F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 8 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-4029
PAUL JAY DELL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:01-CR-00552-PGC)
Submitted on the briefs: *
Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United
States Attorney for the Plaintiff-Appellee.
Steven B. Killpack, Federal Public Defender, and Scott Keith Wilson, Assistant
Federal Public Defender, for the Defendant-Appellant.
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
*
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. The case is ordered submitted
without oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
In this direct criminal appeal, Paul Jay Dell argues that the district court
erred in calculating his sentencing guideline range by counting a plea in abeyance
as a prior conviction for purposes of U.S.S.G. § 2K2.1(a)(4)(A). We exercise
jurisdiction pursuant to 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291 and
AFFIRM.
I
In October 2002, Dell was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and possession of a stolen firearm in
violation of 18 U.S.C. § 922(j). Following these convictions, the probation office
prepared a presentence report which included a 1996 drug charge against Dell as a
prior felony conviction for the purposes of calculating his base offense level
under United States Sentencing Guideline 1 (“U.S.S.G.”) § 2K2.1(a)(4)(A). At the
sentencing hearing, Dell objected to the presentence report, contending that his
base offense level was incorrectly calculated. Specifically, Dell argued that his
1998 plea in abeyance to the 1996 state drug charge should not be considered a
1
The 2001 Sentencing Guidelines were argued in front of the district court
for this case, though the presentence report refers to the 2002 guidelines. Our
review finds that the sections and notes referred to in this opinion are identical in
the two editions; however, because the district court apparently relied upon the
2001 edition, all references will be to the 2001 Sentencing Guidelines.
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conviction under § 2K2.1(a)(4)(A) because he successfully completed court-
ordered treatment and because the state court dismissed the charge at the
conclusion of his treatment. The district court denied Dell’s objection, reasoning
that § 2K2.1 Application Note 15 directs a sentencing court to include offenses
that are countable toward a criminal history category in calculating the applicable
offense level. Accordingly, it sentenced Dell to sixty-three months of
imprisonment and a fine; this appeal followed.
II
We review a district court’s interpretation of the Sentencing Guidelines de
novo, United States v. Fortier, 180 F.3d 1217, 1225 (10th Cir. 1999), interpreting
the Sentencing Guidelines “as if they were a statute,” and following their
language where it is clear and unambiguous, United States v. Tagore, 158 F.3d
1124, 1128 (10th Cir. 1998). We consider the commentary included with the
Guidelines “authoritative unless it violates the Constitution or a federal statute, or
is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v.
United States, 508 U.S. 36, 38 (1993).
Sentencing courts look to § 2K2.1 for guidance in determining the proper
base offense level to apply to an unlawful firearm possession conviction.
Section 2K2.1(a)(4)(A), which the district court applied in this case, authorizes a
base offense level of twenty if a defendant “committed any part of the instant
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offense subsequent to sustaining one felony conviction of . . . a controlled
substance offense.” (emphasis added). The parties do not dispute that Dell’s 1996
drug charge is a “controlled substance offense” under the guideline. Thus, we are
left to decide only whether Dell’s plea in abeyance constitutes a felony conviction
for sentencing under § 2K2.1.
Relying on § 2K2.1, Application Note 5, Dell argues that we should look to
Utah state law to define “conviction.” Application Note 5 states that for the
purposes of § 2K2.1 generally, a felony conviction consists of “a prior adult
federal or state conviction for an offense punishable by death or imprisonment for
a term exceeding one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence imposed.” U.S.S.G. §
2K2.1, cmt. n.5 Seizing upon the words “state conviction,” Dell argues that
because Utah law does not consider a plea in abeyance a state conviction, 2 see,
e.g., Utah Stat. § 77-2a-1, Utah Stat. § 77-2a-4, his 1996 drug charge did not
2
Even if we were to accept Dell’s argument that we must look to state, as
opposed to federal, law to define the term conviction in this context, we still face
an ambiguity, as Utah law does consider a plea in abeyance a conviction under
certain circumstances. Compare Utah Stat. § 77-2a-1 (defining a plea in abeyance
as “an order by a court . . . accepting a plea of guilty . . . but not, at that time,
entering judgment of conviction against him”) with § 77-38a-102(8) (including a
plea of guilty as a conviction for the purposes of the Crime Restitution Act); see
also, Gorman, 312 F.3d at 1165 (referring to Utah’s plea in abeyance: “upon entry
of a guilty plea and its acceptance, a defendant is convicted under Utah law, but
the full consequences of conviction are not visited upon [him]”).
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result in a “conviction,” and therefore, § 2K2.1(a)(4)(A) should not have been
applied to him. We disagree with this conclusion.
United States v. Hines, 133 F.3d 1360, 1364 (10th Cir. 1998), though not
controlling here, is instructive. Hines considered the meaning of “expunged” in
the context of § 2K2.1(a)(4)(A), following a defendant’s § 922(g)(1) conviction.
In Hines, the defendant argued that his conviction, expunged under Arkansas law,
should not be counted as a conviction for purposes of sentencing.
Notwithstanding the fact that Application Note 10 explicitly stated that “expunged
convictions are not counted” in computing a defendant’s criminal history
category, U.S.S.G. § 4A1.2, cmt. n.10., we included his conviction, reasoning that
we were not bound by “the varied nomenclature among jurisdictions.” Id. at
1363. To the contrary, we stated explicitly that “a state’s use of the term
‘expunge’ is not controlling in determining whether a conviction is properly
included in calculating a defendant’s criminal history category.” Id.
Similarly, in the instant case, § 2K2.1, Application Note 5 defines a felony
conviction for the purposes of this guideline as one that need not be called a
felony or result in incarceration, thus casting doubt upon Dell’s argument that a
state conviction must be defined in reference to state law. Accordingly, we reject
Dell’s invitation to import Utah law into this application note. Recognizing that
the one of the purposes of the Sentencing Guidelines was to promote uniform
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sentences, see United States v. Koon, 518 U.S. 81, 113 (1996); United States v.
Diaz-Bonilla, 65 F.3d 875, 877 (10th Cir. 1995), we conclude that reliance on
state nomenclature in this context would undermine uniformity. Therefore, as in
Hines, we are not bound by varied state definitions in determining what
constitutes a conviction for the purposes of applying § 2K2.1(a)(4)(A).
Although Application Note 5 addresses felony convictions for the purposes
of § 2K2.1 generally, it alone does not resolve the issue before us. We must also
look to Application Note 15, which explains that when applying § 2K2.1(a)(4)(A),
“felony convictions that receive criminal history points under § 4A1.1(a), (b), or
(c)” are counted. U.S.S.G. §2K2.1, cmt. n.15. Thus, § 2K2.1 explicitly directs a
sentencing court to the criminal history guidelines under § 4A1.1 to determine the
appropriate base offense level.
Section 4A1.1 lists specific factors and the associated number of criminal
history points that a sentencing court should add to determine a defendant’s
appropriate criminal history category based upon his or her prior record of past
criminal conduct. Under § 4A1.1(a), (b), or (c), one to three criminal history
points are added to the defendant’s criminal history category for “each prior
sentence.” Dell candidly acknowledges that his plea in abeyance constitutes a
sentence under § 4A1.2(f) and therefore receives one criminal history point under
§ 4A1.1. See also, Gorman, 312 F.3d at 1167. We agree, noting that § 4A1.2(f)
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states that a “diversionary disposition resulting from a finding or admission of
guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a
sentence under § 4A1.1(c) even if a conviction is not formally entered.”
(emphasis added).
Because Dell’s plea in abeyance receives one criminal history point under
§ 4A1.1(c), and because § 2K2.1 explicitly relies upon the criminal history
guidelines to direct a sentencing court to the appropriate base offense level, we
conclude that the district court properly counted Dell’s plea in abeyance as a
conviction under § 2K2.1(a)(4)(A) in determining Dell’s base offense level. We
find the plain language of the sentencing guidelines and the accompanying
commentary to be dispositive, directing the conclusion that Dell’s plea in
abeyance count as a conviction for the purpose of determining his correct base
offense level under § 2K2.1(a)(4)(A).
In analyzing this claim, we also note that at least two other circuits, the
Fifth and the Eleventh, have concluded that deferred adjudications, such as the
plea in abeyance here, constitute felony convictions for the purposes of § 2K2.1.
See United States v. Fernandez, 234 F.3d 1345, 1346 (11th Cir. 2000); United
States v. Stauder, 73 F.3d 56, 57 (5th Cir. 1996). Additionally, under § 4A1.1,
prior sentences are only counted to increase criminal history points, and in this
instance, to increase a defendant’s base offense level after an adjudication of
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guilt. U.S.S.G. § 4A1.1. Application Note 9 of § 4A1.2 specifically explains that
the counting of diversionary dispositions as sentences “reflects a policy that
defendants who receive the benefit of a rehabilitative sentence and continue to
commit crimes should not be treated with further leniency.” U.S.S.G. § 4A1.2,
cmt. n.9.
Accordingly, we AFFIRM.
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