The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On May 26, 2009, a jury convicted Defendant Shariff Miller ("Miller") of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count
I), possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count II), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count III). In light of the Seventh Circuit's opinion in Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (en banc), Miller moves to vacate the jury's verdict as to Count II, to dismiss the indictment, and objects to the finding in the Presentence Investigation Report (the "PSR") that he is a career offender under §4B1.1 of the United States Sentencing Guidelines (the "Guidelines"). For the reasons stated, Miller's Motions are denied and his Objection is overruled.
I. The Investigation, Indictment, and Trial
On April 21, 2008, local police executed a search warrant of Miller's residence in Zion, Illinois. During the search, officers seized over twenty-five grams of crack cocaine, a .45 caliber semi-automatic handgun, a Remington Rand .30-06 caliber rifle, a Sturm Ruger .44 caliber rifle, and ammunition for the firearms. On April 21, 2009, a federal grand jury returned a Superseding Indictment*fn1 charging Miller with possession with intent to distribute five grams or more of crack cocaine, possession of the three firearms as a felon, and possession of the firearms in furtherance of a drug trafficking crime. Specifically as to the felon-in-possession charge, the Superseding Indictment charged that Miller had been previously "convicted of a crime punishable by imprisonment for a term exceeding one year." (R. 50 at 2.) The Government admits, however, that the grand jury specifically heard about Miller's 2000 Lake County, Illinois drug distribution conviction ("the Illinois conviction"). (Tr. of May 13, 2010 Status Conference at 17:9-13.) After deliberating, the jury found that Miller possessed five grams or more of crack cocaine with the intent to distribute, that he possessed the handgun and the Remington rifle in violation of 18 U.S.C. § 922(g)(1), and that he possessed the handgun in furtherance of a drug trafficking crime. The Court denied Miller's Motion for Judgment of Acquittal or New Trial on September 29, 2009. (See R. 98.)
II. Post-Trial Proceedings
On September 10, 2009, the Seventh Circuit issued its decision in Buchmeier. In Buchmeier, the Seventh Circuit held that the petitioner's notice of restoration of rights from the State of Illinois for his past convictions rendered those convictions unusable for purposes of enhancing a subsequent federal sentence. 581 F.3d at 567. Believing that after Buchmeier his Illinois conviction could no longer support his felon-in-possession conviction, Miller moved to vacate the jury's verdict as to the felon-in-possession count, to dismiss the indictment, and objected to his status as a career offender. Miller stated in an affidavit that he received the same notice of restoration of rights from the Illinois Department of Corrections ("IDOC") upon his completion of parole for his Illinois conviction that the petitioner in Buchmeier received and Miller attached to his affidavit an example of what he claimed is a notice identical to the one he received. (R. 112, Mot. to Dismiss Indictment, Ex. 1.)
The Government conceded that after Buchmeier, Miller's Illinois conviction no longer qualifies as a prior felony conviction under § 921(a)(20) and thus cannot support his felon-in-possession conviction. It pointed out, however, that it need not rely on the Illinois conviction because Miller's prior felony conviction for drug distribution in Kenosha County, Wisconsin in 1997 (the "Wisconsin conviction") can serve as the predicate felony in this case. In response, Miller filed a Supplemental Sentencing Memorandum in which he argued that his Wisconsin conviction is also unuseable after Buchmeier. This time, Miller attached two affidavits: one in which he stated that he received a "Discharge Certificate" from the State of Wisconsin Department of Corrections ("WDOC") that restored his "all" of his rights and that did not inform him that he could not possess a firearm, and one in which he stated that his IDOC restoration of rights notice "led [him] to believe" that his rights in Wisconsin had also been restored. (Id., Exs. 3, 4.) In its Response to Miller's Supplementary Sentencing Memorandum, the Government attached an affidavit in which James B. Pritchard ("Pritchard"), Forms Officer for WDOC, stated that the form Miller would have received explicitly forbid the use or possession of firearms without a pardon from the Governor. (R. 121, Resp. to Def. Supp. Sent. Memo., Ex. 1.) The Government also attached a sample copy of the document Pritchard said Miller would have received. (Id.) In light of the conflicting views about what version of "Discharge Certificate" Miller received from WDOC upon completion of his parole and what rights it restored, the Court granted Miller's Oral Motion for an evidentiary hearing. (Tr. of May 13, 2010 Status Conference at 23:23-25, 24:1-6.)
III. The Evidentiary Hearing
The Court held an evidentiary hearing on July 19, 2010. At the hearing, Miller testified that he has two prior convictions for distribution of illegal substances-one in Illinois and one in Wisconsin. He testified that he was convicted of the Wisconsin offense in 1997 and was sentenced to three years in prison. Miller stated that he served twenty-five months in prison and was then released on parole. In 2000, while he was on parole for the Wisconsin offense, Miller testified that he committed the Illinois offense, served eighteen months of his four-year sentence, and was released from parole in August of 2001. Miller stated that because he had violated his Wisconsin parole by committing the Illinois offense, Miller was taken back to Wisconsin to finish his term of parole there.
Miller testified that in August of 2002, he was discharged from his Wisconsin parole at the Milwaukee Detention Center. Upon his discharge, Miller stated that he received a discharge paper that told him that his judgment was complete and that his rights were restored. Although Miller had stated in an affidavit that the WDOC discharge paper restored "all" of his rights, Miller testified at the hearing that although he could not remember exactly what the discharge paper said, he does remember that it restored his right to vote. He testified that he also remembers that the discharge paper did not mention anything about the use or possession of a firearm. Miller's attorney introduced two example WDOC discharge papers (Exhibits A and B), both of which Miller denied receiving when he was discharged in Wisconsin.
Miller also testified that in June of 2003, after he was discharged from his Illinois parole, he received another discharge paper, this time from IDOC. Miller's attorney introduced an example IDOC discharge paper (Exhibit C), which restored the right to hold office and restored any state licenses. Exhibit C was silent as to the right to possess firearms. Miller stated that while Exhibit C was similar to the discharge paper he received, his discharge paper also restored the right to vote. Like Exhibit C, Miller testified, his discharge paper did not say anything about possession of guns. Miller further testified that after he received the restoration of rights notice from Illinois, he believed it restored his rights generally, not just in Illinois. Miller testified that he does not have the documents he received from either Wisconsin or Illinois.
The Government then called Pritchard to the stand. Pritchard testified that he has worked at WDOC since 1990 and has been its Forms Officer since about 2000. Pritchard testified that part of his duties as Forms Officer are to create and revise WDOC forms. Pritchard stated that he also keeps a history folder on each form WDOC has used, including its discharge forms. Pritchard testified that he also keeps a WDOC history folder on each form, which contains every ...