U.S. v. Neeley
| Decision Date | 18 December 2007 |
| Docket Number | No. 07-40090-01-SAC.,07-40090-01-SAC. |
| Citation | 527 F.Supp.2d 1326 |
| Parties | UNITED STATES of America, Plaintiff, v. Richard Odel NEELEY, Jr., Defendant. |
| Court | U.S. District Court — District of Kansas |
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for Plaintiff.
This case comes before the court on defendant's motion to dismiss one count of the indictment, and defendant's motion to suppress evidence. The government opposes both motions.
Defendant is charged by indictment with three counts based on incidents alleged to have occurred on June 5, 2007: Count 1— possessing with intent to distribute Ecstacy, containing MDMA, a controlled substance; Count 2—possessing a firearm during and in relation to a drug trafficking crime; and, Count 3—being a felon in possession of a firearm.
Defendant contends that Count 3 of the indictment, which alleges that defendant is a felon in possession of a firearm, should be dismissed for the government's inability to prove the underlying felony conviction. It is undisputed that a prior conviction is an element of this count, and must be proved by the government. See U.S. v. Stober, 604 F.2d 1274, 1277 (10th Cir.1979). Defendant contends that he has no prior conviction because the state proceeding referenced in the indictment as the basis for defendant's prior felony was merely a "deferred judgment" which, under Oklahoma law, fails to constitute a "conviction."
Count 3 of the indictment states:
On or about the 5th day of June, 2007, in the District of Kansas, the defendant ... having been convicted of a crime punishable by imprisonment for a term exceeding one year, to wit: on January 10, 2007, defendant was convicted of possession of cocaine base, in violation of 63 O.S. 2-401—2-420, a felony, in the District Court of Oklahoma County, Oklahoma, case number CF-2006-6948, did knowingly possess in and affecting commerce a firearm, to wit: a Glock, Inc. Model 22, .40 caliber semi-automatic pistol, bearing serial number FYK288, which had been shipped and transported in interstate and/or foreign commerce, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).
The relevant federal firearm 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 commerce.
18 U.S.C.A. § 922(g).
The phrase "crime punishable by imprisonment for a term exceeding one year" is defined in § 921(a)(20), which provides, in relevant part:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. 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.A. § 921(a)(20). Accordingly, the decision whether defendant's prior Oklahoma court proceeding resulted in a qualifying "conviction" for purposes of this statute must be based upon Oklahoma law.
The government's argument that federal law should control is based upon old case law which has effectively been superseded by the statutory language quoted above. See Dickerson v. New Banner Inst. Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (); U.S. v. Pennon, 816 F.2d 527, 529 (10th Cir.1987) (). Pennon noted that Congress consolidated the federal gun control statutes in 1986 by repealing section 1202 and by amending section 922(g), such that "Congress' decision to adopt expressly the states' definitions of what constitutes a conviction effectively overrules Dickerson." 816 F.2d at 529. Thus for crimes committed post-1986 when Congress amended § 921(a)(20)'s definition of predicate offenses, state law defines what constitutes a predicate conviction. See Firearms Owners' Protection Act of 1986, Pub.L. No. 99-308, § 101(5), 100 Stat. 449 (1986).
The court similarly rejects the government's contention that Tenth Circuit law interpreting § 4A1.1(d) of the federal Sentencing Guidelines should control. Federal sentencing is a matter peculiarly within the province of the federal court, and the sentencing guidelines, which are a creature of a federal commission, are properly interpreted by reference to federal law. Additionally, the language of the USSG, which adds two points if the defendant committed the instant offense while under "any criminal justice sentence, including probation, parole, supervised release ...," is significantly broader than the language of the felon in possession of a firearm statute, which requires that defendant be "convicted of a crime punishable by imprisonment for a term exceeding one year." Accordingly, the court finds U.S. v. Vela, 992 F.2d 1116, 1117 (10th Cir.1993) (), and like cases, to be distinguishable.
In accordance with the dictate of 18 U.S.C.A. § 921(a)(20), the Court looks to the state law of Oklahoma to determine whether defendant's deferred judgment in Oklahoma for possession of cocaine base constitutes a "conviction" within the meaning of that term in 922(g)(1). The Oklahoma deferred judgment statute, provides:
A. Upon a verdict or plea of guilty or upon a plea of nolo contendere, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings upon the specific conditions prescribed by the court not to exceed a five-year period. The court shall first consider restitution among the various conditions it may prescribe.
...
C. Upon completion of the conditions of the deferred judgment, and upon a finding by the court that the conditions have been met and all fines, fees, and monetary assessments have been paid as ordered, the defendant shall be discharged without a court judgment of guilt, and the court shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action....
Under this law, a deferred sentence generally entails "a probationary period of up to five years after which, if the accused has complied with the rules and conditions of probation, the case is dismissed without a criminal conviction and the record is expunged ..." Hammon v. Ward, 466 F.3d 919, 923 n. 4 (10th Cir.2006). As explained by the Oklahoma Court of Criminal Appeals in such a matter, "the [trial] court retains jurisdiction and only a conditional order, not a judgment and sentence, is entered." Nguyen v. State, 772 P.2d 401, 403 (Okla.Crim.App.1989), overruled on other grounds by Gonseth v. State, 871 P.2d 51, 54 (Okla.Crim.App.1994),
Thus under Oklahoma law, a deferred sentence generally "is not a conviction until such time as the trial court pronounces judgment and sentence." Belle v. State, 516 P.2d 551, 552 (Okla.Crim.App. 1973). See Crews v. Shelter General Ins. Co., 393 F.Supp.2d 1170, 1176 (W.D.Okla. 2005); U.S. v. Turner, 497 F.2d 406, 407 (10th Cir.1974); U.S. v. Stober, 604 F.2d 1274 (10th Cir.1979) (); United States v. Parker, 604 F.2d 1327, 1329 (10th Cir.1979)( the felony conviction requirement of section 1202(a)(1) was not satisfied because Oklahoma courts did not view the deferred judgment as a conviction). Accordingly, under the general rule, a defendant subject to a deferred sentence in Oklahoma, for whom judgment has not yet been entered and sentence has not yet been imposed, has not "been convicted" of a felony for purposes of Section 922(g)(1).
Nonetheless, the court's review of Oklahoma statutes shows that the general rule is inapplicable in this case. Defendant's Oklahoma deferred judgment for possession of a controlled substance is subject to an exception set forth in Oklahoma's Controlled Dangerous Substances Act. That Act specifically states that a plea of guilty or finding of guilt shall "constitute a conviction of the offense for the purpose of this act or any other criminal statute under which the existence of a prior conviction is relevant." 63 Okl. St. Ann. § 2-410. The relevant statute states:
§ 2-410. Conditional discharge for possession as first offense
Whenever any person who has not previously been convicted of any offense under this act [FN1] or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled dangerous substance under Section 2-402, the court may, without entering a judgment of guilt and with the consent...
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...a disqualifying offense has been expunged”). 3. The treatment of deferred judgments in other states varies. See United States v. Neeley, 527 F.Supp.2d 1326, 1330 (D.Kan.2007) (noting that under the general rule in Oklahoma, a defendant who has received a deferred judgment has not been “conv......