explaining that a conviction becomes final for purposes of section 841(b) “when the time for taking a direct appeal from the judgment of conviction has expired”
How later courts described this case
- explaining that a conviction becomes final for purposes of section 841(b) “when the time for taking a direct appeal from the judgment of conviction has expired”
- defendant’s deferred entry of judgment became a final conviction thirty days after he was sentenced to probation, because that was the time provided for appeal under Georgia law
- “It has long been recognized that alternative sentencing such as that utilized by Georgia in its first-offender provision does not prevent the underlying offense from being treated as a prior conviction for purposes of federal sentencing statutes.”
- “[W]e have joined other federal circuit courts in adopting the standard for determining finality: a conviction becomes final for the purpose of sentencing when the time for taking a direct appeal from the judgment of conviction has expired.”
Written by the judges who cited it.
The opinion
JUDITH M. BARZILAY, Judge.
I respectfully dissent as I believe that the central issue in this case is whether Miller’s 1986 guilty plea to narcotics possession in a Georgia court that resulted in a two-year probation under the state’s first offender act was a “conviction” under 21 U.S.C. § 841 (b)(1)(A). 1
Section 841(b)(1) provides for sentence enhancement where the defendant com *825 mits the federal violation “after a prior conviction for a felony drug offense has become final .... ” 21 U.S.C. § 841 (b)(1)(A) (emphasis added). Miller pleaded guilty to a violation of the Georgia Controlled Substance Act in 1986 and was placed on two years of probation as a first time offender. J.A. 159.
Under federal law and the United States Constitution, a state’s interpretation of its laws must be given full faith and credit. 28 U.S.C. § 1738 (“The Acts of the legislature of any State .... and judicial proceedings of any court of any such State .... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”) (emphasis added); see U.S. CONST. art. IV, § 1. Thus, the Georgia State Supreme Court has ultimate say over the meaning and effects of Georgia law. As the majority concedes, the Georgia first offender statute provides that
Upon fulfillment of the terms of probation, ... the defendant shall be discharged without court adjudication of guilt. [This] discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.
GA. CODE ANN. § 42-8-62(a) (emphasis added). According to the statutory text, a defendant, such as Miller, who successfully completes his probation period will not have a criminal conviction on his record. Underscoring this purpose, the Georgia Supreme Court likewise held that “[a]ny probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction.” State v. Wiley, 233 Ga. 316, 317 , 210 S.E.2d 790, 791 (1974), on remand 133 Ga.App. 712 , 213 S.E.2d 15 (1975) (emphasis added); see Davis v. State, 269 Ga. 276 , 496 S.E.2d 699 (1998) (underlying humanitarian purpose of first offender statutes is to protect first offender from stigma of having criminal record unless adjudication of guilt entered for crime for which defendant was given first offender treatment); see also Jones v. State, 212 Ga.App. 682 , 442 S.E.2d 880 (1994) (prior first offender record may not be used to sentence defendant as recidivist for later crime if conditions of probation under prior first offender treatment fulfilled and defendant discharged without adjudication of guilt).
In the case at bar, Miller completed his probation sentence, and there is no evidence that he violated his probation or that his guilt was adjudicated. Under Georgia law, he therefore does not have a conviction for his violation of the Georgia Controlled Substance Act in 1986. Consequently, Miller cannot qualify for a 21 U.S.C. § 841 (b)(1) sentence enhancement without our completely disregarding 28 U.S.C. § 1738 .
In addition, the case law the majority cites, which construes violations of first-time offender statutes as “convictions” proves factually distinguishable from the instant case. In Dickerson v. New Banner Inst., Inc., the Supreme Court ruled only on the meaning of “conviction” in the Gun Control Act of 1968 and explicitly stated that “the terms ‘convicted’ or ‘conviction’ do not have the same meaning in every federal statute.” 460 U.S. 103 , 112 n. 6, 103 S.Ct. 986 , 74 L.Ed.2d 845 (1983). In Dean v. State, 2 the Georgia Court of Ap *826 peals entered adjudication of guilt for the defendant because he violated the terms of his probation-something Miller did not do. 177 Ga.App. 123, 123-24 , 338 S.E.2d 711, 712 (1985). Likewise, United States v. Petros concerned a defendant’s violation of federal law while on probation stemming from first-time offender statute. 747 F.Supp. 368 (E.D.Mich.1990). Given the terms of the Georgia statute, which turns upon a defendant’s behavior during the probationary period, these cases do not speak to the statute’s effect when a defendant successfully completes his probation, as did Miller. 3
Therefore, I would return this case to the district court for resentencing.
. Because determining whether a conviction exists is a question of law rather than fact, that Miller’s attorney apparently conceded that Miller had a conviction can have no bearing on this Court’s decision. See McKoy v. North Carolina, 494 U.S. 433, 445-46 , 110 S.Ct. 1227 , 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring); Shields v. Reader's Digest Ass’n, Inc., 331 F.3d 536 , 544 n. 8 (6th Cir.2003) ("[B]ecause the parties have asked us to resolve legal questions on appeal, any concessions or assumptions by the Defendants are of no consequence to our analysis.”). It is the role of the courts, not the parties, to decide the law, and a court cannot simply acquiesce to an erroneous legal concession that then becomes precedent. Cf. McKoy, 494 U.S. at 446 , 110 S.Ct. 1227 (Blackmun, J., concurring).
. In Dean v. State, the Georgia Court of Appeals also focused on the interpretation of GA. CODE ANN. § 42-8-64, which provides that ''[a] defendant sentenced pursuant to this arti *826 cle shall have the right to appeal in the same manner and with the same scope and same effect as if a judgment of conviction had been entered and appealed from.” GA. CODE ANN. § 42-8-64 (emphasis added). The court lifted the term “conviction” from the statute, removed it from its context, and then seemingly equated "conviction” with a "sentence.” Dean, 177 Ga.App. at 124 , 338 S.E.2d at 712 . This ambiguous use of the term then found its way into the majority opinion.
. It is important to note that the issue of whether Miller has a conviction involves an inquiry analytically distinguishable from, for example, whether a state law crime labeled a misdemeanor under state law and a felony under federal law constitutes a felony for federal law purposes. See, e.g., United States v. Rojas-Carillo, 2005 WL 3077130 , 2005 Fed.App. 0903N , No. 04-1743 slip op. at 6 (6th Cir. Nov. 17, 2005) (noting that Michigan designation of crime as "misdemeanor” does not preclude its classification as "felony” under federal law). This latter scenario exemplifies the phenomenon of predication, where "misdemeanor” and "felony” merely serve as descriptive labels of the undisputedly same criminal act. The case at hand, however, brings into question the inherent nature, or identity, of the subject matter: Is the end result of the Georgia statutory scheme in Miller's case a conviction?