United States Court of Appeals,
Eleventh Circuit.
No. 95-6695.
UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas Richard WILLIS, Defendant-Appellant.
Feb. 28, 1997.
Appeal from the United States District Court for the Southern
District of Alabama. (No. 1:95-CR-61-001), Richard W. Vollmer,
Jr., District Judge.
Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior
District Judge.
STAGG, Senior District Judge:
In this action we address the issue of whether a defendant who
pleaded nolo contendere in a Florida state court to charges of
carrying a concealed firearm and grand theft of a firearm, but
whose adjudication of guilt was withheld, is "convicted" of a
1
felony within the meaning of a federal firearm statute. We
disagree with the district court's holding that such a plea
constitutes a "conviction" within the meaning of the statute and,
therefore, reverse.
I. FACTS AND PROCEDURAL HISTORY
This case presents a question of law which is subject to de
novo review in this court. United States v. Terry, 60 F.3d 1541,
1543 (11th Cir.1995). In March 1995, Thomas Richard Willis
*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
1
18 U.S.C. § 922(g)(1) prohibits the possession of a firearm
by one who has been convicted of a crime punishable by
imprisonment for a term exceeding one year.
("Willis") was indicted in the United States District Court for the
Southern District of Alabama, Southern Division, for bank robbery2
("count one") and possession of a firearm by a convicted felon
("count two"). As his alleged predicate offense, Willis pleaded
nolo contendere on April 3, 1989, to felony charges brought against
him by the State of Florida in the Circuit Court of Escambia
County, Florida, for carrying a concealed firearm and grand theft
of a firearm. Following Willis's plea, the state court withheld
adjudication of guilt and ordered the defendant to complete one
year of probation, pay court costs, and perform 50 hours of
community service.
On April 5, 1995, Willis pleaded not guilty to counts one and
two of the instant indictment. Subsequently, on April 11, 1995,
Willis filed a motion to dismiss count two of the indictment on the
grounds that having entered a nolo contendere plea as to the
alleged, predicate offenses, he had not been "convicted" of a prior
felony as required by 18 U.S.C. § 922(g)(1). This motion was
denied by the district court in an order dated April 19, 1995. On
Willis's motion for reconsideration, the court again denied his
motion to dismiss count two in an order dated May 11, 1995.
Thereafter, Willis entered a plea of guilty as to count one and a
conditional plea of guilty as to count two pursuant to Rule
11(a)(2) of the Federal Rules of Criminal Procedure. 3 On August
2
18 U.S.C. § 2113(a).
3
Rule 11(a)(2) states:
With the approval of the court and the consent of the
government, a defendant may enter a conditional plea of
guilty or nolo contendere, reserving in writing the
10, 1995, Willis was sentenced to 33 months imprisonment on each
count to run concurrently, placed on supervised release for a term
of three years on each count to run concurrently, and ordered to
pay a special assessment of $50.00 for each count and restitution
in the amount of $4,360.00 to the bank. A notice of appeal was
timely filed. At issue is the validity of the district court's
denial of Willis's motion to dismiss count two of the indictment.
II. DISCUSSION
Willis contends that count two—possession of a firearm by a
convicted felon—should be dismissed because he pleaded nolo
contendere to the alleged predicate offenses and that such a plea
does not amount to a prior "conviction" within the meaning of 18
U.S.C. § 922(g)(1). This section provides that it shall be
unlawful for any person "who has been convicted in any court of a
crime punishable by imprisonment for a term exceeding one year ...
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce." 18 U.S.C. § 921(a)(20), added in
1986 as part of the Firearms Owners Protection Act, Pub.L. No. 99-
308, 100 Stat. 449, provides in pertinent part: "What constitutes
a conviction of [a crime punishable by imprisonment for a term
exceeding one year] shall be determined in accordance with the law
right, on appeal from the judgment, to review of the
adverse determination of any specified pretrial motion.
A defendant who prevails on appeal shall be allowed to
withdraw the plea.
of the jurisdiction in which the proceedings were held."4 Thus, in
this case, Florida law is determinative, and the narrow issue
before the court is whether Willis has been "convicted of a crime
punishable by imprisonment for a term exceeding one year" under
Florida law.
Although the issue of whether a nolo contendere plea without
an adjudication of guilt is a conviction within the meaning of
Florida law is one of first impression in this court, this issue
has been addressed by the United States District Court for the
Northern District of Florida in United States v. Thompson, 756
F.Supp. 1492 (N.D.Fla.1991). In United States v. Thompson, 756
F.Supp. 1492 (N.D.Fla.1991). In Thompson, the defendant was
charged under section 922(g)(1) with four counts of receiving
firearms after having been convicted of a felony. The defendant's
prior, alleged "convictions" were nolo contendere pleas to charges
brought against him by the State of Florida for robbery and
aggravated battery. On the defendant's motion, the court dismissed
the four section 922(g)(1) counts, finding that the defendant had
not been "convicted" of a prior felony within the meaning of
section 922(g)(1). The court explained that since section
921(a)(20) had been added by Congress in 1986, the law of the state
in which the proceeding was held determines whether a prior
conviction is a "conviction" within the meaning of section
4
Congress added this section in 1986 with the express intent
that "state law should govern in these matters." S.Rep. No. 98-
583, 98th Cong., 2d Sess. 7 (1984). Prior to the 1986 amendments
to section 922, the courts looked exclusively to federal law to
define "convicted" for the purposes of 18 U.S.C. § 922(g)(1).
See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103
S.Ct. 986, 74 L.Ed.2d 845 (1983).
922(g)(1). After an exhaustive review of Florida jurisprudence on
the issue, the court concluded: "[W]here, as here, a nolo plea is
being used as an essential element of another offense, Florida law
would not consider such plea to be a "conviction'." Id. at 1497.
Thompson has since been followed in United States v. Gispert, 864
F.Supp. 1193 (S.D.Fla.1994); United States v. Lester, 785 F.Supp.
976 (S.D.Fla.1991); and Snyder v. State of Florida, 650 So.2d 1024
(Fla.2d Dist.Ct.App.1995), affirmed, 673 So.2d 9 (Fla.1996). See
also Castillo v. State of Florida, 590 So.2d 458, 461 (Fla.3d
Dist.Ct.App.1991) (holding "conviction" within the meaning of the
Florida felon in possession of a firearm law (section 790.23,
Florida Statutes (1989)) requires an adjudication of guilt).
The court in Thompson discussed United States v. Grinkiewicz,
873 F.2d 253 (11th Cir.1989), and United States v. Orellanes, 809
F.2d 1526 (11th Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct.
55, 102 L.Ed.2d 33 (1988)—the cases relied upon by the government
in this appeal—but found these cases inapposite. In Grinkiewicz
and Orellanes, the issue was whether a plea of guilty followed by
a withholding of adjudication constituted a conviction under
Florida law for the purposes of 18 U.S.C. § 922(h)(1).5 Relying on
5
This section provides:
It shall be unlawful for any individual, who to
that individual's knowledge and while being employed
for any person described in any paragraph of subsection
(g) of this section, in the course of such employment—
(1) to receive, possess, or transport any firearm
or ammunition in or affecting interstate or
foreign commerce; or
(2) to receive any firearm or ammunition which has
been shipped or transported in interstate or
State v. Gazda, 257 So.2d 242 (Fla.1971), the Orellanes court held
"the term "conviction' means determination of guilt by verdict of
the jury or by plea of guilty, and does not require adjudication by
the court." Orellanes, 809 F.2d at 1528 (quoting Gazda, 257 So.2d
at 243-44) (internal quotations omitted) (emphasis added). The
court in Grinkiewicz stated that it was bound by the explicit
holding in Orellanes. Grinkiewicz, 873 F.2d at 254. The Thompson
court found Orellanes and Grinkiewicz not to be controlling based
on its conclusion that "under Florida law, defendant's nolo plea is
not the equivalent of a guilty plea." United States v. Thompson,
756 F.Supp. 1492, 1497 (N.D.Fla.1991) (emphasis added). In
reaching this conclusion, the court relied on the following
language from Garron v. State, 528 So.2d 353 (Fla.1988):
The plea of guilty is an absolute condition precedent before
the lack of adjudication can be considered a conviction.
Here, appellant plead nolo contendere to the aggravated
assault charge and received no adjudication of guilt. It does
not follow from McCrae [v. State, 395 So.2d 1145 (Fla.1980),
cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486
(1981) (holding that a "conviction" used as an aggravating
factor for the imposition of the death penalty means a plea of
guilty even without an adjudication of guilt) ] that a plea of
nolo contendere amounts to either a confession of guilt or a
"conviction" for purposes of capital sentencing proceedings.
A nolo plea means "no contest," not "I confess." It simply
means that the defendant, for whatever reason, chooses not to
contest the charge. He does not plead either guilty or not
guilty, and it does not function as such a plea.
Thompson, 756 F.Supp. at 1496-97 (quoting Garron, 528 So.2d at
360). Although Garron addressed the issue of whether a nolo
contendere plea by the defendant to an earlier charge was an
aggravating circumstance for the purposes of imposing the death
penalty in a first-degree murder case, its discussion of the effect
foreign commerce.
of the nolo contendere plea under Florida law is clearly applicable
to the case at hand. According to Thompson and Garron, as well as
Gazda, a conviction under Florida law requires either an
adjudication of guilt or a guilty plea. Moreover, a nolo
contendere plea is "not the equivalent of a guilty plea."
Thompson, 756 F.Supp. at 1497.
We find Chief Judge Stafford's exhaustive review of Florida
law on this issue in Thompson to be persuasive. Willis pleaded
nolo contendere to the felony charges underlying count two of the
present indictment, and adjudication of guilt was withheld.
According to the cases discussed above, Willis has not been
"convicted" of a felony under Florida law. Therefore, we hold that
section 922(g)(1) is inapplicable and that the district court erred
in denying Willis's motion to dismiss count two of the indictment.
Despite the recent pronouncement by the Florida Supreme Court
in Garron and the Northern District of Florida's Thompson opinion,
the government asserts that the district court was correct in
finding that Willis had been convicted of a felony within the
meaning of section 922(g)(1). The government bases its contention
on United States v. Jones, 910 F.2d 760 (11th Cir.1990), and
Maxwell v. State, 336 So.2d 658 (Fla. 2d Dist.Ct.App.1976).6
6
In addition, the government cites in its brief United
States v. Bruscantini, 761 F.2d 640 (11th Cir.), cert. denied,
474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985), and United
States v. Garcia, 727 F.2d 1028 (11th Cir.1984), in which,
relying on Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
103 S.Ct. 986, 74 L.Ed.2d 845 (1983), we held a plea of nolo
contendere that results in a withheld adjudication is a
"conviction" for purposes of 18 U.S.C. § 922(g)(1). However, in
these cases we looked to federal law. The 1986 amendments to the
federal firearm statutes effectively overruled these cases,
making "the law of the jurisdiction in which the proceedings were
In Jones, the issue before this court was whether "a prior
state court case wherein the defendant enters a nolo contendere
plea and adjudication is withheld can be used as a "conviction' to
make the defendant eligible for career offender status under
section 4B1.1 of the Sentencing Guidelines. "7 Jones, 910 F.2d at
761 (emphasis added). The court held that the defendant's prior
offense was a conviction for the purposes of Section 4B1.1.
However, Jones is not controlling in the case sub judice for the
reasons stated in United States v. Mejias, 47 F.3d 401 (11th
Cir.1995), a subsequent Eleventh Circuit opinion. In Mejias the
issue was whether a plea of nolo contendere to a felony in Florida
state court, where adjudication was withheld, constitutes a "prior
conviction" for purposes of a sentencing enhancement under 21
U.S.C. § 841(b)(1)(B).8 This court answered affirmatively, stating
that "[t]he meaning of the word "conviction' in a federal statute
is a question of federal law unless Congress provides otherwise"
and that "there is nothing in [18 U.S.C. §] 921(a)(20) to suggest
held," i.e., state law, controlling. See 18 U.S.C. § 921(a)(20).
7
U.S.S.G. § 4B1.1, entitled "Career Offender," provides in
part:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time of the
instant offense, (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense, and (3) the defendant has
at least two prior felony convictions for either a
crime of violence or a controlled substance offense.
8
Section 841(b)(1)(B) provides enhanced penalties for any
defendant convicted of manufacturing, distributing, or dispensing
certain quantities of certain controlled dangerous substances who
"commits such a violation after a prior conviction for a felony
drug offense has become final."
that Congress intended that the definition of a conviction should
depend upon state law, rather than federal law." Id. at 403.
Similarly, the statute at issue in Jones, section 4B1.1 of the
Sentencing Guidelines, does not indicate that state law should
govern its application. Therefore, in Jones, as in Mejias, federal
law, not state law, was controlling.
In contrast to the governing statutes in Jones and Mejias,
section 922, which is at issue in the present case, provides
explicitly "[w]hat constitutes a conviction [for the purposes of
this section] shall be determined in accordance with the law of the
jurisdiction in which the proceedings were held." 18 U.S.C. §
922(a)(2) (emphasis added). Jones and Mejias, by their own terms,
applied federal law and, therefore, have no bearing on the issue
before us: whether a nolo contendere plea is a "conviction" under
Florida law.
Finally, the government submits that Maxwell v. State, 336
So.2d 658 (Fla. 2d Dist.Ct.App.1976), a 1976 opinion from the
Florida Second District Court of Appeals supports its contention
that a nolo contendere plea is a conviction under Florida law.
Even if this is presumed to be correct, Maxwell has been overruled
by the subsequent, more explicit decision by the Florida Supreme
Court in Garron v. State, 528 So.2d 353 (Fla.1988).
III. CONCLUSION
Willis was charged with a violation of 18 U.S.C. § 922(g)(1),
possession of a firearm by a convicted felon. As his alleged,
predicate "conviction," Willis pleaded nolo contendere to charges
brought against him by the State of Florida for carrying a
concealed firearm and grand theft of a firearm. 18 U.S.C. §
922(a)(20) states that "conviction" within the meaning of Section
922(g)(1) is to be determined in accordance with the law of the
jurisdiction in which the proceeding was held. Florida law
provides that a conviction requires either an adjudication of guilt
by verdict of the jury or a plea of guilty. Garron v. State, 528
So.2d 353, 360 (Fla.1988); State v. Gazda, 257 So.2d 242, 243-44
(Fla.1971); See also United States v. Thompson, 756 F.Supp. 1492
(N.D.Fla.1991). A nolo contendere plea, however, does not amount
to confession of guilt. Gazda, 257 So.2d at 243-44; Thompson, 756
F.Supp. at 1496. Thus, a nolo contendere plea is not a conviction
under Florida law. Because Willis had not been "convicted" of a
felony under Florida law, section 922(g)(1) is inapplicable, and
the district court erred by refusing to dismiss count two of
Willis's indictment.
The order of the district court is REVERSED, Willis's
conviction under 18 U.S.C. § 922(g)(1) is VACATED, and this case is
REMANDED for resentencing in accordance with this opinion.