United States v. Jones , 253 F. App'x 550 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0777n.06
Filed: November 5, 2007
No. 06-6376
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Richard Jones, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: KEITH and ROGERS, Circuit Judges; ALDRICH, District Judge.*
ROGERS, Circuit Judge. Richard Jones was convicted under 18 U.S.C. § 922(g)(1) of
unlawful possession of a firearm by a felon, the predicate conviction being his 1971 Georgia court
conviction for aggravated assault and murder. After relocating to Tennessee following his Georgia
conviction, Jones had obtained a Tennessee court restoration of rights. The district court rejected
his motion to dismiss the federal felon-in-possession charge based on the Tennessee order, and Jones
pled guilty to the § 922 charge. He was convicted and sentenced. Jones argues on appeal that: (1)
Tennessee’s restoration of his “full rights of citizenship” barred his prosecution under § 922(g)(1);
(2) his 1971 conviction should not have been considered in determining the base offense level of his
*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 06-6376
United States of America v. Richard Jones
sentence; and (3) his prosecution and conviction under § 922 violate the Ex Post Facto Clause.
Because under the federal felon-in-possession statute we must look to Georgia law rather than
Tennessee law regarding restoration of rights, and because Jones’s other arguments are without
merit, we affirm.
On March 3, 1971, Richard Jones was convicted of aggravated assault and murder in
Jackson, Georgia. His sentences for those convictions expired on January 21, 1991. The
Government asserts—and Jones does not dispute—that on January 4, 1991, the Georgia State Board
of Pardons and Parole restored Jones’s civil and political rights, expressly excluding the right to
“receive, possess, or transport in commerce a firearm.” In the meantime, Jones moved to Tennessee,
where his “full rights of citizenship” were restored on November 23, 1994, by a state circuit court
in Hamilton County, Tennessee.
On February 2, 2004, Jones was arrested in Chattanooga, Tennessee, on domestic violence
charges. During a search incident to his arrest, the Chattanooga Police found 10 firearms at the
residence. Jones admitted owning the guns, which included 4 or 5 rifles, 5 pistols, and 1 shotgun.
All of the firearms were manufactured outside of Tennessee and had previously been shipped in
interstate commerce.
On November 1, 2005, Jones was indicted by a federal grand jury for violation of 18 U.S.C.
§ 922(g)(1), which makes it unlawful for any person “who has been convicted . . . of a crime
punishable by imprisonment for a term exceeding one year” to possess a firearm. 18 U.S.C.
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United States of America v. Richard Jones
§ 922(g)(1) (2000). Jones filed a motion to dismiss based on the Tennessee restoration of rights,
which motion the district court denied. Jones entered a guilty plea, reserving the right to appeal the
district court’s ruling on his motion to dismiss. He was sentenced to 18 months in prison. The
district court determined that, because Jones was a “prohibited person” at the time of his 2004
offense, the base level for his sentence was 14 under the federal Sentencing Guidelines. Four levels
were added because the offense involved 10 firearms, and three levels were removed because Jones
accepted responsibility, resulting in a total level of 15. Jones now appeals his conviction and
sentence.
Jones argues on appeal that his Tennessee restoration of rights precludes his federal
prosecution for felon-in-possession. However, the law is clear that Jones’s rights must be restored
under Georgia law for this purpose.
Georgia law, rather than Tennessee law, determines whether Jones’s 1971 conviction
constitutes a predicate offense under 18 U.S.C. § 922(g)(1). Chapter 28 of the United States Code
makes it unlawful for any person “who has been convicted . . . of a crime punishable by
imprisonment for a term exceeding one year” to
ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(1) (2000). In defining the phrase “crime punishable by imprisonment for a term
exceeding one year,” Congress provided:
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No. 06-6376
United States of America v. Richard Jones
What constitutes a conviction of such a crime shall be determined in accordance with
the law of the jurisdiction in which the proceedings were held. Any conviction which
has been expunged, or set aside or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction for purposes of this chapter,
unless such pardon, expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20) (emphasis added). In other words, this exemption clause provides that a
conviction for which a person has had civil rights restored is not considered a predicate conviction
under § 922(g)(1), “unless” the restoration “expressly provides that the person may not . . .
possess . . . firearms.”
The Supreme Court in Beecham v. United States squarely held that, under this provision, the
law of the jurisdiction in which proceedings were held applies not only to what is a conviction, but
also to the effect of post-conviction events under the statute. 511 U.S. 368, 372 (1994). The Court
expressly rejected a contention that the applicable law was instead the state law of the place of later
weapon possession. Id.; see also United States v. Lang, 46 F. App’x 816, 818 (6th Cir. 2002)
(unpublished) (applying the Beecham rule).
Jones’s argument based on Tennessee law is therefore unavailing, and he has neither claimed
nor set forth evidence that his Georgia restoration contained no express firearms limitation. Absent
such a contention regarding Georgia law, Jones’s 2004 prosecution under § 922(g)(1) for possession
of firearms was proper. See United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994), which held
that it is up to the felon-in-possession defendant to challenge the admissibility of a prior conviction.
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United States of America v. Richard Jones
It was also proper for the district court to consider Jones’s 1971 conviction in calculating his
sentence under the Sentencing Guidelines. The Guidelines instruct the court to apply a base offense
level of 14 if the defendant “was a prohibited person at the time the defendant committed the instant
offense.” U.S.S.G. § 2K2.1(a)(6)(A). “Prohibited person” is defined in Application Note 3 to mean
“any person described in 18 U.S.C. 922(g) or 922(n).” Section 922(g) lists certain categories of
individuals who are prohibited from, among other things, receiving firearms that have been
transported in interstate commerce. 18 U.S.C. § 922(g). For the reasons stated above, Jones is
properly considered to be one of the persons prohibited by § 922(g) from possessing such firearms.
Because he is a “prohibited person” under § 922(g), the district court properly assigned him a base
offense level of 14 under U.S.S.G. § 2K2.1(a)(6)(A).
Finally, contrary to Jones’s argument, his prosecution under § 922(g)(1) does not violate the
Ex Post Facto Clause. The prohibited conduct—his possession of a firearm—occurred after the
enactment of § 922. See, e.g., United States v. Haire, 89 F. App’x 551, 555 (6th Cir. 2004)
(unpublished); United States v. Pfeifer, 371 F.3d 430, 436-37 (8th Cir. 2004); United States v.
Hemmings, 258 F.3d 587, 594 (7th Cir. 2001); United States v. Mitchell, 209 F.3d 319, 322-23 (4th
Cir. 2000); United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994).
For the foregoing reasons, we affirm Jones’s conviction and sentence.
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