[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1800

UNITED STATES,

Appellee,

v.

THOMAS E. WILSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

Lori H. Levinson and Cain, Hibbard, Myers & Cook, P.C. on brief for appellant. Donald K. Stern, United States Attorney, Ariane D. Vuono, Assistant U.S. Attorney, on Motion for Summary Disposition for appellee.

March 4, 1999

Per Curiam. Thomas E. Wilson appeals from an enhanced sentence that was imposed in 1994, pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(e), following his guilty plea to being a felon in possession of a firearm, in violation of 922(g)(1). The district court, having failed to advise Wilson of his right to appeal at sentencing, later granted (in part) Wilson's 2255 motion and reinstated his right to appeal his sentence. This appeal represents Wilson's exercise of that reinstated right. Wilson challenges his conviction and enhanced sentence on the ground that his prior Massachusetts convictions did not qualify as predicate offenses because his civil rights had been restored with respect to those convictions. He relies upon 18 U.S.C. 921(a)(20), which provides, in relevant part, that a conviction "shall not be considered" as a predicate offense where a person . . . has had civil rights restored . . . , unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.

The parties agree that Massachusetts law has restored Wilson's civil rights. The focus of this appeal is the interpretation to be given to the "unless clause" of 921(a)(20). "Massachusetts materially restricts an ex-felon's right to carry and traffic in firearms regardless of the passage of time." United States v. Alston,

(1st Cir. 1997); see United States v. Estrella,

(1st -2- Cir. 1997)(listing Massachusetts statutory restrictions). Despite the absence of a total prohibition of the right to possess firearms, Massachusetts' "patchwork of restrictions" triggers the "unless clause" such that 921(a)(20) does not protect the ex-felon. Estrella,

(holding that Estrella was not excepted from the felon-in-possession statute). The holding in Estrella has also been applied to affirm sentencing enhancements under 924(e). See United States v. Blodgett,

(1st Cir. 1997); Alston,

. The Supreme Court recently resolved a division among various circuits over the interpretation to be given to the "unless clause" and endorsed the approach taken by this circuit in

See Caron v. United States,

(1998). The court interpreted the "unless clause" to apply when the state forbids one or more types of firearms, adopting the following reasoning:

a state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all. This is so even if the guns the offender possessed were ones the State permitted him to have. The State has singled out the offender as more dangerous than law-abiding citizens, and federal law uses this determination to impose its own broader stricture.

. The Court affirmed this court's judgment ordering that Caron be sentenced as an armed career criminal under 924(e).

. Wilson's argument that the Supreme Court's Carondecision does not apply to him because it had not yet been decided when he became aware of his right to appeal in August 1997, is unavailing. The Supreme Court's Caron decision affirmed a judgment of this court applying the approach taken in

Therefore, it makes no difference to the outcome of this appeal whether we apply the Supreme Court's Caron decision or (as Wilson urges us to do) the law of this circuit as it existed in August 1997. The district court did not err in treating the prior Massachusetts convictions as predicate offenses for purposes of 922(g)(1) and 924(e). Nor did Wilson receive ineffective assistance of counsel because his attorney did not challenge the use of the predicate offenses. The government's motion for summary affirmance is granted. See Loc.R. 27.1.