U.S. v. Pennon, 86-1063
Decision Date | 14 April 1987 |
Docket Number | No. 86-1063,86-1063 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Reen PENNON, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Susan M. Otto, Asst. Federal Public Defender (David Booth, Federal Public Defender, with her on the brief), Tulsa, Okl., for defendant-appellant.
Gene V. Primomo, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., with him on the brief) for plaintiff-appellee.
Before SEYMOUR, REINHARDT, * and TACHA, Circuit Judges.
Robert Reen Pennon was convicted in a jury trial of manufacturing phencyclidine (PCP) in violation of 21 U.S.C. Sec. 841(a)(1) (1982), possession of PCP with intent to distribute, also in violation of 21 U.S.C. Sec. 841(a)(1), and possession of a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. app. Sec. 1202(a)(1) (1982). Pennon contends on appeal that (1) he has never previously been convicted of a felony within the meaning of section 1202(a)(1), and (2) the evidence is insufficient to sustain his conviction for manufacturing PCP. We reject both contentions and affirm.
In 1983, Pennon pleaded guilty in an Oklahoma state court to a charge of obtaining property valued at more than fifty dollars by the use of a false or bogus check, a felony under Oklahoma law. See Okla.Stat. tit. 21, Sec. 1541.2 (Supp.1986). Pennon received a deferred judgment and a term of probation pursuant to Okla.Stat. tit. 22, Sec. 991c (Supp.1986), which provides that, "[u]pon completion of the probation term, ... the defendant shall be discharged without a court judgment of guilt, and the ... plea of guilty ... shall be expunged from the record." Oklahoma courts have held that a deferred judgment under section 991c does not constitute a conviction. See, e.g., Belle v. State, 516 P.2d 551, 552 (Okla.Crim.App.1973); see also United States v. Stober, 604 F.2d 1274, 1276 (10th Cir.1979).
Pennon was still serving his probation term at the time he was indicted under section 1202(a)(1). That section prohibits any person who "has been convicted ... of a felony" from receiving, possessing, or transporting any firearm. Pennon admits that he possessed a firearm, but argues that he is not a convicted felon within the meaning of section 1202(a)(1). Pennon claims that the outcome of his case should be determined by United States v. Parker, 604 F.2d 1327 (10th Cir.1979), which also involved a section 1202(a)(1) conviction that was based upon a guilty plea and deferred judgment under the same Oklahoma statute involved here. We held there that, because Oklahoma courts did not view the deferred judgment as a conviction, the felony conviction requirement of section 1202(a)(1) was not satisfied. Id. at 1329. For the reasons set forth below, however, we conclude that this aspect of Parker is no longer good law.
In 1983, the Supreme Court held that a plea of guilty to a state offense punishable by imprisonment of more than one year, followed by a successfully served probation term and the expunction of the defendant's record, does constitute a conviction for purposes of 18 U.S.C. Sec. 922(g), (h), another federal statute that prohibits certain persons from transporting or receiving firearms. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). The Court in Dickerson wrote generally about the federal legislation of which both sections 1202(a)(1) and 922(g), (h) are parts, and stated that "[w]hether one has been 'convicted' within the language of the [federal] gun control statutes is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State." Id. at 111-12, 103 S.Ct. 991-92. The Court held that the state deferred judgment provisions involved in that case would not prevent the defendant's guilty plea from constituting a conviction. Id. at 112-14, 103 S.Ct. at 991-93. The Court also ruled that the expunction of the defendant's record did not mean that he was innocent of the crime to which he pleaded guilty. Id. at 115, 103 S.Ct. at 993. The expunction therefore had no effect on the defendant's conviction for purposes of the federal firearms statute. Id.
Since Dickerson, federal courts have consistently applied its principles and reasoning to section 1202(a)(1), even though Dickerson involved only section 922(g), (h). See United States v. Millender, 811 F.2d 476 (8th Cir.1987) ( ); United States v. Crochet, 788 F.2d 1061, 1062 (5th Cir.1986) ( ); United States v. Freed, 703 F.2d 394, 395 (9th Cir.) (state felony conviction had been expunged), cert. denied, 464 U.S. 839, 104 S.Ct. 131, 78 L.Ed.2d 126 (1983); United States v. Johnson, 585 F.Supp. 80, 83 (M.D.Tenn.1984) ( ). In United States v. Mayfield, 810 F.2d 943 (10th Cir.1987), this court also recognized the general applicability of Dickerson in somewhat different circumstances. In light of the broad language employed by the Supreme Court concerning the federal gun control statutes generally, we agree that Dickerson cannot be distinguished in the context of section 1202(a)(1). We therefore must conclude that Pennon's guilty plea satisfies the felony conviction requirement of section 1202(a)(1).
Id. Sec. 101(5), 100 Stat. at 450 (18 U.S.C. Sec. 921(a)(20)) .
Congress' decision to adopt expressly the states' definitions of what constitutes a conviction effectively overrules Dickerson. Pennon does not suggest, however, that the statute applies retroactively to his case. See id. Sec. 110(a), (b), 100 Stat. at 460-61. Moreover, the legislative history of the amendments does not aid our interpretation of section 1202(a)(1) as it applies to defendant. For example, neither the debates nor the House report that accompanies the legislation mentions Dickerson, or provides any information regarding Congress' original intent for the gun control laws. The only relevant portion of the legislative history states simply that, under existing law, a "conviction" "is deemed to have occurred upon a guilty plea or finding of guilt by the court, regardless of whether the person is considered to have been convicted under State law." 132 Cong.Rec. S5354 (daily ed. May 6, 1986). Thus, Congress apparently has acknowledged that, prior to its amendments, Dickerson was the controlling law.
Accordingly, Pennon's ...
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