifested

purpose of

to defer to state laws, in this context, in determining

____________________

The

firearm disabilities

were imposed by

922(g)

and

(h), enacted

under Title

Control and

Safe Streets

Act of

IV

18 U.S.C.

of the

1968, Pub.

Omnibus Crime

L. No.

90-351, 82

Stat. 226 (1968) (as amended by the Gun Control Act of 1968, Pub.
L. No.

90-618, 82 Stat.

1214 (1968)).

In

1986, the

Firearms

Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986),
amended this law

by, inter
_____

alia, changing
____

921(a)(20) to

its

current form.

The

sentence

provides that "[w]hat

determined

preceding

the sentence

constitutes a

in accordance

with the

which the proceedings were held."

-7-

at

conviction . .
law

of the

18 U.S.C.

issue
. shall

here

be

jurisdiction in

921(a)(20).

predicate

convictions

disqualifications.

and

As the Court

the

removal

of

stated in Dickerson,
_________

firearm

"[a]s in

all cases of statutory construction, our task is to interpret the

words of [the statute]

to

serve." 460 U.S. at

in light of the purposes

118 (quoting Chapman

_______

Rights Org., 441 U.S. 600, 608 (1979)).

___________

Congress sought

v. Houston Welfare
_______________

In light of this background, we discern no basis for reading

into the words

use

at issue any gloss based on

or primacy

qualification

of

meaning.

upon

these words

that

such limitation

that

the plain

restoration

of

And, we

civil

hesitate

absent some

is warranted.5

language of

assumed frequency of

need

impose

we conclude

makes clear

not

textual indication

Accordingly,

921(a)(20)

rights

to

be

that the

focused

or

individualized.

____________________

5
of

We do not overlook a plausible reading of the last clause

921(a)(20)

("unless such

pardon . .

. expressly

provides

that the person may not . . . possess . . . firearms"), which the

panel

in

Ramos
_____

found

supported

its

interpretation

individualized action was required.

961 F.2d at

think

with a

an interpretation

consistent

provided by Glaser, 14 F.3d at 1218:

______

1008.

that
But

we

broader reading

is

A person who contends that state statutes have restored

all of his
the whole

civil rights . . . [requires us] to examine

of state statutory law

the state treats

him as "convicted" for the purpose of

possessing firearms.
formal

notice

of

however, the final

us to look, not

to determine whether

When the state gives the person a

the restoration
sentence of

of

civil

rights,

921(a)(20) instructs

at the content of the

state's statute

books but at the contents of the document.

This interpretation jibes with the Court's instruction in Beecham

_______

v. United States, 114 S. Ct. 1669, 1671 (1994), to focus on "the

______________

plain meaning of the whole statute -- not of isolated sentences."

-8-

From our

present perspective, therefore, we see

look into legislative history.6

v. Leroux, 69
______

language

F.3d 608,

history.").

U.S. at 110

take

1995) ("Plain

statutory

recourse to countervailing legislative

Nonetheless, given

contrary conclusion, and to

expressed

See Summit Inv. and Dev. Corp.

___ ___________________________

610 (1st Cir.

does not prompt

no need to

legislative intent

that

we

initially reached

ensure that there is not

to the

contrary,"

"a clearly

Dickerson, 460
_________

(internal quotation marks and citation

omitted), we

a brief foray into the legislative history of

921(a)(20).

Our review leads

us to the conclusion

that the legislative

history

of

the

provision

[statutory] text is

F.2d

493, 499 n.8

Sung v.
____

"'is

more

ambiguous.'"

than

the

United States v. Aversa,

______________
______

984

(1st Cir. 1993) (en

__

McGrath, 339
_______

U.S. 33,

statutory predecessors of

conflicting

banc) (quoting Wong Yang

____
_________

49 (1950)).

922(g)(1), 18

We begin

with the

U.S.C. App.

1201-

1203, which proscribed, inter alia, the possession of firearms by

_____ ____

____________________

We

exception,
rather than

note that

the other

focused their

circuits have,

analysis

the legislative history.

("'[R]estored' .
individualized.");

. . does

on

the statutory
See
___

14

F.3d

921(a)(20) distinguishes according to

at

language,

Hall, 20 F.3d at 1069

____

not suggest that

Glaser,
______

almost without

the action must

1218

("Nothing

be

in

the frequency with which a

state dispenses some boon."); Thomas, 991 F.2d at 213("[R]ights .

______
. .

reinstated automatically by

less 'restored' than are such

operation of law

rights that have been

. . .

are no

resurrected

by
911

an 'affirmative act' of the state."); United States v. Gomez,

_____________
_____
F.2d

require
state,
F.2d at

219, 221
an

(9th Cir.

1990)

individual affirmative

("If Congress
act

of

Congress could have so provided.").

546

that it was

(relying

on legislative

not clear whether

restoration by

the

But see Cassidy, 899

___ ___ _______

history after

921(a)(20)

intended to

concluding

contemplated looking

only at a discrete document or the whole law of a state).

-9-

convicted felon, id.

___

had "expressly

1202(a)(1), but exempted

been authorized

by the

President or

a person who

such chief

executive [of a state] to . . . possess . . . a firearm."

1203(2).

There

Id.
___

was no comparable pardon provision applicable to

the shipping or receipt of firearms under former

922(g)(1) and

(h)(1).

In

1981,

contained

921(a)(20).

S.

1030

essentially the

See
___

Committee Report

was

language of

Cassidy, 899 F.2d

_______

the

as

revised,

last sentence

of

Senate Judiciary

explained that the bill would

repair the above

pardon provision to

encompass

(1982).

at 547.

which,

described inconsistency between

Cong., 2d Sess. 18

introduced,

922

922.

and 1202 by expanding the

See S.
___

Rep. No. 476, 97th

In addition, the

explicit reference

to chief executives was dropped and the exemption was expanded to

include expungements and restorations of civil rights.

See id.
___ ___

While

such expansion

might indicate

a movement

individualized action, other excerpts provide

For

instance, to demonstrate the

away from

a contrary thrust.

need for the

bill, the report

expressly cited to Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974),
______
_____

where the court held that a state pardon still did not permit one

to receive or purchase a

Although the report

Thrall, it was
______

firearm.

made no

mention of

an individualized one.

following language to describe

"In the event that the official

____________

of

See S.
___

Rep. No. 476, at

the kind

The

of pardon

18.

in

report also used the

the last clause of

921(a)(20):

granting the pardon, restoration

rights or expungement of record does not desire it to restore

-10-

the

right

to

firearm

inapplicable where

ownership, this

the order

such

together,

restoration be

to fitness

these

rendered

provides that

Id. (emphasis added).

___

And

this last clause as providing "flexibility should

a pardon or

relating

is

or pardon expressly

the person may not possess firearms."

it referred to

provision

to

extracts

own a

might

based upon

firearm."

indicate

considerations not

Id.
___

that

at

12.

Taken

individualized

actions were intended.

Nonetheless, we note that

S. 49, the successor to

S. 1030,

was explained by Senator Hatch as addressing the problem

created

by imposing federal sanctions on persons who "have had their full

civil rights restored pursuant to State law."

This

[bill] will

since 1968
plea

and

period.
the

accommodate

which permit
successful

Since the

reforms

enacted

dismissal of charges

after a

completion

of

probationary

Federal prohibition is triggered by

States' conviction,

disqualifies an

State

He added:

the

individual

States' law
from firearms

as to
use

what
should

govern.

131

Cong. Rec.

S8,689

reference to reforms

both

the

and the

triggering

disqualification

(daily ed.

tilt

June

24, 1985).

linking of state

conviction

toward

the

and

Both

power to

the

inclusion

define

conditions

of

the

of

generic

restorations of rights.

It could be

and has

been argued that

held itself out as endeavoring

abusers,

states,

Congress, which

to tighten laws against

has

firearms

would not lightly turn over final decision power to the

allowing them

in effect

to nullify

But, as the Second Circuit observed,

-11-

federal sanctions.

The very decision to have restoration triggered by

events governed by state law insured anomalous results.
. .

. They

access to

are the

inevitable consequence

the exemption

depend on the

of making

differing laws

and policies of the several states.

McGrath, 60 F.3d at 1009.

_______

In summary, we discern no such clear and compelling evidence

of Congressional intent to

limit restoration of civil rights

individualized

procedures

and

interpretation

of

Ramos' holding
_____

regarding the

what

we

judgments

deem to

be

as

to

change

to

our

unambiguous

language.

need for individualized

action is

overruled.

B.

Restoration of Rights Not Taken Away

____________________________________

It remains for us to decide whether civil rights never taken

away can be said to be "restored."

The Ramos panel, dealing with

_____

a person convicted of a misdemeanor, and therefore a person whose

civil rights were left

untouched by Massachusetts law, concluded

that "restore" meant the giving back of what had been taken away.

It

addressed

the

anomaly

misdemeanors could

the most

that

those

convicted

never have firearms while

serious crimes could qualify, and

the affirmative

act of

mere

those convicted of

responded that "[b]y

pardon, expungement or

state has declared its renewed trust

of

restoration, the

in that person."

961

F.2d

at 1009.

In

argument

McGrath,
_______

the

Second

Circuit

agreed,

rejecting

the

that not having suffered the loss of one's civil rights

is the "functional equivalent" of restoration, explaining, "[t]he

'restoration'

of

thing

never

lost

or

diminished

is

-12-

definitional impossibility." 60

F.3d at 1007.

It discerned

an

intent in the 1986 legislation to treat "a subsequent forgiveness

. . . as an acknowledgement of rehabilitation

gesture

bar."

of goodwill

Id.
__

concerned,

that

And, as far

the

court,

merited exemption

as the probability

as

we

have

noted,

or an affirmative

from the

firearms

of "anomalies" was

deemed

this

as

inevitable.

It

concluded that only

Congress or the

particular

state can properly address the problem.

This

reasoning,

dismissed.

The

affirmative act

of

the

by the state.

the instant case,

absence

use

admittedly

however, we

word

"restore"

is

not

calls

easily

for

some

It is not cavalierly ignored.

are not confronted

of affirmative action, as

affirmative action has taken

technical,

in Ramos and
_____

In

with a

total

McGrath.
_______

Here,

place with respect to the

right to

sit on a jury (subject to some contingency) and the right to hold

public

words of

office.

Only the right to vote

921(a)(20) literally apply:

. . . has had

civil rights restored."

was not taken away.

Caron is

The

"a person [who]

In this case, therefore,

the dictates of both literalism and sense are met.

We leave

till another

day the

question whether,

when one
___

civil right is restored but two

were never taken away, the

answer would

with the basic

prevail, together

the literal application

rights were taken

of "restore"

same result.

We

holding, the

"restoration"

question whether

to a case

away is so lacking in sense

where no

-13-

civil

as to command the

acknowledge, however, that, contrary

requirement does

same

not

to Ramos'
_____

automatically

exclude

the

possibility

sometimes be viewed

that

921(a)(20)

that

as rights

rights

never

restored.

In

would seem to be in need

Congress so that the

taken

away

can

addition, we

note

of revisiting by the

problems that have busied the

courts might

be resolved in harmony with legislative intent.

* * *

Our two

other

holdings do not dispose of this case.

asserted issues, including whether

jury has been

There remain

the right to

sufficiently restored, and whether

sit on a

there has been

an express provision that appellant may not possess firearms.

must leave to the district

and other

issues

have

We

court the determination whether these

been

raised and

preserved,

and

their

disposition on the merits.

The judgment is vacated and the matter remanded to the

____________________________________________________________

district court for resentencing.

As to all other issues in the
_________________________________________________________________

case, the original panel opinion shall remain in full force.

____________________________________________________________

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