United States v. Horace Benson ( 1979 )

EUGENE A. WRIGHT, Circuit Judge:

Benson appeals from his conviction of violating 18 U.S.C. § 922(h)(1), receipt of a firearm shipped in interstate commerce by one convicted of a crime punishable by imprisonment for more than one year. We affirm.

This case comes before us for the second time. Appellant pleaded guilty pursuant to a negotiated plea bargain in June 1977. We vacated, holding that Benson could not enter a conditional plea of guilty. Because we had not previously ruled on the validity of the conditional guilty plea, Benson was given the opportunity to withdraw his plea and to plead anew. United States v. Benson, 579 F.2d 508 (9th Cir. 1978).

On remand, he was tried and convicted by a jury and sentenced to five years probation.

It is undisputed that Benson received a firearm which had been shipped in interstate commerce. His sole contention on the merits is that the trial court erred in ruling that his earlier state conviction satisfied the prior conviction element of § 922(h)(1).¹

Benson pleaded guilty in 1974 to a charge of possession of a controlled substance in violation of Illinois’ Controlled Substance Act, Ill.Rev.Stat. ch. 561/2, § 1402. Violation of § 1402 is a felony and carries a ten year maximum prison term. The state court sentenced Benson to 30 months of probation.

It is not clear on the record whether he was “convicted” under Illinois law.² Whether he was convicted for purposes of § 922(h)(1), however, is ultimately a question of federal law. United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979); United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976). See also Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946); United States v. Herrell, 588 F.2d 711 (9th Cir. 1978); Hyland v. Fukuda, 580 F.2d 977, 980-81 (9th Cir. 1978); United States v. Locke, 542 F.2d 800, 801 (9th Cir. 1976); United States v. Potts, 528 F.2d 883, 887 (9th Cir. 1975) (en banc) (Sneed, J., concurring in result).

The Supreme Court has declared that

A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.

Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See also Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). After explaining to Benson the consequences of pleading guilty to the charge of possession of a controlled substance, the Illinois court ordered that his plea “be received and accepted.” We believe the court’s acceptance and subsequent sentencing constitute a “conviction” under § 922(h)(1).

In Locke, we were faced with a claim similar to that made here. Locke pleaded guilty to a charge of burglary in the nighttime. The state court ordered under an Idaho statute that judgment be withheld for a period of three years and that Locke be placed on probation. We held that under “controlling federal law,” Locke had been convicted of a felony. 542 F.2d at 801.³

We find that Locke controls Benson’s claim and thus reject the asserted claim of error.

AFFIRMED.

1 . Benson’s attack on the constitutionality of § 922(h)(1) “is expressly foreclosed by our pri- or opinion in United States v. Haddad, 558 F.2d 968, 972-74 (9th Cir. 1977).” United States v. Benson, 579 F.2d at 509.

2 . The district court believed that Benson was prosecuted under § 410 of Illinois’ Food and Drug law which provides that for first offenders a court,

without entering a judgment of conviction and with the consent of the accused, may defer further proceedings and place him on probation . . . Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualification or disabilities imposed by law upon conviction of a crime.

Ill.Rev.Stat. ch. 561/2, § 1410.

The documents submitted by the government to prove conviction do not indicate whether Benson was sentenced under § 1410 or under Illinois’ regular sentencing statute. The “Specifications and Certificate of Conditions of Probation Sentence” indicates that probation was granted under Illinois Revised Statutes, ch. 38, § 1005-6-3(c). That statute provides only that “[a]n offender sentenced to probation or to conditional discharge be given a certificate setting forth the conditions.” Both parties argue that Benson was not sentenced to conditional discharge. If he was sentenced to probation, nothing in the statue or certificate indicates whether probation was granted pursuant to a judgment of conviction or pursuant to a deferred prosecution under § 1410.

The record of the state court proceedings in the Circuit Court of Cook County, Illinois indicates that the “Judgment of the Court is judgment on the plea.” However, the court also ordered the “cause continued to March 31, 1977.” It is not clear what effect this language has under Illinois law.

3 . The court also found that Locke had been convicted under the applicable state law. 542 F.2d at 800.