United States v. Gibson
Opinion
Grover Carroll Gibson appeals the district court’s denial of his 28 U.S.C. § 2255 (2000) motion. The district court granted a certificate of appealability. On appeal, Gibson argues that he received ineffective assistance of counsel when his attorney failed to object to his offense level adjustment under U.S. Sentencing Guidelines Manual § 2K2.1(b)(l)(B) (1998) (adjustment based on the number of firearms involved in the offense). Specifically, Gibson asserts that, because he was permitted under North Carolina law to possess firearms in his home, see N.C. GemStat. § 14-415.1(a) (Supp. 1998), the firearms recovered from his home could not be used to calculate the number of firearms involved in his offense. See USSG § 2K2.1, comment. (n.9) (“For purposes of calculating the number of firearms under subsection (b)(1), count only those firearms that were ... unlawfully possessed.”).
However, we find that any objection by counsel would have been futile. Federal law, 18 U.S.C. § 921(a)(20) (2000), does prevent federal prosecution for a felon in possession of a firearm when a state has restored a person’s civil rights on the predicate felony. But when, as here, a state restricts a felon from possessing firearms in certain situations (e.g., outside of his home or business), 18 U.S.C. § 922(g) prohibits him from possessing any guns at all, even those permitted under state law. See Caron v. United States, 524 U.S. 308, 315-17, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998). Thus, Gibson has failed to make a prima facie showing that he received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We deny Gibson’s motions for summary judgment and to appoint counsel. Accordingly, we affirm the order of the district court. 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
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Grover Carroll GIBSON, Defendant-Appellant
- Status
- Unpublished