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LEP_T`.SF:LM¥; 0£ N\R\ILXNG- » 1\9\€,[¢\3\ cU‘\ \"9\\\ 99\09*9\ '99\).?, and co{fec}¥€,& czon 1>`9 +9\£ _ 90{?, o\v\ \AU\S ma\\€b\ go€>‘\'w:)€, Pr€,[ac\\)§, ‘9'9\fou\ 9\ ‘99\¢ \l S. § 905~90» SeNu,-Q, `¢>r\ 1991-5 dot 0'9 Tu\~` O\S 1 “‘0 “99~( 9)~@\0\1" '\'1'§9€,<)\' `\>'a'r9°\'e$"'~"""`""‘ *"" ""“""“ Cou.¥~'¥ <>F cLL\L\I\\lkL HPE¥\\_$ .F<>K THE 5111"1\§_01-‘ TE>U\S kTTN comm 'LLEM. lL\>z\ kc 113941 ?, 0 P>O\( 1230% dwich mmxo\\i ""L(Mgrm",\;"~r'g\[k§~ '~'¢"@~L\~\“~" ' " ' MLU\Q coum\\ oimv§:cv-c,mc:v-m)_,§ ¢\TFM',. wqu , <,LE¢L\.¢ LFEL~:¢§A (’ITLQ. 135 N_ INQuSTo:L§L b\_\cf>. _QNLL!§S'} TEMS ;`16207 _ 1 ‘N\\\\v, \g, ')M,_ ”Pz#m%?$ (ooo§ [p\-@S"\'ay\l<) f w 111 1111 '1'*.;|' ‘Page 1 017 N>PEMM»<` `E l Westlavv ,. ,_ ' , . j j ,, . *pgrg/ofr>_riming; Aug 04, 2009 KEYCITE l> `.U S. v. Staliings, 301 F.3d 919 (8th Cir. (Neb. ) Aug 23, 2002) (NO. 01-3800) Citing References: limited to Tenth Circuit Ct. App. ., New Mexico, Other Court, selected documeilt types , Positive Cases (U. S. A.) ** Cited C ` y ' l U.' S v.` Sierra'-Estrada, 248 F<,d ,.Appx 973, 987 (I_Oth Cir. (Utah). Oct Ol, 2007) (Tab_le, text m _ - v WESTLAW, NO. 05-4086, 05-411.7) " HN: 3 (F.3d) l'l _ _ 2 U. S. v. Alvarado, 458 F. Supp. 2d 1266,1268+ (D.N.M. Ju120, 2006) (NO. CR 05 377 BB) HN: 3 (F.3d) _ 1 © 2009 Thomson Reuter's. All.rights reserved. kHv\' //\xrn]n') “n:\¢\Hnur nom /»1~:“4-/.“~'“+,~4.¢.`.-..~. ..,.._- 0..-_._("1 1.' L 0__- _DL ‘rrr'h\ 11 rv n n . n ¢ n ` v n l . ,Annn 1 \\. APPB\_LM §tHI-BIT We'stlévv. 301 F.3d 919 '301 F.3d 919 (Cite as_: 301 F.3d 919) United'States Cornt of Appeals, '~ b Eighth Circuit. . UN'ITED STATES of America, Appellee, v. - Pablo STALLINGS, Appellant. No.l 01-3800. Submitted: May 13,' 2002. v Filed: Aug. 23, 2002. Defendant was convicted i_n the United States Dis- trier Court for the District of Nebraska,' Lyle E. Strom, J., of conspiracy to possess with intent to distribute cocaine base, Defendant appealed. The Court of Appeals, Melloy, Circuit Judge, held that: (1) defendant received timely notice of govem- ment's intent to seeklsentencing enhancement based upon defendant's prior convictions; (2) prior felony drug conviction could not be used to enhance de- fendant's sentence; and (3) evidence was sufficient to support conviction _ _ . ry . ~- ~ \ ,*'. 0 Affxrmed m part, reversed rn part and remanded for resentencing . , ' W'est Headixotes .. 111 sentencing and Pnni`shinenr`sson €>.:.>1366 350H Sentencing and Punishment 350HVI Habitual and Career Offenders 350HVI(K) Proceedings 350Hkl363 Recidivist or n'Habitual Of- fender Charge tuting Proceedings Most Cited Cases . ` To satisfy the procedural and notice requirements of filing an information for purpose of sentencing ‘ enhancement based upon defendant's prior convic- tions, the government must file its information be- , fore jury selection begins, thus allowing the defend- 350Hk1366 k Tnne for Filing or Insri- il u E l Page 2 of7 Page l `,ant ample time to go to trial, and to plan his trial strategy with full knowledge of the consequences of a potential guilty verdict. Comprehensive Drug Ab- use Prevention and Control Act of 1970, § 4ll(a)(l), 21 U. S. C. 'A§ §.85](a)(1) [2| Sentencing and Punishment 350H @1361 350H Sentencing and Punishment 7 350HVI Habitual and Care;."er Offenders 350HVI(K) Proceedings ' ~ 350Hkl36l k. Notice of Intent to Seek Enhancement. Most Cited Cases _ Defendant received timely notice of govemment's intent to seek sentencing enhancement based upon defendant's prior convictions, pursuant to notice and procedural requirements of statute allowing such enhancement, in prosecution for conspiracy to possess with intent to distribute cocaine base, where government filed its notice a few days prior_ to the commencement of defendant's trial. Cornpre- , hensive Drug Abuse Prev_ention and Cont:rol Act of _ 1970, § 411(a)(1), 21 Us_. CA. § 851(a)(1) [3] Sentencing and Pu`nish_ment 350H €7-==>1330 350H Sentencing and Punishment 350HVI Habitual and Career OH`enders ' 350HVI(I) Subsequent Circumstances Af- fecting Prior Adjudication' ' 350Hkl330 k; In General. Most Cited Sentencing and Punishment 350H W1338 350H Sentencing and Punishment 350HVI Habitual and Career Offenders _ 350HVI(I) Subsequent Circumstances Af- i`ecting Prior‘ Adjudication 350Hk1338 k. Matters Related _to Sen- tence. Most Cited Cases Prior felony drug conviction could not be.used to enhance defendant's sentence for conspiracy to pos- © 2009 Thomson Reuters/_West. No Claim to Orig. US Gov. Works. hffn_‘//wel'x?. W¢=.Qtl:aw nhm/nrinf/nrintch-P.nm ncnv‘)c\)=§nlif,?rnrR=HTI\/IT F,?r+`n= +n“_,Q'H-`.M;___NT,‘\ 9//1/')[\{\0` kro;uor~i § ~ ' Page 3 of7 ann m 310 301 F.3d 919 ‘ ~ d Pagcz 301 F.3d 919 (circ' ace 301 F.3d 919) sess with intent to distribute cocaine base, where prior conviction was never properly entered against defendant; although defendant entered plea of nolo contendere in California state court to prior offense, sentencing documents showed that he was sen- tenced to probation, but imposition of sentence was suspended, and his probation was not revoked, _pre- cluding entry of judgment against defendant under California law. Comprehensive Drug Abuse Pre- vention and Control Act of 1970, § 411(a)(1),21 U..S C. A § 851(a)(l); West's Ann. Cal.Penal Code § . 1203 2. -,. [4] Sentencing and Punishment 350H €W480 350H Sentencing and Punishment 350HII Sentencing Proceedings in General 350H11(J) Stay of Execution of Sentence 350Hk480 k. Effect. Most Cited Cases sentencing and Punishment 350H €>~§=>=1931 ' 350H Sentencing and Punishment 350HIX Probation and Related Dispositions `- ` 350HIX(~F) Disposition of OH`ender ` ` 350Hkl93l k. Probation Withou__t Sen-_~; tence. Most Cited Cases Under California law, when a sentencing court _- ` grants probation after a conviction, it may_ suspend the imposition of sentence, in which case no judg- ment of conviction is trendered, or it may impose ,. sentence and order its execution to be stayed, in which case a judgment of conviction is rendered. West's Ann.Cal.Penal Code § 1203.2. 151 criminal Law 110 €==:>1144.13(3) 'llOCriminalLaw '_ ‘ ' \,_ ' 110XXIV Review ` l 10XXIV(M) Presumptions 110k1144 Facts or Proceedings Not Shown by Record l lOkl 144.13 Sufficiency of Evidence - 1 1(_)k1144.13(2) Construction of Evidence 110kll44. 13(3) k Construction in Favor of Government, State, or Prosecution.» Most Cited Cases ‘- .- ~ ~i»: criminal Law 110 @1144;"13151 ' ' ' 110 criminal Law 110XXIV Review l lOXXIV(M) Presumptions llOkl 144 Facts or - Proceedings Not Shown by Record 110k1144 13 Suf`ficiency of Evidence . 110kl 144.13(5_) k. lnferences_ or " Deductions from Evidence. Most Cited Cases 'i`he Court of Appeals reviews sufficiency of the evidence challenges in the light most favorable to the verdict, giving the government the benefit of all reasonable inferences . 161 conspiracy 91 €`>=47112) 91 Conspiracy 9111 Criminal Responsibility 9 lII(B) Prosecution 91k44 Evidence ' 91k47 Weight and Sufficiency 91k47(3) Particula`r Conspiracies 91k47(12) k. Narcotics and Dan- gerous Drugs. Most Cited Cases Evidence was sufficient to support defendant's con- viction for conspiracy to possess with intent to dis- tribute cocaine base; witnesses testified that defend- ant shipped cocaine through the mail andl arranged for others to deliver cocaine base on his behalf, wiretap evidence linked defendant with admitted drug .,distributors and physical evidence admitted included scales, razors, and large amount of cash seized from storage locker rented to defendant.' Comprehensive Drug Abuse Prevention and Con- trol Act of 1970, § 401(b), 21 U.S.C.A. § 84l(b). [7] -Courts 106 €==>90(2) 106 Courts 1061I Establishment, Organization, and Proced- ©' 2009 nicmscn chicrs/Wcsi._Nc claim ic orig. Us ch. Wcrks. 1.++“.//..,°1.0 .,mnn,.." nnm/,...:.‘+/....;..i.'.c..°.\m ..m..,r)...,_o..r;+ Q,....a_r_r'm\ n 1: 1).4"..._ c,".. o.:¢;.,._m,\ `T 0 //1 /"?f\nn inventor 301 F.3d 919 301 F.3d 919 (Cite as: 301 F.3d 919) 10_6II(G) Ru_les of Decision `.H'."` " ' v 106k88 P.re_vious Dec_i_s_ior`is as Cont_rolling '. or as Precedents 1 -' ' _ 106160 Decisions of S_ame Court or Co-Ordinate Court . ~ ' ' lO6k90(2) k .Number of Judges Concurring in Opinion, and Opinior'i by Divided Court. Most Cited Cases _ Only the Court of Appeals en banc can overrule an earlier panel decision. *920 Michael T Levy, argued, _Omaha, NE, for ap- pellant Maria R. Morar_i, argued, Omaha, NE, for appellee. Bcfcrc McMiLLiAN, ‘FAGG, and MELLoY, cir- cuit Judges. MELLoY, circuit indch Pablo Stallings was convicted of conspiracy to pos- sess with intent to distribute cocaine base, The gov- _ernment filed an_ information seeking to enhance lStallings's sentence to life imprisonment The dis- trict court, relying `_up_o_ii the convictions Set out in 'the notice, imposed the enhancement and sentenced Stallings to life imprisonment Stallings now ap- peals his conviction and sentence, We affirm the t conviction but reverse and remand the sentence im- posed. I. ; I [l][2] Stallings challenges his enhanced sentence contending the procedure and notice were defective and the two prior felony convictions were. not proved beyond a reasonable doubt. “Because resol- ution of this claim requires us to interpret the stat- ute, we review de novo the district court's use of the two prior convictions for enhancement purposes.” United States v. Johnston, 220 F.3d 857, 860 (8th \E:“ Ex\l:?%:\ . jtc\ Page' 3 ,-Cir 2000). We first consider the procedural and no- tice challenges to the § 851(a) inforrnation. `A pre- requisite for sentence enhancement under 21 U S. C. § 841(b) i_s a timely filed information detailing the prior convictions the government intends to rely upon for sentence enhancement See21 U..S C. § 851(a)(1). To satisfy the procedural and notice re- quirements of the § 851(a) information, “the gov- ernment must file its information before jury selec- 'tion begins, thus allowing the defendant ‘ample time [...] to go to trial, and to plan his trial strategy with full knowledge of the consequences of a po- tential guilty verdict.’ ” ~ *921United States v. Robinson, 110 F.3d 1320, 1327-28 (8th Cir.1997) (quoting Unitecl States v. Johnson, 94'4 'F.2d 396, 407 (8th Cir.1991)). The government filed the § 851(a) information on Friday, July 13, 2001. Stallings's trial commenced on Tuesday, July 17, 2001. Stallings's procedural contentions are without . merit. Stallings received timely notice of the gov- ernment's intent to seek the § 851(a) enhancement before trial and had an opportunity to challenge the convictions before the sentence was irnposed. 21 U. S. C. § 851(b), (c); see also Robinson, 110 F. 3d at 1328 (f`iling of. information minutes before voir dire satisfied requirements of § 851(a)(l)) :`[3] 5tallings contends the government failed to prove the two prior convictions beyond a reason- able -.doubt The two predicate convictions offered by the government for enhancement purposes were a 1993 California conviction and a 1987 Nevada conviction, At sentencing, defense counsel entered a valid objection to the prior convictions on the basis of “identity, relevance, and foundation.” Therefore, under 21 U.S.C. § 851(c)(1), the govern- ment had the burden to prove the two prior felony drug convictions beyond a reasonable doubt. Stallings does not challenge on appeal .t_he use of the 1987 Nevada conviction, However, he` raises a variety of challenges to the use of the 1993 Califor- nia conviction, Based _up__on the record, _we conclude iudgment was never properly entered against © 2009 Thomson _Reuters/West. No C_lairn to Ori`g. US Gov. Works. l'xffn'//\xn=-l\') \x/pcfln\v an/n_rirtf/nrir\feh‘pam ncnv‘)e\r=§r\lif,?ran=T-ITl\/[T p,?r{"rr= +nn,?ri~f~`nn=`i\ln Page 4 of 7 ' Q/A/")(\DO APOFM‘€\K\( (E ' 4 Page 5 of 7 Eiili%rr_ E*` $Ui-\ 301 F.3d 919 301 F.3d 919 _ _ (cite as: 301 md 919) Stallings in connection with the California convic- tion, and, consequently, reliance on that convic_tion for purposes of 2-1 U.S.C. § 84l(b)(1)(A)(viii) sen- tence enhancement was improper."`"' FNl. Stallings made a valid objection at sentencing to his California conviction The grounds relied upon in this opinion to invalidate the sentence were raised through _ questioning by Judge McMillian at oral ar- gument. The parties were then given the opportunity to file supplemental briefs on 'the issue of whether there was ever a judg-_ ment entered by the California courts. The court is now in receipt of the supplemental briefing on that issue. At the sentencing hearing, the government intro- duced a. number of exhibits in an attempt to prove 'up the California conviction, These exhibits show that the defendant was charged with felony posses- sion for sale of cocaine base in violation of section 11351.5 of the Health and Safety Code of Califor- nia. The defendant entered a plea of nolo con¢ tendere. He was sentenced to three years probation4 subij to the serving of 78'days"in the county jail ansLoLde_redL_paLrestitution and court costs. The sentencing documents also show that “imposition of sentence was suspended;” Subsequently1 a revoca- tion of probation proceeding was commenced in the Superior Court of California, County of Alameda. However, the record made at the sentencing hearing S.indicates no further action was taken on the Califor- nia probation officer's revocation recommendation The remaining reference to the California convic- tion is in an Oregon Presentence Report, introduced into evidence at the sentencing hearing, which . states that California “revocation proceddings are unlikely given Stallings's conviction iii Federal Court.”FNZ FN2. The referenced federal court convic¥ tion is a 1995 conviction for Interstate Travel in Aid of a Crime of Racketeering - Page 4 prosecuted iri the United States District ' Court for the District of Oregon. f The final disposition of the California conviction resulted in Stallings receiving probation with the imposition of sentence suspended._ Although proba- _ tion revocation proceedings were commenced by the probation office, the California court neither re- Voked probation nor did it pronounce judgment SeeCal.Penal Code § 1203.2(b); see also *922People v. Smith, 12 Cal.App.3d 621, 90 Cal.Rptr.’ 811, 814 (1970) (“It is equally clear that probation was revoked and a bench warrant was issued so that judgment and- sentence could be im~' posed, imposition thereof having been suspended approximately three years earlier....”). if imposition of sentence was suspended, and probation was nev_- er revoked, then there is no judgment entered against the defendant As explained in an early California Supreme Court case: When_ judgment is not pronounced and further pro- ceedings are suspended, there is no judgment against [the defendant]. His activities are limited only by the terms o_f the probationary order, un- der the supervision of the probation officer. Upon revocation of probation the defendant is entitled to a hearing and to be sentenced, before he can be committed to the appropriate institution.' Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182, 187 (1959) (citation omitted); see also People v. Pennington, 213 Cal.App.3d 1'73, 261 ‘Cal.Rptr. 476, 4_78 (1989) (“Where no sentence is imposed at the time probation is granted, a subsequent decision terminating probation requires that judgment be pronounced.”(citing Cal.Penal Code § 1203.2, subd. (c))); United States v. Qualls, 108 F.3d 1019, 1023 (9th Cir.l997) (“There is no judgment pending against a probationer when the court withholds im- position of judgment and suspends further proceed- ings. Because the California court granted [the de- fendant] probation and suspended further proceed- ings, [the defendant] does not have a final or ©'2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. i.“._.//.-.,.i.n .-..\..¢i,.--. ,.,`.../....:..¢/....:..t,`t..,.,.w. ,.,....,o,..,_o..i;¢p,....n_u`"i~it‘,ir`1": p.i;._ t,`.` p,;rw.‘_\r,. ________`,i 3 , o/A /onnn \ witnesses “F_' - _ Page60f7 Eit\l’i_t>:r‘t "£‘ §tc\ 301 F.3d 919 301 F.3d 919 (Cite as: 301 F.3d 919) pending judgment against him - in - Califor- »nia ’-’(intemal citations omitted)), aj"d en banc 140 vF. 3d 824, vacated and remanded, 525 U. S. 957,~` 119 S Ct 398 142 L. Ed. 2d 323~, rev’d on other grounds, 172 F 3d 1136. t _ - [4] ln United States v Robinson, 967 F 2d 287 (9th Cir 1992), the Ninth Circuit concluded that under California law a probation order is not a “judgment” when the imposition of sentence is sus- pended, See id. at 293. The Ninth Circuit noted that California law provides: “[W]hen a sentencing court grants probation after a conviction, it may suspend the imposition of sentence, in which case no judgment of conviction is i‘endered, or it may ‘ impose sentence and order its execution to be` stayed, In _the latter case only, a judgment of con- viction is rendered.” Id. (citing People v. Arguello, 59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6 (1963)); see also United Slates v. Haggerty, 85 F.3d 403, 406 (8th Cir.l996) (citing Robinson for the proposition that a` probation order is not a judg- ment). In Stallings's case, there was no judgment of conviction entered and the appropriate time for re- `vokin'g his probation and entering judgment has lapsed. See Cal. Penal Code § 1203 3(a) (“The4 court shall have authority at any time during the term of probation to revoke, modify,' or change its order of suspension of imposition or execution of sen- tence... .;”) see also In re Perez, 65 Cal. 2d 224, 53 Cal.Rptr.' 414, 418 P.2d 6, ll (1966) (“If probation was timely revoked, judgment could be imposed at any time thereafter.”; Smith, 90 Cal.Rptr. at 814 (“It is also settled that an order revoking probation, to be valid, must be made within the period fixed in the order of probation. If not revoked within that period, the probation terminates automatically on. -. the last day. ”). Accordingly, no valid judgment has been entered against Stallings and, therefore, the enhanced sentence imposed in reliance upon the California conviction was improper. II. Page 5 15][6] Stallings also contends the evidence was in- sufficient to support his conviction We review suf- ¥`ficiency of the evidence challenges in the light most favorable to the verdict, giving the govemment*923 vthe benefit of all reasonable inferences United States v Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir. 2001). Under this standard, we find Stallings's contentions without merit. Witnesses testified that Stallings shipped cocaine through the mail and arranged for others to deliver crack on his 'behalf. The government also introduced wiretap evidence linking Stallings with admitted drug dis- tributors and physical evidence including two scales, an Exacto knife, a razor, and a large amount of cash seized from a storage locker rented to 4 Stallings. Stallings contends that the drug dealers testifying against him were motivated to reduce their sentences through cooperation with the gov- ernment. Issues of witness credibility and bias, however, were resolved by the jury and we do not reconsider these issues on appeal`. Id. at 9818. `[7] Finally, Stallings contends that the sentencing ‘ disparity between crack cocaine and powder co- caine crimes violates the Due Proces_s Clause._ This argument has been repeatedly considered and rejec- `ted by this court. See United States v. Johnson, 108 F.3d 919, 922 (8th Cir1997) (citing United States v. Carter, 91 F.3d 1196 (8th_Cir.l996); United States, v. Smith, 82 F.3d 241, 244 (8th'Cir.l996), cert. denied, 5'19 U.S. 856, 117 S;Ct. 154, 136 L.Ed.2d 99 (1996)). Only the court en banc can overrule an earlier panel decision. United States v. Riza, 267 F. 3d 757, 760 (8th Cir. 2001). Accordingly, we affirm the conviction, and remand for re-sentencing. c.A.S (Neb.),zooz. U.S. v. Stallings 301 F.3d 919 ©'2009’ Th<>mson Reu'iers/west. No claim to oag. Us Gov. w'orioc\im»< Pag€50f7 1 ' Exui%_:r EWL&\ 301 F.3d 919 301'F.3d 919 (Cite as: 301 F.3d 919) Stallings in connection with the California convic- tion, `and, consequently, reliance on 'that convicTion for purposes of 21 U.S.C. § 84'1(b)(l)(A)(v1ii) sen_-_ tence enhancement was improp_e_r.FNl _ FNl Stallings made a valid objection at ~ sentencing to his California conviction, The grounds relied upon in this opinion to invalidate the sentence were raised through questioning by Judge McMillian at oral ar- gument. The parties were then given the opportunity to file supplemental briefs on the issue of whether there was ever a judg- _ ment entered by the California courts The ' court is now in receipt of the supplemental briefing on that issue At the sentencing hearing, the government intro- duced a- number of exhibits in an attempt to prove up the California conviction. These exhibits show that the defendant was charged with felony posses- sion for sale of cocaine base in violation of section 11351.5, of the Health and Safety Code of Califor- nia. The defendant entered a plea of nolo copr tendere. He was sentenced to three years probation, subject to the serving of 78 days in the county jail, and ordered to pav restitution and court costs. The sentencing documents also show that “imposition of sentence was suspended.” Subsequently, a revoca- tion of probation proceeding was commenced in the Superior Court of California, County of Alameda. However, the record made at the sentencing hearing S. indicates no further action was taken on the Califor- nia probation officer's revocation recommendation The remaining reference to the California convic- tion is in an Oregon Presentence Report, introduced into evidence at the sentencing hearing, which 1 states that California “revocation proceedings are unlikely given Stallings's conviction in Federal Court.” FNZ FN2. The referenced federal court convic- tion is a 1995 conviction for Interstate Travel in Aid of a Crime of Racketeering . _ Page_ 4 prosecuted in the United States District Court for the District of Oregon`... The final disposition of the California conviction resulted in Stallings receiving probation with the imposition of sentence suspended. Although proba- tion revocation proceedings were commenced by the probation office, the California court neither re-_ voked probation nor did it pronounce judgment SeeCal.Penal Code § 1203.2(b); see also *922People v. Smith, 12 Cal.App.3d 621, 90 Cal.Rptr. 811, 814 (1970) (“It is equally clear that probation was revoked and a bench warrant was issued so that judgment and sentence could be im- posed, imposition thereof ' having be'en suspended approximately three years earlier....”). If imposition of sentence was suspended, and probation was nev- er revoked, then there is no judgment entered against the defendant As explained in an early California Supreme Court case: When judgment is not pronounced and further pro- ceedings are suspended, there is no judgment against [the defendant]. His activities are limited only by the terms of the probationary order, un- der the supervision of the probation officer Uan revocation of probation the defendant is entitled “to a hearing and to be sentenced, before he can be committed to the appropriate institution. Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182, 187 (1959) (citation omitted); see also People v. Pennington, 213 Cal.App.3d 173, 261 Cal.Rptr. 476, 478 (1989) (“Where no sentence is imposed at the time probation is granted, a subsequent decision terminating probation requires that judgment be pronounced.”(citing Cal.Penal Code § 1203.2, subd. (c))); United States v. Qualls, 108 F.3d 1019, 1023 (9th Cir.1997) (“There is no judgment pending against a probationer when the court withholds im~ .. ~ position of judgment and suspends further proceed- ings. Because the California court granted [the de- fendant] probation and suspended further proceed- ings, [the defendant] does not have a final or ©‘2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&ifrri=No... 8/4/2009 Mo'eubt Eit\is:'r 301 F.3d919 301 F.3d 919 (cire as= 301 F.3d 919) pending judgment against him in Califor- nia. ”(intern_al citations omitted)), affd en banc, 140 F. 3d 824, vacated and remanded, 525 U. S. 957, 119 S. Ct 398, 142 L.Ed. 2d 323, rev'd on other grounds, 172 F. 3d 1136 [4] 111 United States v. Robin.s'ohL 967 F.2d 287 (9th Cir. 1992), the Ninth Circuit concluded that under &Wbatiom Order__ is not dgment” when the imposition of sentence is sus_-_ pended. See id. at 293_. The Ninth Circuit noted that California law provides: “[W]hen a sentencing court grants probation after a conviction, it may suspend the imposition of sentence, in which case *‘si no judgment of - conviction is rendered, or it may ‘T impose sentence and order its execution to be stayed, In the latter case only, a judgment of con- viction is rendered.” Id. (citing People v. Arguello, 59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6 (1963)); see lalso United States v. Haggerty, 85 F.3d 403, 406 (8th Cir.l996) (citing Robinson for the proposition that a probation order is not a.judg- ment). In Stallings's case, there was no judgment of conviction entered and the appropriate time for re- voking his probation and entering judgment has lapsed. See Cal.Penal Code § 1203.3(a) (“The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of ` imposition or execution of sen- tence....”); see also ln re Perez, 65 Cal.2d 224, 53 Cal.Rptr. 414, 418 P.2d 6, 11 (1966) (“If probation was timely revoked, judgment could be imposed at any time thereafter.”); Srnith, 90 Cal.Rptr. at 814 (“_It is also settled that an order revoking probation to_be_valid,_mu_st be made within the period fixed m the order of probation, If not revoked within that >period,_ the pro mbation terminates automaticallyo on tli_te__Last_cla)L?’). Accordingly, no valid judgment has been entered against Stallings and, therefore, the enhanced sentence imposed in reliance upon the California conviction was improper. II. IT\E .Page 6 of7 g Page 5 [5][6] Stallings also contends the evidence was in~ sufficient to support his conviction. We review suf- ficiency of the evidence challenges in the light most favorable to the verdict, giving the government*923 the benefit of all reasonable inferences. United States v. Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir.2001). Under this standard, we find Stallings's contentions without merit. Witnesses testified that Stallings shipped cocaine'thi'ough the mail and arranged for others to deliver crack on his behalf. The government also introduced wiretap evidence linking Stallings with admitted drug dis- tributors and physical evidence including two scales, an Exacto knife, a razor, and a large amount of cash seized from a storage locker-rented to Stallings. Stallings contends that the drug dealers testifying against him were motivated to reduce their sentences through cooperation with the gov- ernment. Issues of witness credibility and bias, however, were resolved by the jury and we do not reconsider these issues on appeal. Id. at 988. III. [7] Finally, Stallings contends that the sentencing disparity between crack cocaine and powder co- caine crimes violates the Due Process Clause. This argument has been repeatedly considered and rejec- ted by this court. See United States v. Johnson, 108 F.3d 919, 922 (8th Cir.l997) (citing United States v. Carter, 91 F.3d 1196 (8th Cir.l996); United States v. Smith, 82 F.3d 241, 244 (8th Cir.l996), cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136 L.Ed,2d 99 (1996)). Only the court en banc can overrule an earlier panel decision. United States v. Riza, 267 F.3d 757, 760 (8th Cir.2001). Accordingly, we affu'm the conviction, and remand for re-sentencing. C.A.8 (Neb.),2002. U.S. v. Stallings 301 F.3d 919 ¢.@ © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. 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