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.