Tuesday, July 22, 2014

Not A Felon, Part II

  • From guest blogger AFD David Freund,


          After U.S. v. Brooks, a Kansas “felony” conviction is only a felony for purposes of the federal felon-in-possession statute and the Armed Career Criminal Act if the Kansas guidelines sentence could be greater than 12 months. But what about prior Kansas convictions where a sentence of more than one year could have been imposed?
           A  conviction for which civil rights have been restored does not count as a predicate felony for either the felon in possession or Armed Career Criminal statutes. 18 U.S.C. 921(a)(20).“Civil rights”, as used in 921(a)(20), are the right to vote, hold office, and serve on a jury. Logan v U.S., 552 US 23, 28 (2007).  In Kansas, these disabilities commence upon conviction and continue until the sentence is satisfied. KSA 21-6613. For persons committed to serve prison sentence, civil rights, except for the right to possess firearms, are restored upon completion of the term of imprisonment, including any period of postrelease supervision or parole. KSA 22-3722
          A state conviction for which an offender has obtained a pardon or expungement is not a felony for purposes of section 921(a)(20) unless the pardon, expungement, or restoration of civil rights expressly provides the person may not ship, transport, possess or receive firearms. Where state law has unconditionally restored a person’s civil rights, including the right to possess firearms after a felony conviction, the federal disability imposed by such a conviction under 922(g)(1) is removed. US v. Jones, 390 F.3d 1291 (10th Cir 2004); U.S. v. Haynes, 961 F2d 50 (4th Cir 1992).
           This restoration must be unconditional. A restriction on the right to possess any type of firearm prevents restoration of firearms rights under federal law. Caron v. US, 524 US 308 (1998).
        The law of the jurisdiction where the conviction occurred governs whether rights are restored. 18 U.S.C. 921(a)(20). K.S.A. 21-6304 sets the applicable period after a felony conviction during which a person is prohibited from possessing a firearm. Depending on the nature of the offense, and whether a firearm was possessed during the offense, the ban is lifetime, ten years, or five years. 
         To meet the 921(a)(20) civil rights restored exclusion for purposes of 922(g)(1) or 924(e), the right to possess firearms must have actually been restored for the conviction(s) at issue. A subsequent Kansas felony conviction within the statutory period of prohibition (even if it is not subject to a term of imprisonment greater than one year) would prevent the restoration of firearms rights, and thus the restoration of civil rights, upon expiration of the otherwise applicable five or ten year ban. US v. Burns, 934 F.2d 1157 (10th Cir. 1991); US v. Baker, 508 F.3d 1321 (10th Cir. 2007). 

More questions or information needed, contact David at David_Freund@fd.org.

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