dissenting.
I respectfully dissent.
I contend, contrary to the majority, that the meaning of the term “convicted” is to be determined in accordance with federal law. After all, this is a federal crime and if we are to be subject to the interpretation which the courts of every state in the land give, it is going to be an unholy mess.
The defendant was prosecuted pursuant to 18 U.S.C. §§ 922(h) and 924(a). Section 922(h) declares that “It shall be unlawful for any person — (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
The majority holds that although the defendant entered a plea of guilty, since he was given the benefit of a deferred sentence, he had not been convicted under state law and hence he could not be prosecuted under federal law.
The facts are that the agents, while searching for a fugitive, went to the residence of the appellant on information that the unlawful flight subject was at the appellant’s home. In the garage the agents observed an automobile which was identified as the fugitive’s car. They parked their car in the driveway and went inside the garage. They talked to one Janice Holding, who had just emerged from her automobile. She was asked if the fugitive was there and she said that he was not.» She was then asked if the appellant was *1279there and she said that he was. According to the FBI agents, they were invited into the home and were shown into the living-room where the appellant was. There, in plain sight, were a number, of weapons, including a .30 caliber which was the object of some inquiry. After the agents left the place they notified the Bureau of Alcohol, Tobacco and Firearms as to the presence of the weapons in the home. The agents knew of the defendant from a prior case. They obtained a search-warrant, and on February 16, 1977, executed it. Ten firearms were seized. Of these, three were the subjects of the present charges.
At trial there was a contention that the invasion of the residence was illegal. The court does not reach this subject. The trial court found that the agents were invited in, and this is final.
I shall therefore confine my discussion to the question whether the definition of “conviction” as the same is used in 18 U.S.C. § 922(h) and § 924(a) shall be left to state court decision.
I contend that federal law must govern. First, the statutes themselves do not leave this question to the forum state and that fact itself argues that the question is a federal one. Secondly, the majority view is a new concept. That fact, of course, does not in itself militate against it, but before we abandon our own decisions on the subject we should carefully consider the problem.
The strongest of these authorities is Bras-well v. United States, 224 F.2d 706 (10th Cir. 1955). The statute which was considered in Braswell was somewhat different from the present firearms statute, but the case nevertheless has a great similarity in principle. It declared it to be unlawful for anyone who is under indictment or has been convicted of a crime of violence or is a fugitive from justice to ship or transport in commerce a firearm or ammunition. The defendant had been convicted of a crime of violence and was charged under the 1955 version of the firearms statute. As in the present case, the State of Texas had a provision for suspended sentence which allowed a defendant who had not previously been convicted of a felony to receive such a sentence. Under the law of Texas, it was nonfinal and nonappealable. -
The contention in Braswell was similar to that which is made here, namely, that he had not been previously convicted of a crime of violence as required by the statute.
The court said:
His argument on this point hinges on the fact that after his conviction for burglary he was given advantage of the Texas rehabilitation statutes which allowed the presiding judge to suspend sentence.
224 F.2d at 709. He argues, as did the defendant-appellant here, that there was no final order and hence he had not been convicted in accordance with the federal statute. Our court stated that it would indeed be a strange construction of the statute which would impose its sanctions on those under indictment and not yet tried but would not include within its prohibition those convicted of crimes of violence and receiving suspended sentences. The court said that it was unnecessary that the conviction be final and appealable.
I evaluate the Braswell decision as being closely parallel to the case at bar because here it is said that since sentence had not been imposed that the plea of guilty did not constitute a conviction. Here, it is true, it is not argued that the judgment has to be appealable, but in both cases the basic problem is that the basis for the defendant’s argument is that sentence had not been imposed. In Braswell, this court readily dismissed this argument. In the case at bar the majority embraces the argument and does so without dealing with Braswell. The court’s action constitutes a repudiation of Braswell.
United States v. Place, 561 F.2d 213 (10th Cir. 1977), is a more recent decision of this court. In that case defendant was charged with making a false written statement in connection with the acquisition of a firearm, contrary to the statute in question. The defendant had been convicted in California, so it was alleged, for grand theft. The defendant filled out a form on which *1280he answered “no” to the question whether he had been convicted in any court of any crime punishable by imprisonment for a term exceeding one year. The defendant had pled guilty to grand theft and was granted probation for five years provided he first spend one year in county jail. Under California law imprisonment in only the county jail is a misdemeanor and not a crime. We held that the grand theft definition in the California code was a crime punishable for not more than ten years, and we said that the intent of Congress could be carried out only if the term “convicted” is given a nonrestrictive interpretation. We said:
Once guilt has been established, by plea or verdict, and naught but sentencing remains, a defendant has been “convicted” within the meaning of that word in question 8.b. United States v. Beebe, 467 F.2d 222 (10th Cir. 1972), cert. den., 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974); United States v. Willis, 505 F.2d 748 (9th Cir. 1974), cert. den., 420 U.S. 963, 95 S.Ct. 1355, 43 L.Ed.2d 441 (1975); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974).
******
On the contrary, we are in accord with the statement of the district court in McMullen v. United States, 349 F.Supp. 1348 (C.D.Cal.1972), aff’d, 504 F.2d 1108 (9th Cir. 1974), that “the only purpose in looking to state law * * * is to determine the maximum penalty which could have been imposed * * * .” 349 F.Supp. at 1351. 561 F.2d at 215. We went on to say: . .. .
Having here determined that the maximum penalty * * * exceeded one year, the investigation into state law is exhausted.
561 F.2d at 215.
The majority opinion constitutes a repudiation of Place, a relatively recent decision of this court. So, also, it is in conflict with United States v. Beebe, 467 F.2d 222 (10th Cir. 1972), cert. den., 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974). Beebe, like Place, involved the making of a false statement regarding a criminal record. There the defendant argued that the term “convicted” was a question of fact that should have been submitted to the jury. We held, however, that it was a question of law for the court. The defendant had been sentenced to five years in prison, but the conviction was suspended and the defendant was ordered to spend four months in the custody of the Sheriff of San Diego County. We further said that the court is not required to instruct on the question of conviction. Our court did not hold in that case that the firearms conviction was subject to the state law view of what constituted a conviction. We held that the trial court was correct in determining that it was a matter of federal law. The opinion of Judge Barrett relied on United States v. Rosenstengel, 323 F.Supp. 499 (E.D.Mo. 1971).
In United States v. Turner, 497 F.2d 406 (10th Cir. 1974), we held that a guilty plea under federal law is a conviction and thus that decision is also out of harmony with the majority opinion in this case.
All of our teachings recognize that a plea of guilty constitutes a conviction. Sentencing is not necessary to bring this about. Guilt has been established once the plea is entered. It continues until it is expunged.
As, a matter of policy, we should not be subject to rulings of state courts. The statute in question makes it unlawful for a person who is under indictment for, or who has been convicted of a crime to receive a firearm or ammunition. As Judge Thompson said at trial in the case at bar, in view of the fact that the statute takes cognizance of one who is merely charged with an offense, a strict construction should not be given to “conviction” to exclude a fact situation, such as in this case, where a plea of guilty has been entered. I agree with Judge Thompson that this strict construction is illogical. So, therefore, as a matter of law and as a matter of reason and policy, there is no justification for incorporating the state definition of “conviction” in §§ 922 and 924.
*1281I predict that during the ensuing period while the rule is the law in the Tenth Circuit, that it will create great confusion in the minds of officers, prosecutors, lawyers and judges.
McWILLIAMS, Circuit Judge, joins in the dissent of DOYLE, Circuit Judge.