Tuesday, August 08, 2006

Court Takes Sides on Circuit Split Regarding Restoration of Gun Rights for Felon-in-Possession Predicates

United States v. Chenowith, No. 05-20636 (5th Cir. Aug. 8, 2006)

In this felon-in-possession case the court holds that Chenowith's 1974 Ohio manslaughter conviction could not serve as a predicate felony because Chenowith's rights to vote, hold public office, and serve on juries had been restored not by operation of law, but by a certificate granted by the Ohio Adult Parole Authority in 1978.

In so doing, the court took sides on a circuit split involving the following issue: whether, for purposes of determining whether a person was "expressly deprived of the right to possess a firearm by some provision of the restoration law or procedure of the state of the underlying conviction[,]" the court "look[s] only to the certificate of restoration to decide if it expressly limits [a person's] rights with regard to firearms, or whether we look to all of [the state's] statutory law to decide if any statute prohibits convicted felons from possessing firearms." Slip op. at 6-7. In this case, the certificate that Chenowith received from the Parole Authority contained no such limitation, but Ohio law bars those who have "been convicted of any felony offense of violence" from acquiring or possessing firearms. Slip op. at 7 (quoting Ohio Rev. Code Ann. § 2923.13).

The court sided with the D.C., Seventh, and Ninth Circuits in holding that under 18 U.S.C. § 921(a)(20) a court "'may look no further than the source of the restoration of . . . civil rights to see whether . . . gun-related rights have been restricted.'" Slip op. at 10 (quoting United States v. Bost, 87 F.3d 1333, 1336 (D.C. Cir. 1996)). Here, because Chenowith's rights had been restored by a certificate, rather than by operation of law, and because the certificate "does not expressly prohibit his possessing firearms," the Ohio conviction could not serve as a predicate felony for the felon-in-possession charge. Slip op. at 12.



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