United States v. Saiz

• Decision Date: 18 August 2015
• Docket Number: No. 14–2151.,14–2151.
• Citation: 797 F.3d 853
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gabriel Anthony SAIZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

797 F.3d 853

UNITED STATES of America, Plaintiff–Appellee

v.Gabriel Anthony SAIZ, Defendant–Appellant.

No. 14–2151.

United States Court of Appeals, Tenth Circuit.

Aug. 18, 2015.

Aric G. Elsenheimer, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, NM, for Appellant.

David N. Williams, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief), Office of the United States Attorney, Albuquerque, NM, for Appellee.

Before LUCERO, TYMKOVICH, and MATHESON, Circuit Judges.

Opinion

TYMKOVICH, Circuit Judge.

Federal sentencing guidelines increase the presumptive sentences of persons who commit certain federal firearms offenses while also “under indictment” for other state or federal offenses. Gabriel Saiz was convicted on two counts of unlawful firearm possession. See 18 U.S.C. §§ 922(k), 924(a)(1)(B) ; 26 U.S.C. §§ 5841(a), 5845(a)(3), 5861(d), 5871. He was given an enhanced sentence because at the time of his offenses he was on probation for several state crimes in New Mexico. After he had pleaded guilty to the state charges, they were conditionally discharged under state law, which meant that if he completed a term of probation they would be dismissed.

He argues that he was not eligible for an enhanced sentence for purposes of the United States Sentencing Guidelines (USSG) because being subject to a conditional discharge does not count as being “under indictment.” We disagree and conclude that an offender subject to conditional discharge is still under indictment until the condition is met—completion of the term of probation.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. Background

Saiz pleaded guilty to burglary, larceny, and battery in a New Mexico state court in 2011. At sentencing the court entered a conditional discharge order, under which Saiz was placed on probation without being adjudicated guilty of the crimes. See N.M. Stat. Ann. § 31–20–13(A).¹ Under New Mexico law, if the defendant subject to conditional discharge violates the terms of probation, the conditional discharge is withdrawn and the court can impose a finding of guilt. Id. § 31–20–13(B).² But completing the period of probation results in “the eradication of the guilty plea or verdict and there is no conviction.” State v. Fairbanks, 134 N.M. 783, 82 P.3d 954, 958 (App.2003). Saiz's conditional discharge specified that “without an adjudication of guilt, further proceedings will be deferred and the charges will be discharged after three (3) years on the condition that Defendant ... successfully complete supervised probation for a period of three (3) years.” R., Vol. 1 at 74.

In 2012, while still on state probation, Saiz committed the federal offenses at issue in this case. He pleaded guilty. At sentencing the district court held Saiz qualified as a “prohibited person” within the meaning of § 2K2.1(a)(4)(B) of the Guidelines. Prohibited persons include anyone described in 18 U.S.C. §§ 922(g) or 922(n). USSG § 2K2.1 cmt. n. 3. Section 922(n) includes “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year.”³ The statute elsewhere defines “indictment” to include “an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted.” 18 U.S.C. § 921(a)(14).

Over Saiz's objection, the district court reasoned that he was “under indictment” for the state crimes as long as he was subject to the terms of conditional discharge and, therefore, had been under indictment when he committed the federal crimes in 2012. After adding two sentencing enhancements and a reduction for acceptance of responsibility, the district court computed a Guidelines range of seventy to eighty-seven months' imprisonment. Had Saiz not qualified as a prohibited person, his resulting Guidelines range would have been fifty-seven to seventy-one months. The court departed downward, sentencing Saiz to sixty months in prison.

II. Analysis

Saiz challenges the district court's conclusion that he was a “prohibited person” under the Guidelines. He argues that a defendant subject to a conditional discharge order in New Mexico is not “under indictment” within the meaning of § 922(n). He asserts that an indictment dissipates when the defendant pleads guilty in state court and the court imposes probation and conditional discharge.

A defendant who receives conditional discharge under New Mexico law is “neither ‘adjudicated guilty’ nor ‘convicted.’ ” State v. Herbstman, 126 N.M. 683, 974 P.2d 177, 183 (App.1998) ; see also State v. Harris, 297 P.3d 374, 375 (N.M.Ct.App.2013) (holding the “general rule [is] that a conditional discharge order [does] not serve as a ‘conviction’ unless a particular statute so state[s]”). “[C]harges are dismissed” once a defendant subject to a conditional discharge order completes probation. Fairbanks, 82 P.3d at 957. The charges in an indictment are not extinguished upon the guilty plea or verdict. Instead, they remain in suspension until the defendant completes his term of probation. If the defendant violates the conditions of probation, the court is entitled to “enter an adjudication of guilt” on the charges without any other formal process. See N.M. Stat. Ann. § 31–20–13(B). The language of the order imposing Saiz's conditional discharge is consistent with these principles, affirming that “without an adjudication of guilt, ... the charges will be discharged” after completing probation. R., Vol. 1 at 74. Thus, Saiz remained under indictment in New Mexico at the time he committed the federal firearms offenses at issue here because the charges were never dismissed.

Other jurisdictions have reached the same conclusion. Interpreting an analogous Texas statute,⁴ the Fifth Circuit held that a “defendant who is on probation pursuant to a deferred adjudication of a felony charge remains, as a matter of law, under indictment” within the meaning of § 922(n). United States v. Valentine, 401 F.3d 609, 611 (5th Cir.2005). The court reasoned that the statutory scheme “leaves a defendant with a ‘pending charge’ ” and “without an adjudication of guilt or ‘conviction.’ ” Id. at 615. Similarly, a district court persuasively concluded that because a deferred sentence in Oklahoma “does not end criminal proceedings” and “leaves a charge pending,” the defendant remains “under indictment” until completing the deferred sentence. United States v. Larkins, No. 13–CR–172–CVE, 2013 WL 6498068, at *5 (N.D.Okla. Dec. 11, 2013) (unpublished). And the Virginia Supreme Court held a defendant who was subject to similar conditions was “under indictment” because she had been “neither convicted nor acquitted” of her conditional charge. Maldonado–Mejia v. Commonwealth, 287 Va. 49, 752 S.E.2d 833, 836 (2014). As with Saiz, the entry of her guilty plea to the conditional charge was “not a formal adjudication of guilt.” Id.

Saiz's argument is not without support, however. He points to United States v. Hill, 210 F.3d 881 (8th Cir.2000). In that case, the Eighth Circuit considered a Missouri law under which “criminal proceedings [can be] held in abeyance” after the defendant pleads guilty and the court will “suspend[ ] the imposition of prison time” during a term of probation. Id. at 883. The court retains “jurisdiction to impose sentence if [the defendant violates] the terms of his probation.” Id. The Eighth Circuit concluded a defendant is not under indictment while subject to these conditions because “[u]nder Missouri law, ‘the primary purpose of an indictment or information is to give general notice to the defendant of the charge against him.’ ” Id. at 884 (brackets omitted) (quoting State v. Higdon, 774 S.W.2d 498, 500 (Mo.Ct.App.1989) ). And once the defendant admits to the counts in the indictment by entering a guilty plea, the indictment's “primary function” is satisfied and it is “extinguished.” Id. Saiz notes that in New Mexico, as in Missouri, the purpose of an indictment “is to furnish the accused with such a description of the charge against him as will enable him to prepare a defense.” State v. Stephens, 93 N.M. 458, 601 P.2d 428, 431 (1979), overruled on other grounds by State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995).

The district court distinguished Hill, seeing a difference between conditionally dismissing charges under New Mexico law and suspending a sentence under Missouri law. The court suggested that in the former circumstance, the charges themselves are contingent on the defendant's future conduct, while in the latter circumstance, charges are no longer pending and the defendant's future conduct only determines whether a sentence is actually imposed. But as the Eighth Circuit explained, “the [Missouri] court could fully discharge [the defendant] from its jurisdiction without entering a judgment of conviction” after he completed probation. Hill, 210 F.3d at 883 (citing State v. Bachman, 675 S.W.2d 41, 45 (Mo.Ct.App.1984) ). Thus, the Missouri statute and the New Mexico statute are more or less identical.

Nonetheless, we disagree with Hill. Although it is true that an indictment's purpose is to inform a defendant of the charges against him, we find no support for the proposition that a defendant is no longer subject to an indictment after he pleads guilty and before he is adjudged guilty. To the extent that a conditional discharge puts off a finding of guilt, it simply prolongs the life of the indictment. A holding to the contrary would be incongruous with the requirement that “charges” are only “dismissed” when the defendant completes the probationary period, Fairbanks, 82 P.3d at 957, as well as the fact that the defendant is never convicted unless he violates the terms of release, Herbstman, 974 P.2d at 183. If the indictment dissipated at the time of the guilty plea, there would be no more charges to dismiss and no chance of a future conviction.⁵ The statutory...