United States v. Willis

United States Court of Appeals,

Eleventh Circuit.

No. 95-6695.

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Richard WILLIS, Defendant-Appellant.

Feb. 28, 1997.

Appeal from the United States District Court for the Southern
District of Alabama. (No. 1:95-CR-61-001), Richard W. Vollmer,
Jr., District Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior
District Judge.

STAGG, Senior District Judge:

In this action we address the issue of whether a defendant who

pleaded nolo contendere in a Florida state court to charges of

carrying a concealed firearm and grand theft of a firearm, but

whose adjudication of guilt was withheld, is "convicted" of a
1
felony within the meaning of a federal firearm statute. We

disagree with the district court's holding that such a plea

constitutes a "conviction" within the meaning of the statute and,

therefore, reverse.

I. FACTS AND PROCEDURAL HISTORY

This case presents a question of law which is subject to de

novo review in this court. United States v. Terry, 60 F.3d 1541,

1543 (11th Cir.1995). In March 1995, Thomas Richard Willis

*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
1
18 U.S.C. § 922(g)(1) prohibits the possession of a firearm
by one who has been convicted of a crime punishable by
imprisonment for a term exceeding one year.
("Willis") was indicted in the United States District Court for the

Southern District of Alabama, Southern Division, for bank robbery2
("count one") and possession of a firearm by a convicted felon

("count two"). As his alleged predicate offense, Willis pleaded

nolo contendere on April 3, 1989, to felony charges brought against

him by the State of Florida in the Circuit Court of Escambia

County, Florida, for carrying a concealed firearm and grand theft

of a firearm. Following Willis's plea, the state court withheld

adjudication of guilt and ordered the defendant to complete one

year of probation, pay court costs, and perform 50 hours of

community service.

On April 5, 1995, Willis pleaded not guilty to counts one and

two of the instant indictment. Subsequently, on April 11, 1995,

Willis filed a motion to dismiss count two of the indictment on the

grounds that having entered a nolo contendere plea as to the

alleged, predicate offenses, he had not been "convicted" of a prior

felony as required by 18 U.S.C. § 922(g)(1). This motion was

denied by the district court in an order dated April 19, 1995. On

Willis's motion for reconsideration, the court again denied his

motion to dismiss count two in an order dated May 11, 1995.

Thereafter, Willis entered a plea of guilty as to count one and a

conditional plea of guilty as to count two pursuant to Rule

11(a)(2) of the Federal Rules of Criminal Procedure. 3 On August

2
18 U.S.C. § 2113(a).
3
Rule 11(a)(2) states:

With the approval of the court and the consent of the
government, a defendant may enter a conditional plea of
guilty or nolo contendere, reserving in writing the
10, 1995, Willis was sentenced to 33 months imprisonment on each

count to run concurrently, placed on supervised release for a term

of three years on each count to run concurrently, and ordered to

pay a special assessment of $50.00 for each count and restitution

in the amount of $4,360.00 to the bank. A notice of appeal was

timely filed. At issue is the validity of the district court's

denial of Willis's motion to dismiss count two of the indictment.

II. DISCUSSION

Willis contends that count two—possession of a firearm by a

convicted felon—should be dismissed because he pleaded nolo

contendere to the alleged predicate offenses and that such a plea

does not amount to a prior "conviction" within the meaning of 18

U.S.C. § 922(g)(1). This section provides that it shall be

unlawful for any person "who has been convicted in any court of a

crime punishable by imprisonment for a term exceeding one year ...

to ship or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or transported in

interstate or foreign commerce." 18 U.S.C. § 921(a)(20), added in

1986 as part of the Firearms Owners Protection Act, Pub.L. No. 99-

308, 100 Stat. 449, provides in pertinent part: "What constitutes

a conviction of [a crime punishable by imprisonment for a term

exceeding one year] shall be determined in accordance with the law

right, on appeal from the judgment, to review of the
adverse determination of any specified pretrial motion.
A defendant who prevails on appeal shall be allowed to
withdraw the plea.
of the jurisdiction in which the proceedings were held."4 Thus, in

this case, Florida law is determinative, and the narrow issue

before the court is whether Willis has been "convicted of a crime

punishable by imprisonment for a term exceeding one year" under

Florida law.

Although the issue of whether a nolo contendere plea without

an adjudication of guilt is a conviction within the meaning of

Florida law is one of first impression in this court, this issue

has been addressed by the United States District Court for the

Northern District of Florida in United States v. Thompson, 756

F.Supp. 1492 (N.D.Fla.1991). In United States v. Thompson, 756

F.Supp. 1492 (N.D.Fla.1991). In Thompson, the defendant was

charged under section 922(g)(1) with four counts of receiving

firearms after having been convicted of a felony. The defendant's

prior, alleged "convictions" were nolo contendere pleas to charges

brought against him by the State of Florida for robbery and

aggravated battery. On the defendant's motion, the court dismissed

the four section 922(g)(1) counts, finding that the defendant had

not been "convicted" of a prior felony within the meaning of

section 922(g)(1). The court explained that since section

921(a)(20) had been added by Congress in 1986, the law of the state

in which the proceeding was held determines whether a prior

conviction is a "conviction" within the meaning of section

4
Congress added this section in 1986 with the express intent
that "state law should govern in these matters." S.Rep. No. 98-
583, 98th Cong., 2d Sess. 7 (1984). Prior to the 1986 amendments
to section 922, the courts looked exclusively to federal law to
define "convicted" for the purposes of 18 U.S.C. § 922(g)(1).
See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103
S.Ct. 986, 74 L.Ed.2d 845 (1983).
922(g)(1). After an exhaustive review of Florida jurisprudence on

the issue, the court concluded: "[W]here, as here, a nolo plea is

being used as an essential element of another offense, Florida law

would not consider such plea to be a "conviction'." Id. at 1497.

Thompson has since been followed in United States v. Gispert, 864

F.Supp. 1193 (S.D.Fla.1994); United States v. Lester, 785 F.Supp.

976 (S.D.Fla.1991); and Snyder v. State of Florida, 650 So.2d 1024

(Fla.2d Dist.Ct.App.1995), affirmed, 673 So.2d 9 (Fla.1996). See

also Castillo v. State of Florida, 590 So.2d 458, 461 (Fla.3d

Dist.Ct.App.1991) (holding "conviction" within the meaning of the

Florida felon in possession of a firearm law (section 790.23,

Florida Statutes (1989)) requires an adjudication of guilt).

The court in Thompson discussed United States v. Grinkiewicz,

873 F.2d 253 (11th Cir.1989), and United States v. Orellanes, 809

F.2d 1526 (11th Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct.

55, 102 L.Ed.2d 33 (1988)—the cases relied upon by the government

in this appeal—but found these cases inapposite. In Grinkiewicz

and Orellanes, the issue was whether a plea of guilty followed by

a withholding of adjudication constituted a conviction under

Florida law for the purposes of 18 U.S.C. § 922(h)(1).5 Relying on

5
This section provides:

It shall be unlawful for any individual, who to
that individual's knowledge and while being employed
for any person described in any paragraph of subsection
(g) of this section, in the course of such employment—

(1) to receive, possess, or transport any firearm
or ammunition in or affecting interstate or
foreign commerce; or

(2) to receive any firearm or ammunition which has
been shipped or transported in interstate or
State v. Gazda, 257 So.2d 242 (Fla.1971), the Orellanes court held

"the term "conviction' means determination of guilt by verdict of

the jury or by plea of guilty, and does not require adjudication by

the court." Orellanes, 809 F.2d at 1528 (quoting Gazda, 257 So.2d

at 243-44) (internal quotations omitted) (emphasis added). The

court in Grinkiewicz stated that it was bound by the explicit

holding in Orellanes. Grinkiewicz, 873 F.2d at 254. The Thompson

court found Orellanes and Grinkiewicz not to be controlling based

on its conclusion that "under Florida law, defendant's nolo plea is

not the equivalent of a guilty plea." United States v. Thompson,

756 F.Supp. 1492, 1497 (N.D.Fla.1991) (emphasis added). In

reaching this conclusion, the court relied on the following

language from Garron v. State, 528 So.2d 353 (Fla.1988):

The plea of guilty is an absolute condition precedent before
the lack of adjudication can be considered a conviction.
Here, appellant plead nolo contendere to the aggravated
assault charge and received no adjudication of guilt. It does
not follow from McCrae [v. State, 395 So.2d 1145 (Fla.1980),
cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486
(1981) (holding that a "conviction" used as an aggravating
factor for the imposition of the death penalty means a plea of
guilty even without an adjudication of guilt) ] that a plea of
nolo contendere amounts to either a confession of guilt or a
"conviction" for purposes of capital sentencing proceedings.
A nolo plea means "no contest," not "I confess." It simply
means that the defendant, for whatever reason, chooses not to
contest the charge. He does not plead either guilty or not
guilty, and it does not function as such a plea.

Thompson, 756 F.Supp. at 1496-97 (quoting Garron, 528 So.2d at

360). Although Garron addressed the issue of whether a nolo

contendere plea by the defendant to an earlier charge was an

aggravating circumstance for the purposes of imposing the death
penalty in a first-degree murder case, its discussion of the effect

foreign commerce.
of the nolo contendere plea under Florida law is clearly applicable

to the case at hand. According to Thompson and Garron, as well as

Gazda, a conviction under Florida law requires either an

adjudication of guilt or a guilty plea. Moreover, a nolo

contendere plea is "not the equivalent of a guilty plea."

Thompson, 756 F.Supp. at 1497.

We find Chief Judge Stafford's exhaustive review of Florida

law on this issue in Thompson to be persuasive. Willis pleaded

nolo contendere to the felony charges underlying count two of the

present indictment, and adjudication of guilt was withheld.

According to the cases discussed above, Willis has not been

"convicted" of a felony under Florida law. Therefore, we hold that

section 922(g)(1) is inapplicable and that the district court erred

in denying Willis's motion to dismiss count two of the indictment.

Despite the recent pronouncement by the Florida Supreme Court

in Garron and the Northern District of Florida's Thompson opinion,

the government asserts that the district court was correct in

finding that Willis had been convicted of a felony within the

meaning of section 922(g)(1). The government bases its contention

on United States v. Jones, 910 F.2d 760 (11th Cir.1990), and

Maxwell v. State, 336 So.2d 658 (Fla. 2d Dist.Ct.App.1976).6

6
In addition, the government cites in its brief United
States v. Bruscantini, 761 F.2d 640 (11th Cir.), cert. denied,
474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985), and United
States v. Garcia, 727 F.2d 1028 (11th Cir.1984), in which,
relying on Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
103 S.Ct. 986, 74 L.Ed.2d 845 (1983), we held a plea of nolo
contendere that results in a withheld adjudication is a
"conviction" for purposes of 18 U.S.C. § 922(g)(1). However, in
these cases we looked to federal law. The 1986 amendments to the
federal firearm statutes effectively overruled these cases,
making "the law of the jurisdiction in which the proceedings were
 In Jones, the issue before this court was whether "a prior

state court case wherein the defendant enters a nolo contendere

plea and adjudication is withheld can be used as a "conviction' to

make the defendant eligible for career offender status under

section 4B1.1 of the Sentencing Guidelines. "7 Jones, 910 F.2d at

761 (emphasis added). The court held that the defendant's prior

offense was a conviction for the purposes of Section 4B1.1.

However, Jones is not controlling in the case sub judice for the

reasons stated in United States v. Mejias, 47 F.3d 401 (11th

Cir.1995), a subsequent Eleventh Circuit opinion. In Mejias the

issue was whether a plea of nolo contendere to a felony in Florida

state court, where adjudication was withheld, constitutes a "prior

conviction" for purposes of a sentencing enhancement under 21

U.S.C. § 841(b)(1)(B).8 This court answered affirmatively, stating

that "[t]he meaning of the word "conviction' in a federal statute

is a question of federal law unless Congress provides otherwise"

and that "there is nothing in [18 U.S.C. §] 921(a)(20) to suggest

held," i.e., state law, controlling. See 18 U.S.C. § 921(a)(20).

7
U.S.S.G. § 4B1.1, entitled "Career Offender," provides in
part:

A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time of the
instant offense, (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense, and (3) the defendant has
at least two prior felony convictions for either a
crime of violence or a controlled substance offense.
8
Section 841(b)(1)(B) provides enhanced penalties for any
defendant convicted of manufacturing, distributing, or dispensing
certain quantities of certain controlled dangerous substances who
"commits such a violation after a prior conviction for a felony
drug offense has become final."
that Congress intended that the definition of a conviction should

depend upon state law, rather than federal law." Id. at 403.

Similarly, the statute at issue in Jones, section 4B1.1 of the

Sentencing Guidelines, does not indicate that state law should

govern its application. Therefore, in Jones, as in Mejias, federal

law, not state law, was controlling.

In contrast to the governing statutes in Jones and Mejias,

section 922, which is at issue in the present case, provides

explicitly "[w]hat constitutes a conviction [for the purposes of

this section] shall be determined in accordance with the law of the

jurisdiction in which the proceedings were held." 18 U.S.C. §

922(a)(2) (emphasis added). Jones and Mejias, by their own terms,

applied federal law and, therefore, have no bearing on the issue

before us: whether a nolo contendere plea is a "conviction" under

Florida law.

Finally, the government submits that Maxwell v. State, 336

So.2d 658 (Fla. 2d Dist.Ct.App.1976), a 1976 opinion from the

Florida Second District Court of Appeals supports its contention

that a nolo contendere plea is a conviction under Florida law.

Even if this is presumed to be correct, Maxwell has been overruled

by the subsequent, more explicit decision by the Florida Supreme

Court in Garron v. State, 528 So.2d 353 (Fla.1988).

III. CONCLUSION

Willis was charged with a violation of 18 U.S.C. § 922(g)(1),

possession of a firearm by a convicted felon. As his alleged,

predicate "conviction," Willis pleaded nolo contendere to charges

brought against him by the State of Florida for carrying a
concealed firearm and grand theft of a firearm. 18 U.S.C. §

922(a)(20) states that "conviction" within the meaning of Section

922(g)(1) is to be determined in accordance with the law of the

jurisdiction in which the proceeding was held. Florida law

provides that a conviction requires either an adjudication of guilt

by verdict of the jury or a plea of guilty. Garron v. State, 528

So.2d 353, 360 (Fla.1988); State v. Gazda, 257 So.2d 242, 243-44

(Fla.1971); See also United States v. Thompson, 756 F.Supp. 1492

(N.D.Fla.1991). A nolo contendere plea, however, does not amount

to confession of guilt. Gazda, 257 So.2d at 243-44; Thompson, 756

F.Supp. at 1496. Thus, a nolo contendere plea is not a conviction

under Florida law. Because Willis had not been "convicted" of a

felony under Florida law, section 922(g)(1) is inapplicable, and

the district court erred by refusing to dismiss count two of

Willis's indictment.

The order of the district court is REVERSED, Willis's

conviction under 18 U.S.C. § 922(g)(1) is VACATED, and this case is

REMANDED for resentencing in accordance with this opinion.