United States v. Smith

United States Court of Appeals,

Eleventh Circuit.

No. 94-4725

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Freddie Lee SMITH, a.k.a. Fat Freddie, Defendant-Appellant,
Cross-Appellee.

Oct. 9, 1996.

Appeals from the United States District Court for the Southern
District of Florida. (No. 93-6166-CR-SH), Shelby Highsmith,
District Judge.

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

Court appointed counsel in this direct criminal appeal has

moved to withdraw and filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Our independent review of the entire record reveals that her

assessment of the relative merit of the direct appeal is correct.

Because independent examination of the record reveals no issues of

arguable merit, counsel's motion to withdraw is GRANTED and Smith's

convictions are AFFIRMED.

The government has cross-appealed with respect to the sentence

given in this case. The sentencing court found that the government

could not rely upon Smith's 1978 state court plea of nolo

contendere to a felony narcotics offense, followed by a withholding

of adjudication, because it was not a "conviction" within the

purview of 21 U.S.C. §§ 841(b)(1)(A) and 851. United States v.

Smith, 856 F.Supp. 665 (S.D.Fla.1994).
 In United States v. Mejias, 47 F.3d 401, 404 (11th Cir.1995),

we specifically held that a "prior plea of nolo contendere with

adjudication withheld in Florida state court is a "conviction' that

supports an enhanced sentence under [federal narcotics laws]." In

reaching this conclusion, we noted that "[t]he meaning of the word

"conviction' in a federal statute is a question of federal law

unless Congress provides otherwise." Id. at 403 (citing Dickerson

v. New Banner Institute, Inc., 460 U.S. 103, 119, 103 S.Ct. 986,

995, 74 L.Ed.2d 845 (1983)). Because there is no indication in

either 21 U.S.C. § 841 or § 851 that Congress intended that the

definition of a conviction should be determined by reference to

state law, we concluded that federal law was controlling. Id. at

403-04.

Applying Mejias to the instant case, we VACATE the decision of

the sentencing court whereby it failed to consider Smith's 1978

state felony disposition as a conviction for the purpose of 21

U.S.C. §§ 841 and 851, and REMAND to the district court for

resentencing in accord with our decision in Mejias. Smith, the

cross-appellee, contends that application of Mejias in these

circumstances would result in a mandatory sentence of life

imprisonment and that imposition of such a sentence would

constitute cruel and unusual punishment under the Eighth Amendment.

However, until the district court imposes such a sentence, Smith's

challenge is premature and not ripe for review. If the government

at resentencing again requests that a mandatory life sentence be

imposed and the court does so, Smith may raise, preserve and pursue

his Eighth Amendment challenge at that time.
 Accordingly, we AFFIRM the convictions of Smith, VACATE

Smith's sentence, and REMAND to the district court for

resentencing.