UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GUSTAVO GARCIA A/K/A "POPEYE", DEFENDANT-APPELLANT
PER CURIAM:
Gustavo Garcia was convicted in a jury trial of receiving ammunition after having been convicted of a felony. 18 U.S.C. Sec. 922(h)(1) (1976). To the underlying felony charge of grand theft in Florida, Garcia had pleaded nolo contendere, adjudication was withheld, and he was given probation, which he successfully served. Section 948.01, Fla.Stat. The district court, after a hearing in camera, held that this plea was voluntary for the purpose of admitting evidence of that Florida proceeding to prove the necessary prior felony conviction. Nothing is presented to us indicating that that finding was clearly erroneous.
Garcia’s contention that a state procedure for withholding adjudication of a criminal charge will not support a conviction under 18 U.S.C. Sec. 922(h)(1) (1976) of receiving ammunition after having been convicted of a felony is foreclosed by Dickerson v. New Banner Institute, Inc., -- U.S. --, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). There is no problem of Dickerson being applied retroactively to Garcia. The prevailing law in the former Fifth Circuit prior to Dickerson was that state statutes that withheld finality do not prevent conviction within the meaning of Sec. 922. U.S. v. Lehmann, 613 F. 2d 130 (5th Cir.1980); U.S. v. Padia, 584 F. 2d 85 (5th Cir.1978).
AFFIRMED.
Cases With Similar Vibessemantic neighbors from the corpus
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Burkett v. State, 518 So. 2d 1363 (Fla. 1st DCA 1988)…d its notation by the state court followed by a sentence of probation is equivalent to being "convicted,” although the conviction is expunged following a successfully served term of probation, can be applied retroactively); United States v. Garcia, 727 F. 2d 1028 (11th Cir. 1984) (the fact that adjudication was withheld when the defendant pled nolo contendere to the predicate felony charge did not preclude a conviction for receiving ammunition after having been convicted of a felony); United States v. Woods…
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United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987)…victed” of a crime punishable by imprisonment for a term exceeding one year. Orellanes claims that Dickerson cannot be retroactively applied to his guilty plea for the state crimes in 1981. Rejecting an identical argument in United States v. Garcia, 727 F. 2d 1028, 1029 (11th Cir.1984), this circuit held “[t]he contention that a state procedure for withholding adjudication of a criminal charge will not support a conviction under 18 U.S.C. § 922(h)(1) ... is foreclosed by [.Dickerson ]. There is no problem of…
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United States v. Willis, 106 F.3d 966 (11th Cir. 1997)…or transported in interstate or foreign commerce. .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.…
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- Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (U.S. 1983)
- United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980)
- United States v. Padia, 584 F.2d 85 (5th Cir. 1978)