United States v. Harry James Chubbuck

EDMONDSON, Before WILSON and *, MAGILL Judges. Circuit WILSON, Judge: Circuit Appellant, Harry Chubbuck, James ap- peals his conviction under 18 U.S.C. §§ 922(g)(1), 924(a)(2), felon possession of a firearm. He alleges that at the time arrest, of his he was not a felon under Florida law and as such could not be guilty of the offense. As there is no clear Flori- da court precedent state on the issue and Eleventh Circuit holds other- wise, we affirm Chubbuck’s conviction be- cause no error can be established.

BACKGROUND Harry (“Chubbuck”) James Chubbuck was arrested and charged in December of 1994 with one count of trafficking in co- caine and five possession counts of vari- ous narcotic pled substances. He the Circuit Court for the Fifteenth Judicial Circuit of Florida to the lesser included possession offense of of cocaine with intent to sell in March of 1996. See Fla. Stat. 817.563, § Ann. amended 2000 Fla. (C.S.H.B.2085) Sess. Law Serv. 00-320 (West). The court withheld Chubbuck’s adjudication and him sentenced to three years probation with the condition that he refrain from possessing firearms while on Bryn, Brenda Lauderdale, FL, Fort probation. Williams, Kathleen M. Def., Fed. Pub. 25, 1998, On March police arrested Fed. Office, Miami, Pub. FL, Defender’s Chubbuck for driving stolen car for Defendant-Appellant. possession of found in firearms the trunk. Jordan, Richardson, Adalberto Sally M. He was charged in federal court with be- Schultz, Herman, Anne R. Miami, Carol ing possession a felon in of a firearm.1 FL, for Plaintiff-Appellee. The charge grand theft auto nolle was

prossed. The state of Florida chose prosecute for this incident.

* Magill, Frank J. Honorable U.S. Judge subject instead penal- federal of state Circuit, Eighth for the sitting by designation. ties. weapons 1. The found posses- in Chubbuck's sion were manufactured out-of-state and thus charge of a felon when was fact buck of Flori the state July

On a firearm possession based revoked Chubbuck’s da prohibition brought. state’s his violation serving proba while firearm REVIEW OF STANDARD underly of the tion, him adjudicated offense, and sen trafficking ing cocaine object failed who to A defendant days jail.2 him to 60 tenced with or move to colloquy 11 the Rule to must sentencing, prior to plea his draw later, August on over a month A little United appeal.4 See error show 1998, indicted Chubbuck 27, jury a grand (11th 1318, 1322 Mosley, 173 F.3d v. 922(g)(1), §§ States violating Quinones, Cir.1999); v. 97 firearm. United States of a 924(a)(2), curiam). (11th Cir.1996) pled guilty 475 F.3d April Chubbuck In and affects or obvious is clear Plain error charge.3 the ques that call into rights those substantial again voiced sentencing, Chubbuck After “ ‘fairness, rep public or integrity, the tion regarding his the district concerns to judicial proceedings....’” utation charges understanding lack of Hernandez, 896 F.2d States United had that he him and belief against his Cir.1990) States United (quoting 523 counsel. assistance of ineffective received 1, 15, 84 105 S.Ct. Young, 470 U.S. the claims about specific was not heWhile Chubbuck, (1985)). Appellant, L.Ed.2d 1 in- assistance, did Chubbuck of ineffective Qui persuasion. See the burden bears a convict- as his status dicate unease about nones, at 475. his to withdraw asked ed felon. Chubbuck request stat- judge denied his but the plea DISCUSSION fully advised had been Chubbuck ing that colloquy and plea the a defen rights during options, his weighing of his After charges that he understood find or the other may indicated for one reason dant him. against despite po plead guilty advantageous it ability to government’s in the gaps tential array of motions an presented Chubbuck analyzing Therefore present evidence. attempt to have an pauperis in forma question the real this plea, a guilty or him reduced against charges voluntarily, made plea is whether all and denied them dropped. judge McCar See knowingly, intelligently. represent public defender to appointed 459, 462-63, States, U.S. 394 thy United sentencing issues. his him (1969); Mos 1166, 22 L.Ed.2d first 89 S.Ct. raises for the new Chubbuck’s counsel ley, 173 F.3d Chub- of whether appeal the issue time on in the record that There some indication probation is re is once 2.Under arraignment at the counsel while Chubbuck’s adjudicated, it is is and the voked sentence questions about whether Chubbuck had some by statute. as defined clearly "conviction” time the inci- a convict at was in fact Willis, 968- See States United dent, him subsequent that saw counsel Garron, Cir.1997); colloquy tire plea never raised through the curiam); (Fla.1988)(per Batchelor same concern. 1999). (Fla. DCA 1st result, after this had the offense occurred As that indicates review of record 4. While a date, Chub- question as to would no there be about expressed reservations some Chubbuck pos he as a felon at time status buck’s felon, say we cannot as a convicted his status the firearms. sessed level of rose to the any his comments objection. Chubbuck contends that even if the withheld colloquy

rest of the was conducted accord under Florida law. ing to the letter of the the fact that Eleventh holds Chubbuck was not informed that state law otherwise. We have twice held that a plea controlling as to of convic of guilty in court, Florida state even where tion is a mistake that nullifies colloquy. has been is a convic e.g., v. Telemaque, tion for purposes of 18 U.S.C. 922(g). curiam) Cir.2001)(per Orellanes, United States v. (holding that a district court prej commits (11th Cir.1987); udicial plain error when it fails to ade Grinkiewicz, (11th 873 F.2d quately inform a defendant of nature Cir.1989) curiam). (per change offense); Mosley, 173 F.3d at 1323 to this line of cases has been that a plea of (discussing complex that charges must be nolo contendere will not amount to a con explained to the fullest possible); extent fession of guilt necessary to prior establish United States v. Wiggins, 131 F.3d conviction. Willis, See United States v. curiam) (stat 1442-43 Cir.1997)(per Cir.1997), 968-69 but ing that there is no uniform method to see United States v. Drayton, 113 F.3d explain charges to a defendant that are (11th Cir.1997) curiam) (per heavily fact dependent). He advances that (holding that plea of nolo contendere charges against him complex, so an adjudication where is not withheld is a that it required an explanation that state law). conviction under Florida law perhaps controlled and an indication of what the law held with to regards his previous Our interpretations of Florida him, status. Unfortunately for it has been law were based on a series of cases that stated several times that crime “[t]he of conclude that a conviction requires either being felon possession in of a firearm is adjudication an guilt of or plea of guilty. easily understood.” United States v. Gazda, See State v. 257 So.2d Jones, Cir. (Fla.1971) (stating that “for purposes of curiam). 1998)(per 775.14, § construing ... the term ‘convic § 922(g)(1) tion’ states that means determination guilty by “[i]t of ver shall be any person unlawful for who has dict of by or jury plea guilty, of and been of, in any convicted a crime does require adjudication by the punishable by imprisonment for a court”); term State, Garron 528 So.2d exceeding year ... ship one or (Fla.1988) trans- curiam) (“[T]he (per plea of port commerce, or foreign interstate or guilty is absolute condition possess commerce, affecting or any fire- adjudication before the lack of be con can arm or ammunition....” “What consti- conviction”); State, sidered a Burkett tutes a of such a crime shall be (Fla. 1988) (hold 518 So.2d 1363 1st DCA determined in accordance with law of ing that guilt of is a conviction jurisdiction in which the proceedings for purposes of the posses state felon in 921(a)(20). were held.” 18 U.S.C. of sion a firearm statute regardless of status); appeal State,

Chubbuck but alleges Snyder that see because he was (Fla. 1995) (hold So.2d 1024 with 2d DCA withheld at the time possessed firearms, ing he that awaiting while adjudi he was of an not a sentence, convicted felon and cated guilty cannot be a defendant is not consid being of possession of a firearm. ered “convicted” of section argument (felon His rests on firearm)). his that belief a 790.23 means term “conviction” that “‘the held Therefore, interpreta- past on our based by verdict of guilty determination Chubbuck tion of does not guilty, jury plea or charged. as the offense ” Orel by the court.’ require to a series However, points Chubbuck Gazda, lanes, (quoting at su cases one district Likewise, 243-44). Grinkiew at as to raise doubt which court case preme mat on this on Orellanes merely relied icz that argument is His interpretation. our analysis. offering any new ter without under Florida meaning of “conviction” Grinkiewicz, As Chub- us requires and thus specific is context that strong evidence presented buck has statutory offense predicate at the to look fluid of “conviction” is 763 the definition Raulerson v. language. curiam) mat on this (Fla.2000) disagree no reason we see context-specific ter, in Florida with a (“the proceed as used will ‘conviction’ term we term a ‘chameleon-like’ analysis. been law has particular from the its has drawn as context “conviction” Viewing the term the term which statutory context source appropriate specific, the more Keirn, used”); 720 So.2d State that sur- law would be applicable (Fla. 1998), by, approved 4th DCA posses- unlawful own rounding Florida’s (“the (Fla.2000) ‘con term 763 So.2d statute, Fla. by a felon firearms sion of its examination of a close requires viction’ law in this The case Ann. 790.23. Stat. history legislative statutory context held varied. Burkett is limited but area Finelli, 744 State v. development”); convicted, pur- for that “a defendant 1999) (Fla. (per DCA 4th So.2d adjudi- when he is 790.23] poses of [section curiam) (stating that the term “conviction” 518 So.2d in trial court.” the cated “depending on meanings has varied pending to whether (referring at 1366 ap the word which specific statute he was as to whether creates doubt (Fla. So.2d 31 by, vacated pears”), trial). However, cases in two at convicted 2001) (affirming nonetheless context appeal at awaiting were where defendants term).5 specific nature violation, 790.23 of their section the time Orellanes, Furthermore, opinion our construe the chose to the courts this cases in point two on one favorable manner most of conviction Gazda, a Circuit, was based on State defendants, holding that thus relying Court decision Supreme disposition until two “convicted” Gazda, In different completely statute. State, 664 See Johnson appeal. adjudication withheld a defendant’s 1995); (Fla. 4th DCA So.2d aat complete treatment until he could Paralleling Snyder, 650 So.2d The defendant hospital. tuberculosis at hand Castillo closely the case more sentencing, for to the court failed to return Ap- Third District in which the question of whether raising thus concluded: for Florida peals Flori- purposes for valid sentence was had a in this case the defendant While On Sentences da’s Limitation Withheld record, prior proceed- prior criminal Gazda, 257 So.2d at Statute. withholding of in the had resulted ings stated no reason Orellanes This Court [section For adjudication. simply but opinion its on Gazda basing F.Supp. Thompson, 756 also federal district has 5. At least one (N.D.Fla.1991). recognized definition of the malleable Florida law. term under "conviction” 790.23], adjudicated we construe “conviction” to be guilty to be a “convicted mean an of guilt. Where McFadden, felon”. See 772 So.2d at 1215 adjudication has been the of- 5; n. Snyder, 673 So.2d at 10. McFad- fender is not a convicted felon. den’s holding together with the aforemen- (Fla. 1991) 3d DCA tioned cases further cast doubt on our curiam) (citations omitted).6 An exhaus prior interpretations of Florida law. tive search of the Florida Supreme Court yielded

records has no definitive statement The precedent that we have es on this issue. tablished on this always issue sought has supplemental As authority, Chubbuck the interpretation of Florida law in con does offer one case that strengthens his struing what a conviction is for purposes of claim. A recent Florida Supreme Court 924(a)(2). §§ 922(g)(1), We do case discussed as matter first-impres- not and cannot overrule sion whether a withheld con- Nonetheless, here. in order to remain stitutes a conviction for purposes of im- faithful to decisions, those we must contin McFadden, peachment. See State v. ually apply, seek to as both the statute and (Fla.2000). require, the relevant state law adopted McFadden “a definition of ‘convic- interpretation. It has become increasingly tion’ that requires guilt clear that perhaps our interpretation of or judgment of the trial Florida law was either in error or has court.” Id. at 1216. While recognizing changed, since but given defendant’s fail that the term “conviction” is still “chame- ure object any without definitive leon-like” in nature and context specific, authority from the Supreme Florida Court the court implicitly reaffirmed the holding that contradicts our precedent, of State v. Snyder, which we decline stated that for to, cannot,7 the felon in and in fact possession of find the district statute, firearm a defendant actually must committed error.

6. One analyzing Lester, court in a similar case stated United States v. F.Supp. that neither or Orellanes con- (S.D.Fla.1991)(quoting Grinkiewicz trolling they (N.D.Fla. because Thompson, were based on F.Supp. a misin- 1991)). terpretation of Florida law. See United States Santini, Ill, 1992, N.D. 1992 WL 159410 rule, prior “Under our panel (No. 15, 1992) 88 CR June (unpub- prior cannot holding overrule a one’s even lished). In another case also based on a though wrong”. convinced it is United States Statute, violation of the Federal Firearms Steele, Cir. court observed that: 1998) banc). (en liberty “[W]e not at are appears [There] be a perception common disregard binding case closely law that is so among persons involved in the Florida weakened, point has been rather defendant, justice system criminal that a overruled, directly than by Supreme withheld, whom has not League Court.” Lobbyists Fla. of Professional been “convicted” under Florida law. Pro- (11th Cir.1996). v. Meggs, 87 F.3d court, bation having officers of this served However, prior precedent rule would not probation as Florida joining officers before apply intervening on-point if case law from system, the federal have confirmed banc, that de- either this Court en the United States fendants in routinely by Florida are Court, advised Supreme Supreme or the practicing lawyers, by criminal defense FCC, Court existed. Co. v. Power Gulf officers, state prosecu- state Cir.2000); Venn v. St. tors, by judges, Co., that when Paul Fire & Marine Ins. they (11th Cir.1996); are McMillian, not “convicted" and Hattaway accordingly do rights. not lose their civil Cir.1990). 1445 n. 5

CONCLUSION law exists on definitive

Because no with guilty plea

whether under a conviction

withheld constitutes district find that the we accepting Chub- error plainly

did being the crime plea to

buck’s of a firearm. in possession

AFFIRMED.

EDMONDSON, Judge,

concurring: result.

I concur also, 243 F.3d 1316. SCIENCE, PLANT

MYCOGEN Inc.,

INC., Agrigenetics,

Plaintiffs-Appellants, COMPANY,

MONSANTO

Defendant-Appellee. 00-1127.

No. Appeals, Court of Circuit.

Federal 30, 2001. May

DECIDED:

Case Details

Case Name: United States v. Harry James Chubbuck

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 1, 2001

Citation: 252 F.3d 1300

Docket Number: 99-12066

Court Abbreviation: 11th Cir.