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In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 17‐2985

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JIMMY L. THOMPSON,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16‐cr‐795 — Charles P. Kocoras, Judge.

____________________

ARGUED APRIL 19, 2018 — DECIDED AUGUST 24, 2018

____________________

Before RIPPLE, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Jimmy Thompson was charged by

indictment and pled guilty to being a felon in possession of a

firearm, 18 U.S.C § 922(g)(1). He admitted he possessed the

firearm and initially conceded he was a felon based on his

prior conviction of aggravated unlawful use of a weapon

(“AUUW”), an Illinois state‐law offense. Later, however, he

moved to set aside his plea on the basis that the AUUW con‐

viction was invalid and thus, Thompson argued, he should
2 No. 17‐2985

not have been considered a felon. Indeed, this court and the

Illinois Supreme Court ruled the AUUW statute unconstitu‐

tional before Thompson was charged in this case, Moore v.

Madigan, 702 F.3d 933 (7th Cir. 2012); People v. Aguilar, 2

N.E.3d 321 (2013), though Thompson never moved to have

the conviction vacated or expunged. The district court, rely‐

ing on the Supreme Court’s decision in Lewis v. United States,

445 U.S. 55 (1980), rejected Thompson’s argument, denied his

motion, and sentenced him to sixteen months’ imprisonment.  

Thompson reasserts this same argument on appeal—that

a conviction for violating a state statute later ruled unconsti‐

tutional and void ab initio cannot serve as a predicate offense

for purposes of the federal felon in possession statute. In so

doing, Thompson is asking us to overturn our decision in

United States v. Lee, 72 F.3d 55 (7th Cir. 1995). We decline to do

so.

I. ANALYSIS

Whether Thompson was properly considered a felon turns

on the interpretation of the felon in possession statute and of

controlling case law, so our review is de novo. United States v.

Miller, 883 F.3d 998, 1003 (7th Cir. 2018).

The district court’s interpretation is entirely consistent

with our decision in Lee. In that case, the defendant was

charged with being a felon in possession of a firearm based

on a prior state‐law felony conviction. 72 F.3d at 56. After Lee

was indicted but before he was tried, the state expunged his

previous conviction. Id. Like Thompson, Lee argued the gov‐

ernment could not prove that he had previously been con‐

victed of a felony because the conviction was expunged void
No. 17‐2985 3

ab initio. Id. at 58. We rejected this argument based on the Su‐

preme Court’s decision in Lewis. Lee, 72 F.3d at 58.

Today, we again reject the argument. The plain meaning

of § 922(g)(1) “is that the fact of a felony conviction imposes

[a] firearm disability until the conviction is vacated or the

felon is relieved of his disability by some affirmative action.”

Lewis, 445 U.S. at 60–61. “No exception ... is made for a person

whose outstanding felony conviction ultimately might turn

out to be invalid for any reason.” Id. at 62. From this language

it is clear that “Congress ... intended that the defendant clear

his status before obtaining a firearm.” Id. at 64. Thompson

could have filed petition in state court to have his conviction

vacated but failed to do so.  

Thompson presents us with several policy‐based reasons

why this rule is, in his view, unfair. Those arguments are best

suited for the policymakers, not the courts. So far Congress

has made no change to the relevant language of its statute,

and we remain convinced that our earlier interpretation was

correct. This district court did not err in denying Thompson’s

motions to withdraw his plea and to vacate the indictment.

II. CONCLUSION

At the time that Thompson possessed the firearm, he had

been convicted of a felony, and that felony conviction had not

been expunged. Thus he violated the federal statute. The

judgment of the district court is AFFIRMED.

text/markdown


### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2985

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J IMMY L. T HOMPSON

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16

‐ cr

‐ 795

— Charles P. Kocoras

, Judge

.

____________________

A RGUED A PRIL 19, 2018

— D ECIDED A UGUST 24, 2018

____________________

Before R IPPLE

, M ANION

, and K ANNE

, Circuit Judges

.

K ANNE

, Circuit Judge

. Jimmy Thompson was charged by

indictment and pled guilty to being a felon in possession of a

firearm, 18 U.S.C § 922(g)(1). He admitted he possessed the

firearm and initially conceded he was a felon based on his

prior conviction of aggravated unlawful use of a weapon

(“AUUW”), an Illinois state

‐ law offense. Later, however, he

moved to set aside his plea on the basis that the AUUW con

‐

viction was invalid and thus, Thompson argued, he should2 No. 17

‐ 2985

not have been considered a felon. Indeed, this court and the

Illinois Supreme Court ruled the AUUW statute unconstitu

‐

tional before Thompson was charged in this case, Moore v.

Madigan

, 702 F.3d 933 (7th Cir. 2012); People v. Aguilar

, 2

N.E.3d 321 (2013), though Thompson never moved to have

the conviction vacated or expunged. The district court, rely

‐ ing on the Supreme Court’s decision in Lewis v. United States

,

445 U.S. 55 (1980), rejected Thompson’s argument

, denied his

motion, and sentenced him to sixteen months’ imprisonment.

Thompson reasserts this same argument on appeal—that

a conviction for violating a state statute later ruled unconsti

‐

tutional and void ab initio cannot serve as a predicate offense

for purposes of the federal felon in possession statute. In so

doing, Thompson is asking us to overturn our decision in

United States v. Lee

, 72 F.3d 55 (7th Cir. 1995)

. We decline to do

so.

I. A NALYSIS

Whether Thompson was properly considered a felon turns

on the interpretation of the felon in possession statute and of

controlling case law, so our review is de novo

. United States v.

Miller

, 883 F.3d 998, 1003 (7th Cir. 2018).

The district court’s interpretation is entirely consistent

with our decision in Lee. In that case, the defendant was

charged with being a felon in possession of a firearm based

on a prior state

‐ law felony conviction. 72 F.3d at 56. After Lee

was indicted but before he was tried, the state expunged his

previous conviction. Id. Like Thompson, Lee argued the gov

‐

ernment could not prove that he had previously been con

‐

victed of a felony because the conviction was expunged voidNo. 17

‐ 2985 3

ab initio

. Id. at 58. We rejected this argument based on the Su

‐

preme Court’s decision in Lewis

. Lee

, 72 F.3d at 58.

Today, we again reject the argument. The plain meaning

of § 922(g)(1) “is that the fact of a felony conviction imposes

[a] firearm disability until the conviction is vacated or the

felon is relieved of his disability by some affirmative action.”

Lewis

, 445 U.S. at 60–61. “ No exception

... is made for a person

whose outstanding felony conviction ultimately might turn

out to be invalid for any reason.” Id

. at 62. From this language

it is clear that “Congress

... intended that the defendant clear

his status before obtaining a firearm.” Id. at 64. Thompson

could have filed petition in state court to have his conviction

vacated but failed to do so.

Thompson presents us with several policy

‐ based reasons

why this rule is, in his view, unfair. Those arguments are best

suited for the policymakers, not the courts. So far Congress

has made no change to the relevant language of its statute,

and we remain convinced that our earlier interpretation was

correct. This district court did not err in denying Thompson’s

motions to withdraw his plea and to vacate the indictment.

II. C ONCLUSION

At the time that Thompson possessed the firearm, he had

been convicted of a felony, and that felony conviction had not

been expunged. Thus he violated the federal statute. The

judgment of the district court is AFFIRMED.