United States v. Clarke

• Decision Date: 11 May 2016
• Docket Number: No. 13–15874.,13–15874.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joseph Peter CLARKE, Bobby Jenkins, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

822 F.3d 1213

UNITED STATES of America, Plaintiff–Appellee

v.Joseph Peter CLARKE, Bobby Jenkins, Defendants–Appellants.

No. 13–15874.

United States Court of Appeals, Eleventh Circuit.

May 11, 2016.

Jonathan Colan, Kathleen Mary Salyer, Wifredo A. Ferrer, Lisette Marie Reid, Ignacio Jesus Vazquez, Jr., U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Neal Gary Rosensweig, Neal Gary Rosensweig, PA, Hollywood, FL, Michael Caruso, Federal Public Defender, Tracy Michele Dreispul, Federal Public Defender's Office, Miami, FL, Michael D. Spivack, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Florida.

Before MARTIN and DUBINA, Circuit Judges, and RODGERS,^* District Judge.

PER CURIAM:

Whether a conviction qualifies under 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, is “determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). Florida's felon-in-possession statute prohibits a person from “own [ing] or [ ] hav[ing] in his or her care, custody, possession, or control any firearm ... if that person has been ... [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1).

A year ago, we certified a question to the Florida Supreme Court asking whether that State treats a guilty plea for a felony with adjudication withheld as a “conviction” for purposes of § 790.23(1)(a). United States v. Clarke, 780 F.3d 1131 (11th Cir.2015) (per curiam) (Clarke I ). We revisit this appeal with the benefit of that court's clear response: “[F]or purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a ‘conviction.’ ”¹ Clarke v. United States, 184 So.3d 1107, 1108 (Fla.2016) (Clarke II ). Based on this clear response, we vacate defendant Bobby Jenkins's conviction under § 922(g)(1) for being a felon in possession of a firearm and remand for resentencing.

I.

Joseph Peter Clarke and Bobby Jenkins appeal their convictions for conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) ; conspiracy to possess with intent to distribute five or more kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 846 ; possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) ; and using and carrying a firearm during and in relation to a crime of violence and possession of a firearm in furtherance of a crime of violence, specifically, the Hobbs Act robbery, id. § 924(c)(1)(A). Both Jenkins and Clarke raise a number of challenges on appeal. We address all but this one in a separate opinion.

Here we address only Jenkins's § 922(g)(1) conviction for being a felon in possession of a firearm. According to the government, Jenkins was a convicted felon because earlier in his life he pleaded guilty to possession of cocaine in Florida. Although Jenkins was found guilty of cocaine possession, the adjudication of that offense was withheld. Jenkins argues that because this adjudication was withheld, his possession-of-cocaine charge does not qualify as a “conviction” under Florida law.

We have held that the “appropriate source of applicable Florida law [for evaluating the term ‘conviction’ in § 922(g)(1) ] would be that surrounding Florida's own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. § 790.23.” United States v. Chubbuck, 252 F.3d 1300, 1304 (11th Cir.2001). In Clarke II, the Florida Supreme Court answered our question about whether a guilty plea with adjudication withheld is a “conviction” under the State's felon-in-possession statute “in the negative.” 184 So.3d at 1108.

In arriving at this conclusion, the Florida Supreme Court reasoned that when a defendant “such as Jenkins ... has his or her adjudication withheld, it is because the trial court has found that the defendant is not likely to engage in further criminal conduct and that justice and the welfare of society do not require that the defendant suffer the penalty imposed by law.” Id. at 1114–15. Now that the Florida Supreme Court has made clear that Jenkins's guilty plea with adjudication withheld is not a “conviction” for purposes of § 790.23(1)(a), his § 922(g)(1) conviction cannot stand.

II.

The Eleventh Circuit has contrary precedent on this issue. In United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987), we said that “one who pleads guilty in a Florida state court and has imposition of sentence withheld, may nevertheless be held to have been ‘convicted’ for purposes of applying federal criminal statutes which punish certain conduct following conviction of a felony.” Id. at 1527. We affirmed that holding in United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989) (per curiam). However, in Chubbuck we recognized that “[i]t has become increasingly clear that perhaps our interpretation of Florida law was either in error or has since changed.” 252 F.3d at 1305.

Generally, we are bound by prior decisions of this Court unless the Eleventh Circuit sitting en banc overrules the prior decision. See Hattaway v. McMillian, 903 F.2d 1440, 1445 n. 5 (11th Cir.1990). However, if “the United States Supreme Court or the Florida courts cast doubt on our interpretation of state law, a panel [is] free to reinterpret state law in light of the new precedents.” Id. Florida's highest court has plainly told us that our interpretation of Florida law in Orellanes and Grinkiewicz was wrong. Therefore, our prior precedent rule must give way to the direction we've received from Florida's highest court. We vacate Jenkins's § 922(g)(1) conviction for being a felon in possession of a firearm and remand for resentencing.

VACATED AND REMANDED.

APPENDIX

Supreme Court of Florida

No. SC15–506

JOSEPH PETER CLARKE, et al., Appellants,

vs.

UNITED STATES OF AMERICA, Appellee.

[February 11, 2016]

LABARGA, C.J.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United States v. Clarke, 780 F.3d 1131 (11th Cir.2015), the court certified the following question to this Court:

Florida law prohibits a person from “own[ing] or ... hav[ing] in his or her care, custody, possession, or control any firearm ... if that person has been ... [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a “convict[ion]”?

Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes it a criminal offense for a person to own or have in his or her care, custody, possession, or control any firearm if that person has been convicted of a felony in the courts of this state.¹ Thus, this Court is asked by the Eleventh Circuit to determine if, under Florida law, a person is “convicted” for purposes of that statute if the person has entered a plea of guilty to a felony offense but adjudication for that offense has been withheld. For the reasons that we explain, we answer the certified question in the negative and hold that for purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a “conviction” under that statute.

BACKGROUND AND FACTS

Joseph Peter Clarke and Bobby Jenkins were codefendants in the United States District Court for the Southern District of Florida. Clarke has no issues in this appeal and his case is not the subject of the certified question. We are concerned here only with the certified question as it relates to Bobby Jenkins. The Eleventh Circuit addressed all other claims appealed by Jenkins and Clarke in a separate opinion, and those claims are not at issue here.² The question now before this Court involves whether Jenkins' prior guilty plea in Florida in 2008, followed by a withhold of adjudication as to the felony offense committed by him, constitutes a “conviction” under section 790.23(1)(a).

In this case, the Eleventh Circuit explained that, after a reverse sting, Jenkins and Clarke were indicted for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute five or more kilograms of cocaine, possession of a firearm by a convicted felon, and using and carrying a firearm in furtherance of a crime of violence. Clarke, 780 F.3d at 1132. The evidence at trial revealed that Jenkins and Clarke were in a vehicle on the way to the purported home invasion robbery and, when confronted by a team of detectives, Jenkins was found with a .40 caliber SIG Sauer handgun. See United States v. Clarke, 600 Fed.Appx. 709, 713 (11th Cir.2015). In Count 3 of the indictment, Jenkins was charged with violating 18 U.S.C. § 922(g)(1), which makes it a federal offense for a person convicted of an offense punishable by a term of imprisonment exceeding one year to possess a firearm or ammunition. Id.

As to the question of whether Jenkins was a convicted felon subject to 18 U.S.C. § 922(g), the Eleventh Circuit explained:

In Count 3 of the indictment, Jenkins was charged with violating § 922(g), which makes it a felony for a convicted felon to possess a firearm. According to the government, Jenkins was a convicted felon because he previously pleaded guilty to possession of cocaine in Florida. However, although there was a finding of guilt, adjudication was withheld. Jenkins argues that because this adjudication was withheld, his possession-of-cocaine charge should not qualify as a “conviction” under § 922(g).

Clarke, 780 F.3d at 1132. What constitutes a conviction for purposes of 18 U.S.C. § 922(g)(1) “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20).³ “[T]he ... appropriate source of applicable Florida law would be that...