Misdemeanor counted as “violent felony”

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Because civil rights aren’t lost upon conviction of a Wisconsin misdemeanor, they can’t be “restored,” and those misdemeanor convictions must be counted as prior “violent felonies” under the Armed Career Criminal Act (ACCA), if the maximum penalty is three years.

The result may be “anomalous,” because more serious felony convictions can be exempted from the statute if civil rights are later restored to the defendant, but the result is not “absurd.”

In so holding, a unanimous U.S. Supreme Court decision by Justice Ruth Bader Ginsburg issued Dec. 4 affirms holdings of U.S. District Court Judge John C. Shabaz and the Seventh Circuit.

A Janesville man, James D. Logan pleaded guilty in the Western District of Wisconsin to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1).

The maximum penalty is generally 10 years. However, if a defendant has three prior convictions for a “violent felony,” the minimum sentence is 15 years.

Logan had previous convictions in Wisconsin state court for misdemeanor batteries. Although misdemeanors, they counted as violent felonies under the ACCA, because Wisconsin’s repeater statute provided a maximum penalty of three years at the time.

18 U.S.C. 921(a)(10) exempts from the statute, convictions which have been expunged, or those for which a defendant has been pardoned or had his civil rights restored.

Logan argued that his Wisconsin misdemeanor convictions did not qualify as ACCA predicate offenses because they caused no loss of his civil rights. Rights retained, he argued, are functionally equivalent to rights revoked but later restored.

However, the district court, the Seventh Circuit, and now, the U.S. Supreme Court, disagreed.

The court concluded that an offender whose civil rights have been neither diminished nor returned has not had them “restored” under the plain meaning of the word.

Logan argued that the plain meaning interpretation is absurd, because, unless retention of rights is treated as equivalent to restoration of rights, less serious offenders are subject to more heightened punishment than more serious offenders.

The court recognized the anomalies noted by Logan. However, the court found nothing “absurd” in its interpretation, because Logan’s interpretation would create anomalies as well. For example, the State of Maine does not deprive any offenders of their civil rights, even for first-degree murder. Thus, under Logan’s interpretation, first-degree murders committed in Maine would not be counted under the ACCA, while much less serious crimes committed elsewhere would.

Citing the Second Circuit’s opinion in McGrath v. U.S., 60 F.3d 1005 (7th Cir. 1995), the court dismissed anomalies between states as “inevitable.”

The court also relied on the legislative history. In Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), the court had held that a state’s expungement of a conviction did not nullify the conviction for purposes of the felon in possession statute. It did so in part to ensure greater uniformity and avoid a patchwork from state to state.

However, Congress responded three years later by passing the statute at issue, explicitly making the effect of prior convictions dependent on whether states have expunged them or restored civil rights to the defendant. Thus, to accept Logan’s argument would undermine Congressional intent.

In addition, Logan’s interpretation would effectively exclude all misdemeanors not resulting in a loss of civil rights from the definition of “violent felony,” even though Congress expressly included misdemeanors in the definition — thus creating another anomaly.

The court concluded, “Logan complains of an anomalous result. Yet the solution he proposes would also produce anomalies. Having no warrant to stray from sec. 921(a)(20)’s text, we hold that the words ‘civil rights restored’ do not cover the case of an offender who lost no civil rights.”

Accordingly, the court affirmed.

Analysis

Despite the court’s holding, defense attorneys should continue to object to the use of old misdemeanors as “violent felonies” under the ACCA, citing footnote 2 of the court’s opinion.

In the footnote, the court noted that Logan’s battery convictions occurred when a misdemeanor battery in Wisconsin, if committed as a repeat offender, could be punished with three years in prison (without the repeater provisions, the maximum is nine months).

Since 2002, the maximum for misdemeanors as a repeater is only two years, and thus misdemeanor batteries no longer qualify as violent felonies under the ACCA, even if the defendant is a habitual offender.

However, a case currently pending in the Supreme Court could result in all misdemeanors being excluded from the ACCA, if the only reason they are counted is the defendant’s status as a recidivist.

The court expressed no opinion on the merits of the argument, but noted it has granted certiorari on this very issue in U.S. v. Rodriguez, 464 F.3d 1072 (9th Cir. 2006), cert. granted, 551 U.S. — (2007).

The Ninth Circuit held that a defendant was not subject to the 15-year minimum in the ACCA, because his prior convictions only fell within the definition of “violent felony,” because of the State of Washington’s recidivist statute.

If the Supreme Court affirms the Ninth Circuit, then defendants in the position of Logan only face a maximum of 10 years, rather than a minimum of 15.

Unfortunately for defendants in Logan’s position, one passage in the court’s opinion in the case at bar suggests that it will reverse the Ninth Circuit.

Discussing the legislative history, the court wrote, “Congress framed sec. 921(a)(20) to serve two purposes. It sought to qualify as ACCA predicate offenses violent crimes that a State classifies as misdemeanors yet punishes by a substantial term of imprisonment, i.e., more than two years. Congress also sought to defer to a State’s dispensation relieving an offender from disabling effects of a conviction. Had Congress included a retention-of-rights exemption, however, the very misdemeanors it meant to cover would escape ACCA’s reach (cites omitted).”

This reasoning, if applied to Rodriguez’ case, effectively requires reversal of the Ninth Circuit — the court has explicitly found that Congress intended to include misdemeanors, if the state punishes them as felonies.