United States v. Amanda K. Tankersley

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3799
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Amanda K. Tankersley, *
*
Appellant. *
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Submitted: June 18, 2004
Filed: July 13, 2004
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Before SMITH, BEAM, and COLLOTON, Circuit Judges.
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BEAM, Circuit Judge.
Amanda Tankersley appeals her conviction for being a felon in possession of
a firearm. The issue on appeal is whether Tankersley's underlying burglary
conviction is an adequate predicate offense for the felon-in-possession charge. We
find that it is, and affirm the district court.1
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska, adopting the Report and Recommendation of the Honorable
David L. Piester, United States Magistrate Judge for the District of Nebraska.
I. BACKGROUND
Tankersley's underlying conviction was for felony burglary in California state
court. She pled guilty and received a suspended sentence, a fine, restitution,
community service, and three-years probation. During her three years of probation,
Tankersley failed to appear for several probation hearings, and once had her
probation revoked and a bench warrant was issued for her arrest. After she was
arrested and finally appeared, her probation was reinstated but transferred to
Nebraska. While on probation in Nebraska, she was arrested and charged with being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Tankersley moved to dismiss the indictment, arguing that under California law,
a suspended sentence does not constitute a judgment and therefore it cannot be used
as the predicate felony for felon in possession of a firearm. The district court denied
the motion, and Tankersley entered a conditional guilty plea, reserving her right to
appeal the predicate-felony issue.
II. DISCUSSION
We review de novo the district court's decision to deny a motion to dismiss.
United States v. King, 351 F.3d 859, 867 (8th Cir. 2003), cert. denied, 72 U.S.L.W.
3749 (U.S. June 14, 2004) (No. 03-1539). Defendant argues that this circuit's
decision in United States v. Stallings, 301 F.3d 919 (8th Cir. 2002), precludes her
California conviction from operating as a predicate offense for 18 U.S.C. § 922(g)(1).
In Stallings, we held that a suspended sentence is not a "judgment" under California
law, for purposes of applying a federal drug sentencing enhancement. 301 F.3d at
922. Stallings did not involve the federal gun statute at issue here.
We disagree with Tankersley's interpretation of the effect of Stallings on her
case. 18 U.S.C. § 922(g)(1) provides that "[i]t shall be unlawful for any person who
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has been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year" to possess a firearm. The statute does not require that the
defendant must have actually served the one year in prison. All it requires is that the
offense be punishable by incarceration for over one year. Felony burglary is such an
offense. And Tankersley was convicted of felony burglary when she pled guilty to
felony burglary. The law of the forum determines what constitutes a conviction, see
18 U.S.C. § 921(a)(20), and under California law, a guilty plea results in a conviction.
Stephens v. Toomey, 338 P.2d 182, 184 (Cal. 1959); see also People v. Banks, 348
P.2d 102, 106 (Cal. 1959) (holding that a guilty plea results in a "conviction" for
purposes of a recidivism statute).
Stallings does not change this. In Stallings, the defendant had pled nolo
contendere to the underlying conviction, rather than guilty, as Tankersley did here.
Furthermore, the Stallings court noted that the defendant's underlying probation had
not been revoked, which precluded a judgment from being entered under California
law. 301 F.3d at 922. Section 922 requires a prior conviction. 18 U.S.C. § 922(g)(1).
The record indicates that a conviction was entered against Tankersley. Indeed, we
fail to see how Tankersley could have been placed on probation and subject to its
restrictions without an underlying conviction. Accordingly, Stallings is
distinguishable and does not control the outcome here.
III. CONCLUSION
Tankersley was convicted of burglary in California, a predicate felony for
purposes of Section 922(g)(1), regardless of the sentence actually imposed. See
United States v. Sample, 136 F.3d 562, 564 (8th Cir. 1998) (holding that guilty plea
to a felony drug offense was a predicate felony under 18 U.S.C. § 922(g)(1), even
though defendant had not yet been sentenced for the prior felony conviction).
Accordingly, we affirm the district court.
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