United States v. Timothy Miller

DAUGHTREY, J., delivered the opinion of the court, in which COLE, J., joined.

BARZILAY, J. (pp. 824-826), delivered a separate dissenting opinion.

OPINION

In this sentencing appeal, we are asked to determine whether a sentence of probation under Georgia’s first-offender drug sentencing scheme constitutes a “prior conviction for a felony drug offense [that] has become final,” as provided in 21 U.S.C. § 841(b)(1)(A). The district court held that defendant Miller’s Georgia conviction triggered application of § 841(b)(1)(A), the effect of which was to double the mandatory minimum sentence for his federal conviction under § 841(a) from ten years to 20 years. Miller appeals the sentencing order, conceding that the “deferred adjudication of guilt” entered in the Georgia case was a “prior conviction for a felony drug offense,” but contending that the Georgia conviction never became “final” and was therefore not properly considered in calculating his sentence in this case.1 Because we find no error in the sentencing order, we affirm the district court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Timothy Miller was initially indicted on one count of conspiracy to possess with intent to distribute methamphetamine; four counts of possession with intent to distribute and distribution of methamphetamine; one count of possession with intent to distribute and distribution of oxycodone; and carrying a firearm during and in relation to a drug trafficking crime. That indictment also included a forfeiture provision covering $1,418 in cash, a .32 caliber pistol, and a box of .32 caliber ammunition. When Miller later failed to appear for trial, he was arrested and indicted for failure to appear in violation of 18 U.S.C. § 3146(a)(1). He eventually pleaded guilty to all counts in both indictments.

Prior to sentencing on the drug-trafficking counts under 21 U.S.C. § 841(a), the government filed notice pursuant to 21 U.S.C. § 851 of its intent to seek an enhanced punishment under 21 U.S.C. § 841(b)(1), which provides, in relevant part:

[A]ny person who violates subsection (a) of this section shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment ....

21 U.S.C. § 841(b)(1)(A). The § 851 notice established that the defendant had pleaded guilty to possession of amphetamine in a Georgia state court in 1986 and was sentenced to two years probation under the state’s first offender statute. According to a transcript of the sentencing hearing, the state court judge explained the alternative sentencing scheme in this way:

[Technically the Court would withhold adjudication of guilt which means technically I don’t impose a finding of guilt on you. I impose sentence but really— it’s not like a judgment or a criminal judgment. That’s withheld. If you don’t get into any trouble and don’t violate the law or your probation for the next two years, then you won’t have any record. It will be just like you never had a record at all on this.

The defendant’s presentence report indicates that he was not convicted again until he was charged with the offenses in this case.

Given the defendant’s 1986 conviction, the district court felt constrained to impose the mandatory minimum sentence of 20 years in prison required by statute, while at the same time recognizing that the result seemed “particularly harsh” in terms of the passage of time since the prior conviction and “in' view of the language the [state] court used in sentencing this defendant, assuring him that he would have no criminal record whatsoever.” Nevertheless, the court recognized that it was “obligated to follow the law, whether we agree with it or not.” As a result, the defendant received concurrent 240-month sentences on the drug-trafficking counts and a 60-month consecutive sentence on the weapons count, for a total effective sentence of 300 months.

The defendant now appeals the district court’s sentencing order with regard to his drug convictions.

DISCUSSION

The defendant claims that the district court erred in imposing a 20-year minimum sentence on the basis of his 1986 conviction on the ground that, under the terms of the Georgia first offender statute, it never became “final” as required by 28 U.S.C. § 841(b)(1). Contending that “there is a distinction between a prior conviction and a prior conviction that has become final,” the defendant points out that a formal judgment of conviction was never entered in the Georgia case and argues from this fact that his prior conviction cannot be considered “final” for purposes of sentencing under § 841(b).

This argument is not supported by either state or federal law. The Georgia penal code contains a first-offender sentencing provision that permits a two-year probationary period in lieu of incarceration. Successful completion of probation entitles a first-offender to “be discharged without court adjudication of guilt” and, as a result, “the defendant shall not be considered to have a criminal conviction.” GA. CODE ANN. § 42-8-62(a).2 For purposes of interpreting § 841(b)(1), however, “ ‘the meaning of the phrase “[has] become final” is a question of federal law rather than state law.’ ” United States v. Walker, 160 F.3d 1078, 1093 (6th Cir.1998) (quoting United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir.1997)). Moreover, we 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. Walker, 160 F.3d at 1093. See also United States v. Lovell, 16 F.3d 494, 497 (2nd Cir.1994) (collecting cases from other circuits).

Moreover, contrary to the defendant’s contention, his 1986 state conviction could and did become final under Georgia state law. In 1985, the Georgia Court of Appeals ruled that “first offender status takes the place of a ‘sentence’ and once imposed upon a criminal defendant, his case assumes the mantle of finality necessary to bring a direct appeal of his conviction .... ” Dean v. State, 177 Ga.App. 123, 338 S.E.2d 711, 712 (1985). Hence, Miller was entitled to appeal his conviction as of the date of his sentence, February 12, 1986. See Ga.Code Ann. § 5-6-34. The time for doing so expired 30 days later, on March 12, 1986. Ga.Code Ann. § 5-6-38. His conviction was certainly “final” under the First Offender Act on that date, both under state law and for purposes of federal sentencing. See United States v. Petros, 747 F.Supp. 368, 372 n. 8 (E.D.Mich.1990), cited with approval in United States v. Hughes, 924 F.2d 1354 (6th Cir.1991); see also United States v. Smith, 897 F.2d 1168 (D.C.Cir.1990) (this construction of finality applies equally to first offender sentences of probation); United States v. Morales, 854 F.2d 65 (5th Cir.1988) (same).

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. See, e.g., Dickerson v. New Banner Institute Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983); Hagins v. United States, 267 F.3d 1202, 1208 (11th Cir.2001); Cisneros, 112 F.3d at 1272, 1282. As the court noted in Petros, the policy behind state first-offender provisions and similar alternative sentencing statutes is “to allow first offenders, who are often youthful, an opportunity to straighten themselves out on the road of life without the baggage of a drug conviction on their record” and is meant “as an incentive to learn a lesson ... [but] is clearly not meant to provide them with a technical legal advantage if, not having learned a lesson, they continue their criminal conduct.” 747 F.Supp. at 376. In the wake of continued criminal conduct, first-offender sentences are considered “prior offenses” under § 841 that become “final” at the point at which they are no longer appealable.

CONCLUSION

For the reasons set out above, we conclude that the district court did not err in calculating the defendant’s sentence in this ease, and we therefore AFFIRM the judgment entered by the district court.