U.S. v. Anton, No. 07-13124.

• Citation: 546 F.3d 1355
• Decision Date: 30 October 2008
• Docket Number: No. 07-13124.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter A. ANTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

546 F.3d 1355

UNITED STATES of America, Plaintiff-Appellee, v. Peter A. ANTON, Defendant-Appellant.

No. 07-13124.

United States Court of Appeals, Eleventh Circuit.

October 30, 2008.

Gerald S. Bettman, Jacksonville, FL, for Anton.

Terry Flynn, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before BARKETT and WILSON, Circuit Judges, and GOLDBERG,^* Judge.

GOLDBERG, Judge:

Peter Anton appeals his conviction for possession of a firearm by a convicted felon in violation of Title 18 U.S.C. § 922(g)(1) (2000). He first contends that the district court erred in denying his motion to dismiss the indictment because he is not a convicted felon. Anton further argues that his constitutional rights under the Fifth and Sixth Amendments were violated by various district court decisions. Anton also contends that the district court erroneously failed to grant his motion to suppress the evidence seized in the search of his residence because the warrant was not supported by probable cause. Lastly, Anton objects to the calculation of his sentencing range; specifically arguing that the district court erred: (1) in calculating his base offense level by holding him, without supporting evidence, responsible for over 200 firearms and a stolen firearm; (2) in finding that his firearms were not possessed for sporting or collection purposes; and (3) in failing to grant him a two-level reduction for timely acceptance of guilt. For the following reasons, we affirm Anton's conviction, but vacate and remand for resentencing.

I. DISCUSSION

A. Anton's Status as a Convicted Felon

Anton first argues that the district court erred in concluding that his 1989 plea of nolo contendre to one count of grand theft was a felony conviction. This argument is meritless. "What constitutes a conviction ... [is] determined in accordance with the law of the jurisdiction in which the proceedings were held ...." 18 U.S.C. § 921(a)(20). Under Florida law, a "`conviction' means adjudication of guilt irrespective of the sentence." Weathers v. State, 56 So.2d 536, 538 (Fla.1952). The Florida Statutes further provide that:

[i]f it appears likely to the court upon a hearing of the matter that the defendant is not likely to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and in either case, it shall stay and withhold the imposition of sentence upon such defendant and place the defendant upon probation.

Fla. Stat. ch. 948.01(2).

We review questions of statutory interpretation de novo. United States v. Johnson, 399 F.3d 1297, 1298 (11th Cir. 2005). Under Florida Statute 948.01(2), the district court has the discretionary authority to withhold the adjudication of guilt. Sanchez v. State, 541 So.2d 1140, 1141 (Fla.1989). This decision is of vital importance as a plea of nolo contendre is not a felony conviction if the adjudication of guilt has been withheld. United States v. Willis, 106 F.3d 966, 967-68 (11th Cir. 1997). However, "a nolo contendre plea where adjudication is not withheld or where there is subsequently an adjudication of guilt is a conviction ...." United States v. Drayton, 113 F.3d 1191, 1193 (11th Cir.1997). In arguing his motion to dismiss, Anton conceded that he had been adjudicated guilty. Anton now cites several cases in support of his argument that an individual given a suspended sentence is not a convicted felon upon completion of the probationary term. See, e.g., Page v. State Bd. of Med. Exam'rs, 141 Fla. 294, 193 So. 82 (1940); Smith v. State, 75 Fla. 468, 78 So. 530 (1918). However, none of these cases involved an adjudication of guilt and therefore are inapposite. As the district judge adjudicated Anton's guilt in its 1989 order, Anton's nolo contendre plea is a conviction under Florida law. Accordingly, the district court did not err in concluding that Anton was a convicted felon for the purposes of § 922(g).

B. Anton's Affirmative Defenses

Anton argues next that the district court violated his Sixth Amendment right to present a meaningful defense, and the Fifth Amendment requirement which places the burden of proving all elements of an offense upon the prosecution. We review constitutional claims de novo. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir.2006). Anton argues that the district court erred in barring Anton from presenting evidence that his civil rights were restored after his probationary period expired, and that his nolo contendre plea was not a criminal conviction. However, these arguments are meritless. Anton's restoration of rights argument was based upon his erroneous interpretation of Florida Statute 948.01(2) as having restored his civil rights upon his completion of the probationary period. As previously discussed, Anton's 1989 nolo contendre plea was a felony conviction. No other evidence demonstrating that his civil rights had been restored was presented. If a defendant offers no relevant evidence to support a defense, the court may properly bar its presentation at trial. United States v. Thompson, 25 F.3d 1558, 1560 (11th Cir.1994). Accordingly, the district court did not err in barring this argument.

As far as his status as a convicted felon, the district court correctly concluded that this involved a question of law, rather than a question of fact for the jury. Willis, 106 F.3d at 967. Further, the district court did not engage in improper burden shifting because, had the case proceeded to trial, the government would still have been required to present evidence establishing Anton's conviction. The district court's ruling merely determined what constituted a criminal conviction as a matter of law, a legal finding to which the jury would then have applied to the facts of the case at trial. As such, the district court did not err in barring this defense, or engaging in improper burden shifting.

C. Anton's Motion to Suppress

Anton also argues that the district court erred in denying his motion to suppress the evidence obtained in the search of his residence—claiming that the warrant lacked sufficient facts to establish probable cause. The Court reviews denials of motions to suppress under a mixed standard of review—"reviewing the district court's findings of fact for clear error and its application of law to those facts de novo." United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.2005).

Generally, probable cause exists to support a search warrant when the totality of the circumstances indicates that there is a fair probability of discovering contraband. United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.1999). Evidence that the defendant is in possession of contraband that is of the type that would normally expect to be hidden at their residence will support a search. United States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir.1990). Here, the warrant was supported by probable cause. According to the supporting affidavit, federal agents observed Anton with firearms at several gun shows. A confidential informant also indicated that Anton would attend a specific gun show and had claimed to be in possession of over 300 firearms. The affidavit further noted that based upon the federal agent's experience, convicted felons and firearms dealers possessing contraband typically store these items on their property. Based on these statements and the fact that Anton's trailer was observed at multiple gun shows, the totality of the evidence provided probable cause to support the search of Anton's residence. Anton also argued that the warrant was based on stale...