UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
VICTOR CABRERA, DEFENDANT-APPELLANT
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A state court's vacation of a felony conviction after a firearm purchase does not negate a federal conviction for receipt of a firearm by a felon if the conviction was valid at the time of purchase.
Cabrera, previously convicted of a state felony, purchased a firearm. After being indicted on federal charges for receipt of a firearm by a felon, the…
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PER CURIAM:
Cabrera was convicted of receipt by a felon of a firearm that had been transported in interstate and foreign commerce, 18 U.S.C. §§ 922(h)(1) and 922(a).
Previously Cabrera was convicted in state court of a felony of cocaine possession. He pleaded guilty, and the trial court accepted and entered an order “withholding adjudication.”1
After his indictment on the federal charge and before trial the state court vacated Cabrera’s underlying felony conviction. At the federal trial Cabrera sought to introduce evidence of this vacation, and the court sustained the government’s objection to the evidence as immaterial since the state court conviction, and the order withholding adjudication, were in effect when Cabrera purchased the gun.
Whether one is convicted within the language of the Act is a question of federal law even if the underlying offense and punishment are defined by state law. Dickerson v. New Banner Institute Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1985).
The district court was correct. The cases make clear that one who is or has been a convicted felon must clear his status, if it is unclear, before buying a firearm. Lewis v. U.S., 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Lewis was a conviction under 18 U.S.C.App. § 1202(a). U.S. v. Davis, 773 F. 2d 1180 (11th Cir.1985) applied Lewis to a conviction under § 922(h). More recently the Supreme Court addressed the issue of whether expunging a state conviction can release a felon from the possibility of conviction under § 922(h)(1). Dickerson v. New Banner Institute Inc., supra. Although Dickerson had his conviction expunged pursuant to state law, the expunction did not alter the “historical fact of the conviction.” And he had not followed available federal procedures for removing the federal firearms disability. See 18 U.S.C. § 925(c).
What Cabrera did, and all he did, was, after indictment and arrest, secure an order of the state court vacating the predicate offense. This is not enough.2
Cabrera contends that Lewis and Dickerson should be extended to a conviction vacated after the firearm was received or possessed. The plain language of the Act and the principles laid out in Lewis, Dickerson and Davis show that expunction of the underlying conviction after the purchase of the firearm has no effect on a conviction for § 922(h) purposes.
AFFIRMED.
. This constitutes a conviction under 18 U.S.C. § 922, and Cabrera does not contend otherwise. Dickerson v. New Banner Institute Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983); U.S. v. Garcia, 727 F. 2d 1028 (11th Cir.1984).
. Vacation or reversal on a direct appeal of the conviction does eliminate the conviction as a predicate offense. Lewis, supra.
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United States v. Orestes Hernandez, 107 F.4th 965 (11th Cir. 2024)…thing that mattered was that the defendant was under a judgment of convic- tion at the time of receipt, and that it was “not enough” for him to demonstrate that he later “secure[d] an order vacating the pred- icate offense.”United States v. Cabrera, 786 F.2d 1097, 1098 (11th Cir. 1986) (per curiam). In the end, the "wipes the slate clean" theory simply can't overcome the clear textual and contextual indications that § 403(b)'s reference to “a sentence” that “has been imposed” == USCA11 Case: 22-13311 Docum…1 / 2
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Slugocki v. US, 988 F. Supp. 1443 (S.D. Fla. 1997)…nal claim". Indeed he has not even bothered to couch his claim in constitutional terms. What he seeks instead is a mere interpretation of the term "conviction" as used in § 8148(a): A task properly before the Secretary. See United States v. Cabrera, 786 F.2d 1097, 1098 (11th Cir. 1986) ("[w]hether one is convicted within the language [of a federal statute] is a question of federal law"). Accord Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991-92, 74 L.Ed.2d 845 (1985). Stated…
Authorities Cited
- Lewis v. United States, 445 U.S. 55 (U.S. 1980)
- Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (U.S. 1983)
- United States v. Garcia, 727 F.2d 1028 (11th Cir. 1984)
- United States v. Davis, 773 F.2d 1180 (11th Cir. 1985)