Saturday, May 24, 2014

Civil Rights Restored

This is a short but interesting unpublished Tenth Circuit opinion -- laudable because tenacious defense work resulted in dismissal of the felon-in-possession conviction based on state restoration of civil rights, and interesting (to appellate wonks) because the Circuit certified a question to the New Mexico state supreme court.

Here's the entirety of the opinion,
In this appeal James Reese asks us to overturn his conviction for being a felon unlawfully in possession of firearms. See 18 U.S.C. § 922(g)(1). Overturned because someone (like himself) previously convicted of a felony may lawfully possess guns if he “has had civil rights restored.” 18 U.S.C. § 921(a)(20). To show that he has had his civil rights restored, a defendant in Mr. Reese’s shoes must prove that he enjoys the right to vote, serve on a jury, possess firearms under state law, and hold public office. United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994). From the outset of this appeal, everyone has acknowledged that Mr. Reese enjoys three of these four rights. The only question we have faced is whether Mr. Reese is entitled to hold public office under New Mexico state law. Given the uncertainty of state law on that question, we certified it to the state supreme court. 
That court recently returned an answer: at all points relevant to this case Mr. Reese has enjoyed the right to hold public office. See United States v. Reese, No. 33,950, 2014 WL 1716526, at (N.M. May 1, 2014). In light of this guidance, the government acknowledges that Mr. Reese’s federal firearms conviction is unsustainable. So it is we reverse Mr. Reese’s conviction and remand this matter to the district court with instructions to dismiss the 18 U.S.C. § 922(g) charge against him. The mandate shall issue with the entry of this order on the docket. 
The rule on certification is U.S.Ct. of App. 10th Cir. Rule 27.1, and for more on restoration of civil rights as a defense to a 922(g)(1) felon-in-possession charge under Kansas law, see US v. Baker 508 F.3d 1321 (10th Cir. 2007).

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