United States v. Gooden

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-10601
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD BRUCE GOODEN,

Defendant-Appellant.

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Appeal from the United States District Court for the
Northern District of Texas
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June 17, 1997
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves an issue of first

impression: whether, in the context of determining a defendant's

base offense level under U.S.S.G. § 2K2.1(a)(4)(A), the term "prior

felony conviction" encompasses a conviction that was not sustained

until after the defendant committed the offense at issue, but prior

to being sentenced. In short, we determine whether the term

"prior" refers to convictions sustained prior to sentencing or only

to convictions sustained prior to the commission of the instant

offense.

I. BACKGROUND AND PROCEDURAL HISTORY

Donald Bruce Gooden was indicted on charges of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

and making false and fictitious statements regarding the purchase

of a firearm in violation of 18 U.S.C. § 922(a)(6). Pursuant to a

plea agreement, Gooden pleaded guilty to the possession charge.

Gooden was sentenced for the subject offense on May 17, 1996.

His presentence report (PSR) contained the following information

regarding the subject offense and an unrelated robbery that was

used in calculating his base offense level and criminal history

category.1 The subject offense was committed on February 22, 1994,

when Gooden purchased a firearm from a pawn shop for a juvenile.

At the time he purchased the pistol, Gooden was on felony probation

for unlawful use of a motor vehicle. In a separate incident on the

same day, Gooden robbed his elderly grandparents, cutting their

phone cords with a knife.

One year later, in February of 1995, Gooden pleaded nolo

contendere or no contest to robbery in state court. He received

deferred adjudication for the crime and was required to spend 180

days in jail as a condition of probation.

In the court below, Gooden objected to the PSR's

recommendation that the deferred adjudication be used in

calculating either his base offense level or his criminal history

category. The court overruled Gooden's objection and sentenced him

to 46 months imprisonment.

II. APPLICATION OF U.S.S.G. § 2K2.1

1
The PSR also contained information regarding other
convictions sustained by Gooden but those are not relevant to the
claims raised on appeal.

2
 This Court reviews the application of the sentencing

guidelines de novo and the district court's findings of fact for

clear error. United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.

1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2365 (1993). Gooden

pleaded guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). It is undisputed

that U.S.S.G. § 2K2.1 is the applicable guideline for determining

the base offense level for crimes involving unlawful receipt,

possession, or transportation of firearms. The parties do dispute,

however, which subsection of § 2K2.1 applies. The PSR recommended

that Gooden's base offense level be set in accordance with

2K2.1(a)(4)(A), which mandates an offense level of 20 if the

defendant "had one prior felony conviction of either a crime of

violence or a controlled substance offense." U.S.S.G.

§ 2K2.1(a)(4)(A).

Gooden acknowledges that he pleaded nolo contendere to the

robbery charge and that robbery is a crime of violence. He

nevertheless makes two challenges to the district court's decision

to apply § 2K2.1(a)(4)(A). First, he argues that it was error

because he had not yet been convicted of robbery at the time the

weapons possession offense took place. Gooden relies upon the use

of the word "had" (in the phrase "had one prior felony conviction")

to argue that the subsection was intended to apply only to those

instances in which the defendant had a prior violent felony

conviction at the time he committed the firearms offense. Second,

Gooden argues that the deferred adjudication for robbery should not

be considered a "conviction" in the context of § 2K2.1(a)(4)(A)

3
because there was no finding or admission of guilt. Gooden

therefore claims that the proper base offense level was 14 pursuant

to U.S.S.G. § 2K2.1(a)(6), which is the base offense level for

firearm possession by a prohibited person. We address this latter

claim first.

A. "TYPE" OF CONVICTION

This Court has determined that a deferred adjudication

constitutes a "prior conviction" in the context of § 2K2.1. United

States v. Stauder, 73 F.3d 56 (5th Cir. 1996). In that case,

Stauder argued that because his deferred adjudication was not a

"conviction" under Texas law, it should not have been used to

determine his base offense level under § 2K2.1. This Court looked

to the commentary of § 2K2.1, which refers the reader to

application note 3 of § 4B1.2 for the definition of "prior felony

conviction(s)." § 2K2.1, comment. (n.5). In pertinent part, note

3 defines a "prior felony conviction" as "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." This definition did not answer Stauder's

challenge.

Accordingly, we looked back to the remaining portion of the

commentary to § 2K2.1, which provides that "[f]or purposes of

determining the number of [prior felony] convictions under [§

2K2.1(a)(4)(A)], count any such prior conviction that receives any

points under § 4A1.1 (Criminal History Category)." Stauder, 73

F.3d at 57 (quoting § 2K2.1, comment. (n.5)) (first brackets

4
added). We then recognized that subsection (f) of § 4A1.2, the

guideline containing the definitions and instructions for computing

a defendant's criminal history, provides 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 . . . ."

Reasoning as follows, we concluded that Stauder's deferred

adjudication constituted a prior felony conviction: the commentary

to § 2K2.1 provides that any prior "conviction" that receives

points for the purpose of determining the criminal history category

is to be counted as a prior conviction in determining the number of

convictions under § 2K2.1(a)(4)(A); and the guidelines instruct

that Stauder's deferred adjudication from a finding or admission of

guilt is to be considered in computing the criminal history

category. Id. In other words, Stauder's deferred adjudication

constituted a prior felony conviction because, "[a]lthough § 2K2.1

uses the term `conviction,' it refers specifically to the criminal

history provisions, which, as stated, include deferred

adjudications such as Stauder's in calculating a defendant's

criminal history score." Id.

Without reference to this Court's decision in Stauder, Gooden

argues that the deferred adjudication he received for his plea of

nolo contendere to the robbery is not a conviction under § 2K2.1

because it is not the "type of disposition" that receives criminal

5
history points.2 Gooden points to the language in § 4A1.2(f),

which provides that "[d]iversion from the judicial process without

a finding of guilt (e.g., deferred prosecution) is not counted."3

We are unpersuaded by this argument for two reasons. First,

Gooden ignores the remaining portion of § 4A1.2(f), which provides

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 . . . ." The plain language

provides that a plea of nolo contendere is counted. Second, the

state court expressly found that Gooden committed the robbery

offense when it accepted his plea of no contest.4 We therefore

2
Gooden argues that the deferred adjudication for robbery
should not have been considered either in assessing criminal
history points or determining his base offense level. He also
argues that he should not have received any criminal history points
for another one of his prior convictions, forgery by passing a
check. He received deferred adjudication for that offense. The
PSR listed the robbery and forgery offenses together and
recommended that two criminal history points be assessed pursuant
to § 4A1.1(b), which instructs that two points are assessed "for
each prior sentence of imprisonment of at least sixty days. . . ."
(emphasis added). The robbery conviction, unlike the forgery
offense, entailed a 180-day jail sentence. Thus, the robbery
conviction by itself qualified for two criminal history points.
3
Gooden also relies on the following commentary: "[s]ection
4A1.2(f) requires counting prior adult diversionary dispositions if
they involved a judicial determination of guilt or an admission of
guilt in open court." § 4A1.2, comment. (n.9).
4
In relevant part, the judgment provided:

THE COURT, AFTER HAVING HEARD THE EVIDENCE AND ARGUMENT
OF COUNSEL, IS OF THE OPINION AND FINDS THAT THE EVIDENCE
SUBSTANTIATES THE DEFENDANT'S PLEA OF No Contest TO THE
OFFENSE OF ROBBERY AS CHARGED IN THE SECOND COUNT OF THE
INDICTMENT, AND THE DEFENDANT COMMITTED THE SAID OFFENSE
ON FEBRUARY 22, 1994.

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reject Gooden's argument that his plea of nolo contendere to

robbery was not the type of disposition that receives criminal

history points.

B. TIMING OF "PRIOR" CONVICTION

In regard to Gooden's argument that the "prior felony

conviction" must have been sustained prior to committing the

firearms offense, we find our analysis in Stauder instructive.

Under Stauder, as set forth in detail above, if a conviction

qualifies for criminal history points, then it qualifies as a

conviction under § 2K2.1.5

(emphasis in original).
5
Although this Court has not addressed the question whether
a "prior" conviction under § 2K2.1 must be sustained prior to
committing the firearms offense, the Sixth and the Tenth Circuits
have done so and come to differing conclusions. United States v.
Barton, 100 F.3d 43 (6th Cir. 1996); United States v. McCary, 14
F.3d 1502 (10th Cir. 1994). In McCary, the Tenth Circuit, with
little analysis, held that the date to ascertain whether the
defendant had a prior conviction for purposes of § 2K2.1 was the
date of sentencing, opining that the determination being made was
the defendant's base offense level, which is determined at the time
that the judge imposes sentence.
Relying on its reading of the text of the guideline, the Sixth
Circuit disagreed with the Tenth Circuit. Barton, at 45-46. The
Sixth Circuit held that only those convictions sustained before the
commission of the firearms offense should be counted as prior
felony convictions when determining a defendant's base offense
level. The Court believed that the Sentencing Commission's use of
the past tense verb "had" and the adjective "prior" to describe the
word "conviction" unambiguously indicated "that the number of prior
felony convictions must be determined as of the date that the
defendant commits the federal firearm offense, not the date of
sentencing for that offense." Id. at 45.
We do not find the language of § 2K2.1(a)(4)(A) unambiguous.
There is nothing in the guideline to indicate whether "prior"
refers to the time of the commission of the offense or to the time
of sentencing. While use of the past tense might be an intuitive
basis for determining that the guideline is referring to the
earlier point in time, i.e., commission of the offense, in light of
the commentary to § 2K2.1 and our decision in Stauder, we cannot
agree.

7
 Subsection (b) of § 4A1.1, the criminal history category

guideline, provides that a defendant receives two criminal history

points for each "prior sentence" of imprisonment of at least sixty

days. The commentary to § 4A1.2 defines "prior sentence" as:

a sentence imposed prior to sentencing on the instant
offense, other than a sentence for conduct that is part
of the instant offense. See § 4A1.2(a). A sentence
imposed after the defendant's commencement of the instant
offense, but prior to sentencing on the instant offense,
is a prior sentence if it was for conduct other than
conduct that was part of the instant offense.

Because Gooden's sentence for robbery was imposed prior to

sentencing on the instant offense, it constitutes a "prior

sentence," thus qualifying for criminal history points. Because

Gooden's prior conviction qualifies for criminal history points, it

is deemed a prior conviction for purposes of determining his base

offense level under § 2K2.1(a)(4)(A).6

For the above reasons, we find that the district court

properly considered Gooden's robbery conviction in determining both

his base offense level under § 2K2.1(a)(4)(A) and his criminal

6
In the context of § 4B1.1, the career offenders guideline,
the term "two prior felony convictions" does mean that the
defendant must have committed the offense at bar subsequent to
sustaining the two prior felony convictions. § 4B1.2(3). Gooden
does not argue that the definition in § 4B1.2(3) controls, and we
do not believe that it does. Although the commentary to § 2K2.1
referred to § 4B1.2, subsections (1) and (2), and application note
3, it did not refer to subsection (3) of § 4B1.2. As such, the
definition in § 4B1.2(3) does not apply. See § 1B1.5(b)(2) ("An
instruction to use a particular subsection or table from another
offense guideline refers only to the particular subsection or table
referenced, and not to the entire offense guideline."); § 1B1.5,
comment. (n.1) ("A reference may also be to a specific subsection
of another guideline . . . . In such case, only the specific
subsection of that other guideline is used.").

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history category under § 4A1.1.7

AFFIRMED.

7
We note that determining whether the defendant had a prior
conviction on the date of sentencing is consistent with the general
rule that "[b]arring any ex post facto concerns, a district court
must consider only the guidelines and policy statements that are in
effect on the date the defendant is sentenced, not on the date the
crime was committed." United States v. Brown, 920 f.2d 1212, 1216
(5th Cir.), cert. denied, 500 U.S. 925, 111 S.Ct. 2034 (1991)
(citing 18 U.S.C. § 3553(a)(4), (5)).

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