United States, Plaintiff-appellee, v. Gary Gilliam, Defendant-appellant, 86 F.3d 1156 (6th Cir. 1996)

Defendant Gary Gilliam appeals his conviction following a bench trial for one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1). We AFFIRM.

This criminal case is before us for a second time. See also United States v. Gilliam, 979 F.2d 436 (6th Cir. 1992), cert. denied, 507 U.S. 1034 (1993). In 1991, Gilliam was charged under § 922(g) (1) for possessing a semiautomatic rifle in December 1990, after having been convicted in 1978 of first degree sexual conduct. Defendant successfully challenged the indictment in the district court. See United States v. Gilliam, 778 F. Supp. 935 (E.D. Mich. 1991). This court reversed and remanded for further proceedings. See Gilliam, 979 F.2d at 437.

At trial, the only issue before the court was whether defendant was in possession of the gun.¹  The district court found that Gilliam possessed a semiautomatic rifle on numerous occasions between December 12, 1990 and December 19, 1990. The court sentenced defendant to 120-months imprisonment on the felon in possession charge and added six months for criminal contempt of court during the sentencing hearing. Gilliam appeals.

In this appeal Gilliam argues²  basically that he qualifies for the exemption of 18 U.S.C. § 921(a) (20) to § 922(g) (1) because at the time of the offense at issue his civil rights had been restored under Michigan law. However, this precise issue has been already decided against defendant in his initial appeal to this court. See Gilliam, 979 F.2d at 437. As noted in that opinion, this circuit held in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), cert. denied, 506 U.S. 1083 (1993), that "Michigan law does not fully restore a convicted felon's civil rights for purposes of section 921(a) (20) because a Michigan felon is restricted from serving on juries and from possessing certain types of firearms." Gilliam, 979 F.2d 437 (citing Driscoll, 970 F.2d at 1481). See also United States v. Tinker, 985 F.2d 241, 242 (6th Cir. 1992) (applying Driscoll), cert. denied, 507 U.S. 1040 (1993); United States v. Sims, 975 F.2d 1225, 1241 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993) (same). It is well-established that one panel cannot overrule the decision of an earlier panel. Gilliam, 979 F.2d at 437; Driscoll, 970 F.2d at 1478; United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir.), cert. denied, 501 U.S. 1217 (1991). Because defendant's argument revisits the issues raised and rejected in Driscoll and Gilliam, we are not free to reconsider them.³  See United States v. Berman, 884 F.2d 916, 923 (6th Cir. 1989) (issue presented and decided in prior appeal is law of the case); United States v. Rivera-Martinez, 931 F.2d 148, 150 (1st Cir.) (same), cert. denied, 502 U.S. 862 (1991).

Defendant's conviction is AFFIRMED.

ANN ALDRICH, District Judge, concurring in the result.

Recognizing that this panel cannot overrule Driscoll, see United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir.), cert. denied, 501 U.S. 1217 (1991), I must concur in the result. However, for the reasons stated in Judge Jones' dissent in Driscoll, see United States v. Driscoll, 970 F.2d 1472, 1486-88 (6th Cir. 1992) (Jones, J., dissenting), I write separately to express my disagreement with the majority's holding in that case.