United States v. Jeffrey Brady , 438 F. App'x 191 ( 2011 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-5269
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    JEFFREY ALLEN BRADY,
    Defendant – Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.       Thomas David
    Schroeder, District Judge. (1:09-cr-00368-TDS-1)
    Submitted:   June 21, 2011                 Decided:   July 13, 2011
    Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
    Assistant Federal Public Defender, Greensboro, North Carolina,
    Elizabeth A. Flagg, Research & Writing Attorney, Winston-Salem,
    North Carolina, for Appellant.      Ripley Rand, United States
    Attorney, Michael F. Joseph, Assistant United States Attorney,
    Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Jeffrey     Allen     Brady       pled    guilty       without    a      plea
    agreement to one count of possession of a firearm by a convicted
    felon, in violation of 
    18 U.S.C. §§ 922
    (g)(1), 924(a)(2) (2006).
    The district court concluded that Brady had at least three prior
    “violent   felony”      or   “serious     drug     offense”       convictions     (“the
    1980s convictions”) * and that Brady was thus an armed career
    criminal under the Armed Career Criminal Act (“ACCA”), see 
    18 U.S.C. § 924
    (e), and U.S. Sentencing Guidelines Manual (“USSG”)
    § 4B1.4    (2009).       The    court    sentenced        Brady    to   180   months’
    imprisonment,     the    statutory      minimum      sentence      required     by    the
    ACCA.     Brady challenges this sentence on appeal, arguing that
    the district court erred in sentencing him as an armed career
    criminal because the 1980s convictions do not qualify as ACCA
    predicates.      Brady also argues that the district court committed
    plain    error   in   sentencing        him   as     an   armed    career     criminal
    because the indictment did not charge a violation of the ACCA
    and he did not admit to those facts necessary to justify an ACCA
    *
    Specifically, Brady had the following prior convictions at
    the time of his arrest in 2008: (1) a January 1984 conviction
    for   selling   and  delivering   methylenedioxyamphetamine;  (2)
    January 1984 convictions for selling and delivering LSD; and (3)
    an August 1986 conviction for assault with a deadly weapon
    inflicting serious injury.
    2
    sentence.        We disagree, and, for the reasons that follow, we
    affirm.
    I.
    Section      4B1.4    of    the       Sentencing       Guidelines     provides
    for the imposition of an enhanced sentence on any person who is
    an armed career criminal, as defined by 
    18 U.S.C. § 924
    (e)(1).
    USSG § 4B1.4(a) & cmt. n.1.                  Section 924(e)(1) of Title 18 is
    applicable to any person who violates 
    18 U.S.C. § 922
    (g) and has
    three     or    more     previous         “violent         felony”      or    “serious     drug
    offense”       convictions.           As     this          court     has     explained,    such
    predicate      convictions          must    be       “of    the     type     referred     to   in
    [18 U.S.C.] § 922(g)(1).”                 United States v. Clark, 
    993 F.2d 402
    ,
    403 (4th Cir. 1993).            Section 922(g)(1) of Title 18 applies to
    convictions for crimes “punishable by imprisonment for a term
    exceeding      one     year.”        However,         as     this    court     recognized      in
    United States v. O’Neal, 
    180 F.3d 115
    , 119 (4th Cir. 1999),
    there is “an important exception.”                         Section 921(a)(20) of Title
    18   excludes        from    qualification            as     a      crime    “punishable       by
    imprisonment for a term exceeding one year”:
    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.
    3
    
    18 U.S.C. § 921
    (a)(20)(2006).
    In   determining         whether       state    law     provides   that   a
    defendant’s civil rights have been restored, we “look to the
    whole of state law.”             Clark, 
    993 F.2d at 403
     (internal quotation
    marks omitted).           “This inquiry requires an analysis of whether
    and to what extent [North Carolina] restores the civil rights of
    ex-felons.”        United States v. Essick, 
    935 F.2d 28
    , 30 (4th Cir.
    1991) (internal quotation marks omitted).
    North Carolina law restores to convicted felons some
    civil   rights      upon    release     from        imprisonment.       See    
    N.C. Gen. Stat. § 13-1
    (1) (2009).                Brady was released from prison after
    serving imprisonment terms for the 1980s convictions on March
    24,   1990.        Upon    his    release,         Brady   regained    his    “rights   of
    citizenship,” including his rights to vote, hold office, and
    serve   on    a    jury.         See    
    N.C. Gen. Stat. § 13-1
    (1);    United
    States v. McLean, 
    904 F.2d 216
    , 217 n.1 (4th Cir. 1990).
    Brady, however, did not immediately regain the right
    to possess a firearm at the time of his release.                         At that time,
    North Carolina’s Felony Firearms Act (“NCFFA”), 
    N.C. Gen. Stat. § 14-415.1
    (a), provided that convicted felons could possess long
    guns anywhere and firearms in their home or lawful place of
    business and regained the right to possess all firearms five
    years after release from prison.                     See O’Neal, 180 F.3d at 120-
    4
    21.     Effective       December       1,   1995,      North     Carolina        amended    the
    NCFFA to replace the five-year ban with a permanent ban on a
    convicted felon’s right to possess certain firearms; the 1995
    amendment, however, did not alter the provision permitting a
    convicted felon to possess a long gun or a firearm in his home
    or    lawful    place    of     business.          See    United    States       v.    Farrow,
    
    364 F.3d 551
    , 554 (4th Cir. 2004).                       Effective December 1, 2004,
    North Carolina again amended the NCFFA, this time prohibiting
    convicted felons from possessing any and all firearms.                                      
    N.C. Gen. Stat. § 14-415.1
    (a) (2004).
    In     Brady’s      view,       the       district        court     erred      in
    sentencing him as an armed career criminal because, five years
    after he was discharged from the custody of the North Carolina
    Department of Correction, his civil rights were restored as to
    each of the 1980s convictions and, as a result, such convictions
    do not qualify as ACCA predicates.                       Although acknowledging that
    North Carolina amended the NCFFA in 2004 to prohibit convicted
    felons from possessing firearms under any circumstances, Brady
    contends       that    the    2004    amendment        cannot     deprive        him   of   his
    fundamental         right     to     possess       a   firearm      in     his    residence,
    see McDonald v. City of Chicago, 
    130 S. Ct. 3020
    , 3050 (2010);
    District of Columbia v. Heller, 
    554 U.S. 570
    , 635-36 (2008),
    without violating the Ex Post Facto Clause of the Constitution.
    5
    A.
    Brady correctly notes that, by operation of law, his
    right to possess any and all firearms was fully restored to him
    under North Carolina law on March 24, 1995, five years after his
    release from prison after he completed the prison sentences for
    the 1980s convictions.               See O’Neal, 180 F.3d at 121 (applying
    the law in effect at the time of the defendant’s discharge from
    prison    to    determine      the    right       of   the    defendant       to    possess
    firearms).            However,       the     2004      amendment         to   the     NCFFA
    retroactively stripped Brady of this previously restored right.
    See   
    N.C. Gen. Stat. § 14-415.1
    (a)        (2004);     Britt      v.    State,
    
    649 S.E.2d 402
    , 406 (N.C. Ct. App. 2007), rev’d on other grounds
    by Britt v. State, 
    681 S.E.2d 320
    , 323 (N.C. 2009).
    Whether the 2004 amendment to the NCFFA is ex post
    facto as applied to Brady is a question of law we review de
    novo.     Farrow, 
    364 F.3d at 554
    .                The Ex Post Facto Clause of the
    Constitution       prohibits         laws    that      “retroactively         alter        the
    definition of crimes or increase the punishment for criminal
    acts.”       Collins v. Youngblood, 
    497 U.S. 37
    , 43 (1990).                                The
    Supreme    Court      has   defined        the    latter     part   of    this      rule   as
    prohibiting laws that retroactively “increase[] the penalty by
    which a crime is punishable.”                    Ca. Dep’t of Corr. v. Morales,
    
    514 U.S. 499
    , 506 n.3 (1995).                     In O’Neal, this court observed
    that:
    6
    “Punishment” and “penalty” are constitutional terms of
    art, defined in contra distinction to laws that are
    “civil”   or   involve   “regulation  of   a   present
    situation.”   While laws that retroactively increase
    “punishment” or impose a “penalty” violate the Ex Post
    Facto Clause, retroactive civil or regulatory ones do
    not.
    O’Neal, 180 F.3d at 121-22 (internal citations omitted).
    In determining whether a law is punitive or regulatory
    in nature, courts apply a two-part test.                   A court should first
    ask “whether the legislature's intent, as discerned from the
    structure   and    design    of   the    statute     along   with    any   declared
    legislative      intent,    was   to   impose    a   punishment     or    merely   to
    enact a civil or regulatory law.”               Id. at 122.        Second, a court
    should determine whether the effect of the law is “so punitive
    in fact that the law may not legitimately be viewed as civil in
    nature.”    Id. (internal quotation marks omitted).                   The analysis
    under this second part of the test “focuses upon whether the
    sanction or disability that the law imposes may rationally be
    connected to the legislature’s non-punitive intent, or rather
    appears    excessive   in     light     of    that   intent.”       Id.    (internal
    quotation marks omitted).
    In    O’Neal,    this      court    rejected     the    argument   that
    retroactive application of the former five-year ban on handgun
    possession codified in the version of the NCFFA in effect in
    1983 was punitive and therefore unconstitutional under the Ex
    Post Facto Clause.          With regard to the first prong of the ex
    7
    post facto analysis, the court relied on several North Carolina
    decisions rejecting ex post facto challenges to earlier versions
    of section 14-415.1.              O’Neal, 180 F.3d at 123.               In view of these
    decisions, this court concluded that “North Carolina has made
    clear that its intent was to enact a civil disability to protect
    the public from those, felons, whose possession of guns there
    was the most reason to fear, not to impose any punishment or
    penalty on felons.”            Id.       In addressing the second part of the
    analysis, the court concluded that the effect of the five-year
    ban    was   not    “so    punitive       in     fact”      that   the       law   should   be
    considered punitive in nature and that the probationary period
    provided an additional civil disability in an effort to protect
    the public.        Id. at 124.
    In    Farrow,       this    court     rejected       a    similar     argument
    challenging as ex post facto the retroactive application of the
    1995 amendment to the NCFFA.                   In finding no violation of the Ex
    Post    Facto      Clause,    this       court     cited     O’Neal      as    controlling.
    Farrow,      
    364 F.3d at 555
    .        Additionally,           the    Farrow   court
    concluded     that    the     indefinite         ban   in    the   1995       amendment     was
    “rationally        connected       to    the    state’s      legitimate        interest      in
    protecting the public.”             
    Id.
    With respect to the 2004 amendment, recent decisions
    from the Court of Appeals of North Carolina (“CANC”) and the
    Supreme Court of North Carolina (“SCNC”) make clear that the
    8
    intent of the North Carolina legislature was to enact a civil
    disability to protect the public and that this disability is
    rationally related to that non-punitive intent.
    In 2007, the CANC rejected the claim that retroactive
    application     of    the    2004    amendment            to   the     NCFFA    was    ex    post
    facto.     Britt, 
    649 S.E.2d at 406-07
     (“Britt I”).                             Although the
    SCNC later reversed Britt I, it did so on alternate grounds,
    leaving intact the ex post facto analysis performed by the CANC.
    Britt, 681 S.E.2d at 322-23 (“Britt II”).                              In 2010, the SCNC
    explicitly rejected a claim that the 2004 amendment to the NCFFA
    was an unconstitutional ex post facto law.                             State v. Whitaker,
    
    700 S.E.2d 215
    ,       220    (N.C.     2010).             Specifically,      the       court
    concluded that the ban was not punitive in nature since its
    intent was to protect the public from future violent actions of
    those considered dangerous or who had demonstrated a heightened
    disregard for the law.             
    Id. at 218
    .            The SCNC noted support for
    its   conclusion      in    the    Heller       decision,        in    which     the   Supreme
    Court    of   the    United       States    described           bans    on     possession     of
    firearms by convicted felons as regulatory action.                               
    Id.
     at 218-
    19 (citing Heller, 
    554 U.S. at
    627 & n.26 (characterizing long-
    standing prohibitions such as the ban on possession of firearms
    by    convicted       felons       as      “presumptively              lawful     regulatory
    measures”)).         The SCNC also concluded that the 2004 amendment
    was     rationally     connected           to       the    non-punitive          purpose      of
    9
    protecting public safety, id. at 219, and was not excessive in
    light of that purpose.         Id.
    Taken together, then, O’Neal, Farrow, Britt I, Britt
    II, and Whitaker uphold as constitutional the proposition that
    the NCFFA, as amended in 2004, is not an unconstitutional ex
    post facto law.          The law may therefore be applied to Brady to
    retroactively      strip    him    of    his     previously       restored    right   to
    possess firearms without violating the Ex Post Facto Clause.
    B.
    Brady has not suggested in his appellate briefs that
    such a stripping of a restored right to possess firearms would
    not effectively revive a previously negated predicate conviction
    for purposes of §§ 922(g)(1) and 924(e), and we conclude that
    the 1980s convictions were available as predicate convictions
    for purposes of §§ 922(g)(1) and 924(e).                      See Melvin v. United
    States,   
    78 F.3d 327
    ,   330      (7th     Cir.    1996).      Accordingly,     we
    reject    Brady’s       argument     that      the      district     court    erred   in
    sentencing him as an armed career criminal under USSG § 4B1.4
    and 
    18 U.S.C. § 924
    (e).
    II.
    Brady also argues that the district court committed
    plain    error    in    sentencing       him     as     an   armed   career    criminal
    10
    because the indictment did not charge a violation of the ACCA
    and he did not admit to those facts necessary to justify an ACCA
    sentence.       As Brady correctly acknowledges, however, this claim
    is    foreclosed      by   controlling        Circuit         precedent.         See United
    States    v.    Thompson,       
    421 F.3d 278
    ,       284     n.4    (4th    Cir.   2005)
    (holding that an indictment need not reference or list the prior
    convictions used to enhance a sentence); United States v. Cheek,
    
    415 F.3d 349
    ,     352-54    (4th   Cir.           2005)    (holding       that   prior
    convictions      used      as   the   basis       for    an     armed   career     criminal
    sentence need not be charged in the indictment or proven beyond
    a reasonable doubt).
    III.
    Accordingly, we affirm the district court’s judgment.
    We    dispense    with     oral   argument        because        the    facts    and   legal
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
    11