US v. Jeffrey Allen Brady

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00368-TDS-1 Copies to all parties and the district court/agency. [998630563].. [10-5269]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5269

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY ALLEN BRADY,
Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
Thomas David
Schroeder, District Judge. (1:09-cr-00368-TDS-1)

Submitted:

June 21, 2011

Decided:

July 13, 2011

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
Elizabeth A. Flagg, Research & Writing Attorney, Winston-Salem,
North Carolina, for Appellant.
Ripley Rand, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jeffrey

Allen

Brady

pled

guilty

without

a

plea

agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006).
The district court concluded that Brady had at least three prior
“violent

felony”

or

“serious

drug

offense”

convictions

(“the

1980s convictions”) * and that Brady was thus an armed career
criminal under the Armed Career Criminal Act (“ACCA”), see 18
U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.4

(2009).

imprisonment,
ACCA.

The

the

court

statutory

sentenced
minimum

Brady

sentence

to

180

required

months’
by

the

Brady challenges this sentence on appeal, arguing that

the district court erred in sentencing him as an armed career
criminal because the 1980s convictions do not qualify as ACCA
predicates.

Brady also argues that the district court committed

plain

in

error

sentencing

him

as

an

armed

career

criminal

because the indictment did not charge a violation of the ACCA
and he did not admit to those facts necessary to justify an ACCA

*

Specifically, Brady had the following prior convictions at
the time of his arrest in 2008: (1) a January 1984 conviction
for
selling
and
delivering
methylenedioxyamphetamine;
(2)
January 1984 convictions for selling and delivering LSD; and (3)
an August 1986 conviction for assault with a deadly weapon
inflicting serious injury.

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sentence.

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We disagree, and, for the reasons that follow, we

affirm.

I.
Section

4B1.4

of

the

Sentencing

Guidelines

provides

for the imposition of an enhanced sentence on any person who is
an armed career criminal, as defined by 18 U.S.C. § 924(e)(1).
USSG § 4B1.4(a) & cmt. n.1.

Section 924(e)(1) of Title 18 is

applicable to any person who violates 18 U.S.C. § 922(g) and has
three

or

more

previous

offense”

convictions.

predicate

convictions

As
must

[18 U.S.C.] § 922(g)(1).”
403 (4th Cir. 1993).

“violent

felony”

this
be

court

“of

the

or

“serious

drug

has

explained,

such

type

referred

to

in

United States v. Clark, 993 F.2d 402,

Section 922(g)(1) of Title 18 applies to

convictions for crimes “punishable by imprisonment for a term
exceeding

one

year.”

However,

as

this

court

recognized

in

United States v. O’Neal, 180 F.3d 115, 119 (4th Cir. 1999),
there is “an important exception.”
18

excludes

from

qualification

Section 921(a)(20) of Title
as

a

crime

“punishable

imprisonment for a term exceeding one year”:
Any conviction which has been expunged, or set aside
or for which a person has been pardoned or has had
civil rights restored shall not be considered a
conviction for purposes of this chapter, unless such
pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship,
transport, possess, or receive firearms.
3

by

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18 U.S.C. § 921(a)(20)(2006).
In

determining

whether

state

law

provides

that

a

defendant’s civil rights have been restored, we “look to the
whole of state law.”
marks omitted).

Clark, 993 F.2d at 403 (internal quotation

“This inquiry requires an analysis of whether

and to what extent [North Carolina] restores the civil rights of
ex-felons.”

United States v. Essick, 935 F.2d 28, 30 (4th Cir.

1991) (internal quotation marks omitted).
North Carolina law restores to convicted felons some
civil

rights

upon

release

Stat. § 13-1(1) (2009).

from

imprisonment.

See

N.C.

Gen.

Brady was released from prison after

serving imprisonment terms for the 1980s convictions on March
24,

1990.

Upon

his

release,

Brady

regained

his

“rights

of

citizenship,” including his rights to vote, hold office, and
serve

on

a

jury.

See

N.C.

Gen.

Stat.

§ 13-1(1);

United

States v. McLean, 904 F.2d 216, 217 n.1 (4th Cir. 1990).
Brady, however, did not immediately regain the right
to possess a firearm at the time of his release.

At that time,

North Carolina’s Felony Firearms Act (“NCFFA”), N.C. Gen. Stat.
§ 14-415.1(a), provided that convicted felons could possess long
guns anywhere and firearms in their home or lawful place of
business and regained the right to possess all firearms five
years after release from prison.

4

See O’Neal, 180 F.3d at 120-

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21.

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Effective

Date Filed: 07/13/2011

December

1,

1995,

Page: 5 of 11

North

Carolina

amended

the

NCFFA to replace the five-year ban with a permanent ban on a
convicted felon’s right to possess certain firearms; the 1995
amendment, however, did not alter the provision permitting a
convicted felon to possess a long gun or a firearm in his home
or

lawful

place

of

business.

See

364 F.3d 551, 554 (4th Cir. 2004).

United

States

v.

Farrow,

Effective December 1, 2004,

North Carolina again amended the NCFFA, this time prohibiting
convicted felons from possessing any and all firearms.

N.C.

Gen. Stat. § 14-415.1(a) (2004).
In

Brady’s

view,

the

district

court

erred

in

sentencing him as an armed career criminal because, five years
after he was discharged from the custody of the North Carolina
Department of Correction, his civil rights were restored as to
each of the 1980s convictions and, as a result, such convictions
do not qualify as ACCA predicates.

Although acknowledging that

North Carolina amended the NCFFA in 2004 to prohibit convicted
felons from possessing firearms under any circumstances, Brady
contends

that

fundamental

the

right

2004
to

amendment
possess

a

cannot
firearm

deprive
in

his

him

of

his

residence,

see McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010);
District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008),
without violating the Ex Post Facto Clause of the Constitution.

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A.
Brady correctly notes that, by operation of law, his
right to possess any and all firearms was fully restored to him
under North Carolina law on March 24, 1995, five years after his
release from prison after he completed the prison sentences for
See O’Neal, 180 F.3d at 121 (applying

the 1980s convictions.

the law in effect at the time of the defendant’s discharge from
prison

to

determine

firearms).

the

However,

right
the

of

2004

the

defendant

amendment

to

to

possess

the

NCFFA

retroactively stripped Brady of this previously restored right.
See

N.C.

Gen.

Stat.

§

14-415.1(a)

(2004);

Britt

v.

State,

649 S.E.2d 402, 406 (N.C. Ct. App. 2007), rev’d on other grounds
by Britt v. State, 681 S.E.2d 320, 323 (N.C. 2009).
Whether the 2004 amendment to the NCFFA is ex post
facto as applied to Brady is a question of law we review de
novo.

Farrow, 364 F.3d at 554.

Constitution

prohibits

laws

The Ex Post Facto Clause of the
that

“retroactively

alter

the

definition of crimes or increase the punishment for criminal
acts.”

Collins v. Youngblood, 497 U.S. 37, 43 (1990).

Supreme

Court

has

defined

the

latter

part

of

this

rule

The
as

prohibiting laws that retroactively “increase[] the penalty by
which a crime is punishable.”

Ca. Dep’t of Corr. v. Morales,

514 U.S. 499, 506 n.3 (1995).

In O’Neal, this court observed

that:
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“Punishment” and “penalty” are constitutional terms of
art, defined in contra distinction to laws that are
“civil”
or
involve
“regulation
of
a
present
situation.”
While laws that retroactively increase
“punishment” or impose a “penalty” violate the Ex Post
Facto Clause, retroactive civil or regulatory ones do
not.
O’Neal, 180 F.3d at 121-22 (internal citations omitted).
In determining whether a law is punitive or regulatory
in nature, courts apply a two-part test.

A court should first

ask “whether the legislature's intent, as discerned from the
structure

and

legislative

design

intent,

of
was

the
to

statute
impose

enact a civil or regulatory law.”

a

along

with

punishment

Id. at 122.

any
or

declared
merely

to

Second, a court

should determine whether the effect of the law is “so punitive
in fact that the law may not legitimately be viewed as civil in
nature.”

Id. (internal quotation marks omitted).

The analysis

under this second part of the test “focuses upon whether the
sanction or disability that the law imposes may rationally be
connected to the legislature’s non-punitive intent, or rather
appears

excessive

in

light

of

that

intent.”

Id.

(internal

quotation marks omitted).
In

O’Neal,

this

court

rejected

the

argument

that

retroactive application of the former five-year ban on handgun
possession codified in the version of the NCFFA in effect in
1983 was punitive and therefore unconstitutional under the Ex
Post Facto Clause.

With regard to the first prong of the ex
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post facto analysis, the court relied on several North Carolina
decisions rejecting ex post facto challenges to earlier versions
of section 14-415.1.

O’Neal, 180 F.3d at 123.

In view of these

decisions, this court concluded that “North Carolina has made
clear that its intent was to enact a civil disability to protect
the public from those, felons, whose possession of guns there
was the most reason to fear, not to impose any punishment or
penalty on felons.”

Id.

In addressing the second part of the

analysis, the court concluded that the effect of the five-year
ban

was

not

“so

punitive

in

fact”

that

the

law

should

be

considered punitive in nature and that the probationary period
provided an additional civil disability in an effort to protect
the public.
In

Id. at 124.
Farrow,

this

court

rejected

a

similar

argument

challenging as ex post facto the retroactive application of the
1995 amendment to the NCFFA.
Post

Facto

Farrow,

364

concluded

Clause,
F.3d

that

“rationally

the

this
at

In finding no violation of the Ex

court

555.

indefinite

connected

protecting the public.”

to

the

cited

O’Neal

Additionally,
ban

in

state’s

the

as

the
1995

legitimate

controlling.
Farrow

court

amendment
interest

was
in

Id.

With respect to the 2004 amendment, recent decisions
from the Court of Appeals of North Carolina (“CANC”) and the
Supreme Court of North Carolina (“SCNC”) make clear that the
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intent of the North Carolina legislature was to enact a civil
disability to protect the public and that this disability is
rationally related to that non-punitive intent.
In 2007, the CANC rejected the claim that retroactive
application
facto.

of

the

2004

amendment

to

the

NCFFA

was

Britt, 649 S.E.2d at 406-07 (“Britt I”).

ex

post

Although the

SCNC later reversed Britt I, it did so on alternate grounds,
leaving intact the ex post facto analysis performed by the CANC.
Britt, 681 S.E.2d at 322-23 (“Britt II”).

In 2010, the SCNC

explicitly rejected a claim that the 2004 amendment to the NCFFA
was an unconstitutional ex post facto law.
700

S.E.2d

215,

220

(N.C.

2010).

State v. Whitaker,

Specifically,

the

court

concluded that the ban was not punitive in nature since its
intent was to protect the public from future violent actions of
those considered dangerous or who had demonstrated a heightened
disregard for the law.

Id. at 218.

its

Heller

conclusion

Court

of

the

in

the

United

States

The SCNC noted support for

decision,
described

in
bans

which
on

the

Supreme

possession

firearms by convicted felons as regulatory action.

of

Id. at 218-

19 (citing Heller, 554 U.S. at 627 & n.26 (characterizing longstanding prohibitions such as the ban on possession of firearms
by

convicted

measures”)).
was

felons

as

“presumptively

lawful

regulatory

The SCNC also concluded that the 2004 amendment

rationally

connected

to

the
9

non-punitive

purpose

of

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protecting public safety, id. at 219, and was not excessive in
light of that purpose.

Id.

Taken together, then, O’Neal, Farrow, Britt I, Britt
II, and Whitaker uphold as constitutional the proposition that
the NCFFA, as amended in 2004, is not an unconstitutional ex
post facto law.
retroactively

The law may therefore be applied to Brady to

strip

him

of

his

previously

restored

right

to

possess firearms without violating the Ex Post Facto Clause.

B.
Brady has not suggested in his appellate briefs that
such a stripping of a restored right to possess firearms would
not effectively revive a previously negated predicate conviction
for purposes of §§ 922(g)(1) and 924(e), and we conclude that
the 1980s convictions were available as predicate convictions
for purposes of §§ 922(g)(1) and 924(e).
States,
reject

78

F.3d

Brady’s

327,

330

argument

(7th
that

Cir.
the

See Melvin v. United

1996).
district

Accordingly,

we

court

in

erred

sentencing him as an armed career criminal under USSG § 4B1.4
and 18 U.S.C. § 924(e).

II.
Brady also argues that the district court committed
plain

error

in

sentencing

him
10

as

an

armed

career

criminal

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because the indictment did not charge a violation of the ACCA
and he did not admit to those facts necessary to justify an ACCA
sentence.
is

As Brady correctly acknowledges, however, this claim

foreclosed

States

v.

by

controlling

Thompson,

421

Circuit

F.3d

278,

precedent.

284

n.4

(4th

See United
Cir.

2005)

(holding that an indictment need not reference or list the prior
convictions used to enhance a sentence); United States v. Cheek,
415

F.3d

349,

convictions

352-54

used

as

(4th

the

Cir.

basis

for

2005)
an

(holding
armed

that

career

prior

criminal

sentence need not be charged in the indictment or proven beyond
a reasonable doubt).

III.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

11