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United States v. Huss

filed: October 25, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES ALLAN HUSS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon. D.C. No. CR-91-402-MFA. Malcolm F. Marsh, District Judge, Presiding.

Before: Jerome Farris, Warren J. Ferguson, and David R. Thompson, Circuit Judges. Opinion by Judge Ferguson.

Author: Ferguson

FERGUSON, Circuit Judge:

James Allan Huss (Huss) was convicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Huss was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which imposes a mandatory minimum sentence of fifteen years on those convicted under § 922(g)(1) who have at least three prior violent or drug-related felony convictions. Huss argues on appeal that his conviction cannot stand because, under the Oregon law in effect at the time of his conviction for the predicate felony, he was not prohibited from carrying a long gun, the weapon he was charged with possessing under § 922(g)(1). Huss therefore argues that his conviction is contrary to Ninth Circuit case law interpreting 18 U.S.C. § 921(a)(20) and violates the ex post facto clause of the Constitution.

Huss also appeals his sentence under § 924(e), arguing that two of his prior convictions are not proper predicate convictions. In addition, Huss argues that the district court should have exercised its discretion to depart downward based on the time Huss had already spent in state custody. Huss' final contention on appeal is that the district court erred in denying his motion to suppress evidence.

We affirm the district court on all issues except its sentencing of Huss under § 924(e). We find that two of Huss' prior convictions were not proper predicate convictions, and therefore we vacate Huss' sentence under § 924(e) and remand for resentencing.

BACKGROUND

Huss' residence was searched pursuant to a warrant on July 17, 1991, and law enforcement officers found four long guns, including three rifles and one shotgun. Huss was subsequently indicted by a federal grand jury for being an ex-felon in possession of a firearm. 18 U.S.C. § 922 (g)(1). The predicate offense for Huss' indictment under § 922(g)(1) was a 1987 Oregon conviction for burglary I.

On February 27, 1991, the government filed a Notice of Enhanced Punishment. The Notice alleged that Huss' three Oregon convictions for burglary, two in 1976 and one in 1987, made him eligible for enhancement under 18 U.S.C. § 924(e)(1).

Huss filed a motion to suppress, which alleged that the affidavit in support of the search warrant did not provide probable cause for the issuance of the warrant. Specifically, Huss argued that the affidavit did not link Huss to the particular room in the boarding house that was named in the warrant and searched by the officers. The district court denied the motion, finding that the search warrant satisfied the probable cause requirement because it stated with particularity the room to be searched.

Huss also filed a motion to dismiss, arguing that his 1987 burglary conviction did not qualify as a predicate for a conviction under § 922(g)(1) because Oregon law in effect at the time of his conviction restored his civil rights, including his rights to possess long guns. Thus, Huss asserted, his conviction could not count as a predicate for § 922(g)(1) because 18 U.S.C. § 921(a)(20) excludes convictions for which a jurisdiction has restored civil rights to a felon unless the right to carry firearms is still restricted by that jurisdiction.*fn1 Huss also argued that a change in Oregon law subsequent to his offense that restricted felons from carrying all firearms, although occurring prior to his release from his sentence, could not be applied retroactively, and that retroactive application would violate the ex post facto clause of the Constitution. The district court denied Huss' motion to dismiss the indictment.

At sentencing, Huss argued that he did not qualify for an enhanced sentence under § 924(e) because his two 1976 Oregon burglary convictions did not count as predicate convictions since his civil rights, including his right to carry long guns, had been restored when he was paroled on both offenses in 1981. Huss also argued that the two burglary convictions were not valid predicate felonies because they were only for aiding and abetting, and that the 1976 burglary I conviction was unconstitutionally obtained. Finally, Huss requested a downward departure based on the time he had already spent in state custody. The court denied all of Huss' claims and found that it had no authority to depart downward to give Huss credit for time spent in state custody. Huss entered a conditional guilty plea, and now appeals both his conviction under § 922(g)(1) and his sentence under § 924(e).

I.

Huss argues that his 1987 Oregon conviction for burglary is not a predicate offense under ยง 922(g)(1) because his civil rights were restored when he was discharged from his sentence in 1990. Huss bases his arguments on statutory and constitutional interpretation. These are legal questions which we ...


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