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United States v. Bullock

December 17, 2008

UNITED STATES OF AMERICA, APPELLEE,
v.
WILLIAM BULLOCK, JR., DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

Defendant-Appellant William Bullock, Jr. appeals from a judgment of conviction entered in the United States District Court for the Northern District of New York (McAvoy, J.) on July 13, 2007. He argues principally that under the Armed Career Criminal Act, his prior convictions cannot be counted because his civil rights had been restored. For the following reasons, we affirm.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judge

Argued: October 3, 2008

Before: JACOBS, Chief Judge, MINER and SOTOMAYOR, Circuit Judges.

Defendant-Appellant William Bullock, Jr. appeals from a judgment of conviction entered in the United States District Court for the Northern District of New York (McAvoy, J.) on July 13, 2007. Bullock argues that: (1) his conviction (and sentence) under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), must be set aside because his civil rights had been restored; (2) his motion for a judgment of acquittal or new trial should have been granted because there was insufficient evidence to establish his constructive possession of ammunition found in a shared residence; (3) the jury venire was not representative of a cross-section of the community; and (4) his sentence is disproportionate in violation of the Eighth Amendment. We affirm.

BACKGROUND

In October 2005, a confidential informant working for the Albany County Sheriff's Department made two small purchases of crack cocaine from Bullock. Based on these transactions, the Sheriff's Department obtained a search warrant for the residence that Bullock shared with his fiancee.

During a search of the residence executed on October 12, 2005, law enforcement officials opened a dresser drawer in the bedroom shared by Bullock and his fiancee and found a small quantity of crack cocaine, some correspondence addressed to Bullock, eight rounds of ammunition, zip-lock baggies of a kind used to package cocaine, a speed loader used to feed ammunition into a revolver, and $1,543 cash. Thirty dollars of the cash was identified as pre-recorded buy money paid to Bullock during a transaction with the confidential informant. Law enforcement officials also seized a rifle, two shotguns, and assorted ammunition from a duffel bag in Bullock's garage.

Bullock was charged with two ACCA counts, one for possessing ammunition and the other for possessing firearms after having been convicted of at least three violent felony offenses in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He was convicted on the ACCA count charging possession of ammunition but acquitted on the ACCA count charging possession of firearms. He was also convicted on two counts of possessing with intent to distribute and distributing cocaine base and one count of possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Bullock was sentenced principally to 188 months' imprisonment on the ACCA count, eight months above the mandatory minimum sentence, and to twelve months and a day on each of the other counts to run concurrently with the sentence on the ACCA count.

DISCUSSION

I.

Bullock argues that the imposition of a fifteen-year mandatory minimum sentence was error because the ACCA does not count convictions that have "been expunged, or set aside or for which a person has been pardoned or has had civil rights restored . . . unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(a)(20).

Bullock contends that his civil rights had been restored at the time of the present offense because he "had been off parole for 11 years," he "was entitled to vote," and New York State law did not restrict his right to possess ammunition.

The restoration of civil rights involves three components: (1) the right to vote; (2) the right to serve on a jury; and (3) the right hold elective office. See McGrath v. United States, 60 F.3d 1005, 1007 (2d Cir. 1995); see also Logan v. United States, 128 S.Ct. 475, 480 (2007) ("While § 921(a)(20) does not define the term 'civil rights,' courts have held, and petitioner agrees, that the civil rights relevant under the above-quoted provision are the rights to vote, hold office, and serve on a jury."). Bullock's rights to vote and hold office were arguably restored by operation of law. See N.Y. Election Law § 5-106; N.Y. Civil Rights Law § 79. However, his right to serve on a jury was not; he was not pardoned; ...


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