United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
T. Maughmer United States Magistrate Judge
to June 5, 2016, defendant Donzell Jones (âJonesâ) had been
convicted on several felony offenses under Missouri state
criminal law, to wit:
• Possession of Controlled Substance [Mo. Rev. Stat.
§ 195.202] on January 5, 2001;
• Tampering with a Motor Vehicle [Mo. Rev. Stat. §
569.080.1(2)], Trafficking in Drugs in the Second Degree [Mo.
Rev. Stat. § 195.223], and Possession of Controlled
Substance [Mo. Rev. Stat. § 195.202] on September 6,
• Driving While Revoked [Mo. Rev. Stat. § 302.321]
and Possession of Controlled Substance [Mo. Rev. Stat. §
195.202] on May 24, 2011.
17, 2018, Jones was indicted on two counts of being a felon
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1). Specifically, the
Indictment alleges that, on June 5, 2016, Jones was found in
the possession of a Jimenez Arms 9mm semi-automatic handgun.
pending before the Court is Jones' motion to dismiss the
Indictment (Doc. 51), wherein Jones - acting pro se
- contends that the government cannot meet the statutory
elements necessary to convict him under Section 922(g)(1).
That federal criminal statute provides:
(g) It shall be unlawful for any person-
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year . .
. .; to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign
18 U.S.C. § 922(g)(1). The government must prove three
essential elements for a Section 922(g)(1) conviction: (1)
the defendant previously was convicted of a crime punishable
by a term of imprisonment exceeding one year; (2) he
knowingly possessed a firearm; and (3) the firearm traveled
in or affected interstate commerce. United States v.
Stanko, 491 F.3d 408, 412 (8th Cir. 2007). Jones'
motion focuses on the first element.
what constitutes a conviction of a qualifying predicate crime
for purposes of Section 922(g)(1) is “determined in
accordance with the law of the jurisdiction in which the
proceedings were held.” 18 U.S.C. § 921(a)(20).
See also United States v. Thornton, 766 F.3d 875,
877 n.1 (8th Cir. 2014). To that end, federal law also gives
due deference to decisions by a state to
“restore” its citizens' gun rights:
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.
18 U.S.C. § 921(a)(20). As a result of various state
government legislative enactments addressing gun rights,
“the question has arisen whether under [Section]
921(a)(20) state restoration of a federal felon's civil
rights precludes use of the conviction for which civil rights
were restored as a predicate conviction required for the
imposition of criminal liability pursuant to [Section]
922(g)(1).” Richard Belfiore, State Restoration of
Federal Felon's Civil Rights as Nullification of
Conviction Under 18 U.S.C.A. § 921(a)(20) Which Defines
Conviction for Purposes of Penalizing Possession of
Weapon by Convicted Felon Pursuant to 18 U.S.C.A. §
922(g)(1), 117 A.L.R. Fed. 247, 247 (1994 &
upon the “restoration” language of Section
921(a)(20), Jones argues that “his right to bear
arms” was restored in 2014 by the voters of the State
of Missouri when they approved an amendment to the Missouri