PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4009
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVER ENRIQUE MEDINA, a/k/a Ever Medina, a/k/a Ever E Medina,
a/k/a Ever Enrique Andrade Medina,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:11-cr-00345-JKB-1)
Argued: May 17, 2013 Decided: June 10, 2013
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Duncan and Judge Wynn joined.
ARGUED: Patrick E. Kent, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:
James Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellant. Paul E. Budlow, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
WILKINSON, Circuit Judge:
Defendant Ever Enrique Medina challenges the district
court’s ruling that a diversionary disposition, in which a court
sentences a criminal defendant but does not formally enter
judgment against him, is a predicate conviction for the purpose
of a sentencing enhancement imposed under U.S.S.G. § 2L1.2. For
the reasons that follow, we affirm.
I.
In December 2004, Medina, a citizen of El Salvador, pled
guilty to possession of a concealed dangerous weapon and
possession of marijuana, both in violation of Maryland law. The
state judge issued a “probation before judgment” diversionary
disposition, sentencing Medina to eighteen months of probation
for his offenses without entering judgment in the case. Medina
was subsequently arrested for driving under the influence in
December 2006 and was convicted in early 2007, triggering his
deportation to El Salvador.
After illegally reentering the United States at some
unknown time, Medina resurfaced in Baltimore and was arrested in
September 2008 for driving without a valid license. He was found
guilty and sentenced to sixty days in jail. Approximately two
years later, Medina became involved in an altercation at a bar
and was arrested for threatening a security officer with a
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knife. He pled guilty to assault in the second degree and
received a ten-year suspended sentence along with five years of
probation. Shortly after sentencing on the assault charge, he
was detained by Immigration and Customs Enforcement.
On June 23, 2011, Medina was indicted by a federal grand
jury in the District of Maryland for unlawful reentry after
removal, in violation of 8 U.S.C. § 1326. He pled guilty without
a plea agreement. At sentencing, the parties did not dispute
Medina’s base offense level but did clash over whether his 2004
probation-before-judgment disposition triggered a four-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(D), which applies
if a defendant “previously was deported, or unlawfully remained
in the United States, after a conviction for” a felony. Medina
argued, inter alia, that the term “conviction” in
§ 2L1.2(b)(1)(D) does not include diversionary dispositions such
as probation before judgment because other Guidelines provisions
-- as well as the definitions statute applicable to the federal
immigration laws generally -- specifically consider diversionary
dispositions to be convictions while § 2L1.2(b)(1)(D) does not.
He also noted that Maryland courts generally do not consider
diversionary dispositions to be convictions for purposes of
state law.
The district court, relying on what it called “clear
statutory guidance,” J.A. 162, rejected Medina’s arguments and
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found that the 2004 disposition was, in fact, a felony
conviction within the meaning of § 2L1.2(b)(1)(D). As a
threshold matter, the court concluded that the disposition
constituted a predicate conviction under the criminal statute
itself, 8 U.S.C. § 1326, because the applicable definition
section, id. § 1101(a)(48)(A), explicitly defines convictions to
include diversionary dispositions. The district court then
concluded that the term “conviction” should retain the same
meaning across the criminal statute and the Guidelines, given
the lack of a clear indication to the contrary. Therefore, the
trial judge reasoned, the explicit classification of
diversionary dispositions as convictions in § 1101(a)(48)(A)
should apply in § 2L1.2(b)(1)(D) as well.
The district court accordingly applied the four-level
sentencing enhancement for a prior felony conviction, yielding
an advisory Guidelines range of ten to sixteen months. However,
relying on 18 U.S.C. § 3553(a), the trial judge declined to
follow the Guidelines recommendation after finding that that
“the public does need to be protected from [Medina]” because he
is “dangerous” and committed an “extremely serious assault” that
“easily could have concluded with a homicide.” J.A. 239, 242.
The court carefully reviewed each of the statutory sentencing
factors and concluded that:
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the sentence that is sufficient, but not greater than
necessary to comply with the purposes set out in [the
sentencing statute] in this Court’s judgment is 30
months in prison. And that, very purposely, is one
year more than the top end of the guideline range. I
think the guidelines are off by at least a year in
their assessment [of] the seriousness of the
situation.
J.A. 243. The court sentenced Medina to thirty months in prison,
and this appeal followed.
II.
At the outset, we address Medina’s contention that Maryland
law -- rather than federal law -- should govern the question of
whether a diversionary disposition constitutes a predicate
conviction under U.S.S.G. § 2L1.2(b)(1)(D). See Appellant’s Br.
3, 8-9. Although some Guidelines provisions may incorporate
definitions from state law, it is clear that federal law
controls our interpretation of the Guidelines absent a specific
indication to the contrary. See United States v. Reed, 94 F.3d
341, 344 (7th Cir. 1996) (“Like any other federal statute, the
Guidelines must be interpreted in accordance with federal law,
even when those Guidelines refer to some event occurring in
state court.”). We may therefore rely on Maryland law in defining
the term “conviction” only if the Guidelines direct us to look to
state law for interpretive guidance.
However, § 2L1.2(b)(1)(D) does not reference or incorporate
a state law definition of “conviction.” Rather, as our sister
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circuits have squarely concluded, “the plain language of
§ 2L1.2, considered in tandem with other provisions, as well as
the controlling case law, clearly establishes that the provision
does not limit the term ‘conviction’ to those judgments that
would be considered convictions under state law.” United States
v. Reinoso, 350 F.3d 51, 56 (2d Cir. 2003); see also, e.g.,
United States v. Cuevas, 75 F.3d 778, 781 (1st Cir. 1996)
(same). That Maryland may not consider probation before judgment
to be a conviction for its own purposes is thus of no moment to
this appeal, and we shall rely solely on federal law to
determine whether Medina’s 2004 disposition constitutes a
predicate conviction here. 1
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To be sure, the application notes for § 2L1.2(b)(1)
instruct a sentencing court not to apply the enhancement for a
juvenile conviction “unless such conviction is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted.” U.S.S.G. § 2L1.2 cmt. 1(A)(iv).
However, this narrow reference to state law is, by its very
terms, limited to the domain of juvenile convictions and not
relevant here. Moreover, were we to accept Medina’s argument
that we should look to state law in defining the term
“conviction” in § 2L1.2(b)(1)(D), we would render superfluous
the application notes’ reference to state law concerning
juvenile offenses. Given that we generally “avoid constructions
that would reduce some terms to mere surplusage,” In re Total
Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir. 2013), the
Sentencing Commission’s express reference to state law in the
context of juveniles supports our conclusion that federal law
governs interpretation of the term “conviction” in other
contexts.
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III.
The question before us is thus whether a guilty plea that
results in a diversionary disposition is a conviction under
federal law. As an initial matter, it is beyond dispute that the
plain meaning of the term “conviction” includes a guilty plea
followed by entry of judgment. For instance, in Shepard v.
United States, the Supreme Court squarely held that a guilty
plea for a predicate offense is a conviction that triggers
sentencing enhancements under the Armed Career Criminal Act. 544
U.S. 13, 19 (2005). And long before Shepard, the Court stated
that a guilty plea “is itself a conviction” and that “[l]ike a
verdict of a jury it is conclusive.” Kercheval v. United States,
274 U.S. 220, 223 (1927); see also Florida v. Nixon, 543 U.S.
175, 187 (2004) (“While a guilty plea may be tactically
advantageous for the defendant, the plea is not simply a
strategic choice; it is itself a conviction.” (internal
citations omitted)).
Despite the Supreme Court’s pronouncements on the issue,
Medina contends that the sentence he received -- eighteen months
of probation pursuant to a diversionary disposition -- somehow
transforms his 2004 guilty plea into something other than a
conviction for purposes of §2L1.2(b)(1)(D). In support of this
claim, he points to the fact that other Guidelines provisions
addressing a defendant’s criminal history, such as § 4A1.2(f),
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specifically reference diversionary dispositions while
§ 2L1.2(b)(1) does not. Appellant’s Br. 10-12. The government
responds that the reference to diversionary dispositions in
§ 4A1.2(f) is only further evidence that the plain meaning of
the term “conviction” encompasses dispositions like the one at
issue here. Gov’t Br. 16-17.
We need not address Medina’s negative implication argument,
however, because Congress has already spoken to the matter at
hand. In the general definitions section for the immigration
laws, Congress specifically defined a conviction to include a
diversionary disposition -- that is, a situation in which
“adjudication of guilt has been withheld” -- if (1) “a judge or
jury has found the alien guilty or the alien has entered a plea
of guilty or nolo contendre or has admitted sufficient facts to
warrant a finding of guilt” and (2) “the judge has ordered some
form of punishment, penalty, or restraint on the alien’s liberty
to be imposed.” 8 U.S.C. § 1101(a)(48). Given that § 2L1.2 --
unlike § 4A1.2 -- relates specifically to an immigration
offense, we conclude, as the district court did, that the
definition of conviction in § 1101 must control our reading of
§ 2L1.2(b)(1)(D). Applying the definition from § 1101 to the
case sub judice, we find that Medina’s 2004 diversionary
disposition was, in fact, a conviction because he pled guilty to
the charged offenses and was sentenced to some form of restraint
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on his liberty, namely probation for a period of eighteen
months.
Our decision here is in accord with all of our sister
circuits to have considered the issue. The Fifth Circuit, for
instance, has also relied on the definition of conviction in
§ 1101 to hold that a diversionary disposition of “deferred
adjudication probation” constitutes a predicate conviction under
§ 2L1.2. United States v. Ramirez, 367 F.3d 274, 277 (5th Cir.
2004); see also, e.g., United States v. Anderson, 328 F.3d 1326,
1328 (11th Cir. 2003) (same); United States v. Zamudio, 314 F.3d
517, 521-22 (10th Cir. 2002) (same). We agree that diversionary
dispositions arising from guilty pleas -- including Medina’s
probation before judgment disposition at issue here --
constitute predicate convictions under § 2L1.2(b)(1)(D). To hold
otherwise would be to ignore both Congress’s intent to include
diversionary dispositions within the term “conviction,” see 8
U.S.C. § 1101(a)(48)(A), and the Supreme Court’s instruction
that a guilty plea plainly constitutes a conviction, see Nixon,
543 U.S. at 187.
IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
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