Case: 13-15874 Date Filed: 05/11/2016 Page: 1 of 5
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15874
________________________
D.C. Docket No. 1:13-cr-20334-CMA-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH PETER CLARKE,
BOBBY JENKINS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(May 11, 2016)
Before MARTIN and DUBINA, Circuit Judges, and RODGERS, * District Judge.
PER CURIAM:
*
Honorable Margaret C. Rodgers, Chief United States District Judge for the Northern
District of Florida, sitting by designation.
Case: 13-15874 Date Filed: 05/11/2016 Page: 2 of 5
Whether a conviction qualifies under
18 U.S.C. § 922(g)(1), the federal
felon-in-possession statute, is “determined in accordance with the law of the
jurisdiction in which the proceedings were held.”
18 U.S.C. § 921(a)(20).
Florida’s felon-in-possession statute prohibits a person from “own[ing] or [ ]
hav[ing] in his or her care, custody, possession, or control any firearm . . . if that
person has been . . . [c]onvicted of a felony in the courts of [Florida].”
Fla. Stat.
§ 790.23(1).
A year ago, we certified a question to the Florida Supreme Court asking
whether that State treats a guilty plea for a felony with adjudication withheld as a
“conviction” for purposes of § 790.23(1)(a). United States v. Clarke,
780 F.3d
1131 (11th Cir. 2015) (per curiam) (Clarke I). We revisit this appeal with the
benefit of that court’s clear response: “[F]or purposes of section 790.23(1)(a), a
guilty plea for a felony for which adjudication was withheld does not qualify as a
‘conviction.’” Clarke v. United States,
184 So. 3d 1107, 1108 (Fla. 2016) (Clarke
II). Based on this clear response, we vacate defendant Bobby Jenkins’s conviction
under § 922(g)(1) for being a felon in possession of a firearm and remand for
resentencing.
I.
Joseph Peter Clarke and Bobby Jenkins appeal their convictions for
conspiracy to commit Hobbs Act robbery,
18 U.S.C. § 1951(a); conspiracy to
2
Case: 13-15874 Date Filed: 05/11/2016 Page: 3 of 5
possess with intent to distribute five or more kilograms of cocaine,
21 U.S.C.
§§ 841(a)(1), 846; possession of a firearm by a convicted felon,
18 U.S.C.
§ 922(g)(1); and using and carrying a firearm during and in relation to a crime of
violence and possession of a firearm in furtherance of a crime of violence,
specifically, the Hobbs Act robbery,
id. § 924(c)(1)(A). Both Jenkins and Clarke
raise a number of challenges on appeal. We address all but this one in a separate
opinion.
Here we address only Jenkins’s § 922(g)(1) conviction for being a felon in
possession of a firearm. According to the government, Jenkins was a convicted
felon because earlier in his life he pleaded guilty to possession of cocaine in
Florida. Although Jenkins was found guilty of cocaine possession, the
adjudication of that offense was withheld. Jenkins argues that because this
adjudication was withheld, his possession-of-cocaine charge does not qualify as a
“conviction” under Florida law.
We have held that the “appropriate source of applicable Florida law [for
evaluating the term ‘conviction’ in § 922(g)(1)] would be that surrounding
Florida’s own unlawful possession of firearms by a felon statute,
Fla. Stat. Ann.
§ 790.23.” United States v. Chubbuck,
252 F.3d 1300, 1304 (11th Cir. 2001). In
Clarke II, the Florida Supreme Court answered our question about whether a guilty
plea with adjudication withheld is a “conviction” under the State’s felon-in-
3
Case: 13-15874 Date Filed: 05/11/2016 Page: 4 of 5
possession statute “in the negative.” 184 So. 3d at 1108.
In arriving at this conclusion, the Florida Supreme Court reasoned that when
a defendant “such as Jenkins . . . has his or her adjudication withheld, it is because
the trial court has found that the defendant is not likely to engage in further
criminal conduct and that justice and the welfare of society do not require that the
defendant suffer the penalty imposed by law.” Id. at 1114–15. Now that the
Florida Supreme Court has made clear that Jenkins’s guilty plea with adjudication
withheld is not a “conviction” for purposes of § 790.23(1)(a), his § 922(g)(1)
conviction cannot stand.
II.
The Eleventh Circuit has contrary precedent on this issue. In United States
v. Orellanes,
809 F.2d 1526 (11th Cir. 1987), we said that “one who pleads guilty
in a Florida state court and has imposition of sentence withheld, may nevertheless
be held to have been ‘convicted’ for purposes of applying federal criminal statutes
which punish certain conduct following conviction of a felony.”
Id. at 1527. We
affirmed that holding in United States v. Grinkiewicz,
873 F.2d 253 (11th Cir.
1989) (per curiam). However, in Chubbuck we recognized that “[i]t has become
increasingly clear that perhaps our interpretation of Florida law was either in error
or has since changed.” 252 F.3d at 1305.
4
Case: 13-15874 Date Filed: 05/11/2016 Page: 5 of 5
Generally, we are bound by prior decisions of this Court unless the Eleventh
Circuit sitting en banc overrules the prior decision. See Hattaway v. McMillian,
903 F.2d 1440, 1445 n.5 (11th Cir. 1990). However, if “the United States Supreme
Court or the Florida courts cast doubt on our interpretation of state law, a panel [is]
free to reinterpret state law in light of the new precedents.”
Id. Florida’s highest
court has plainly told us that our interpretation of Florida law in Orellanes and
Grinkiewicz was wrong. Therefore, our prior precedent rule must give way to the
direction we’ve received from Florida’s highest court. We vacate Jenkins’s
§ 922(g)(1) conviction for being a felon in possession of a firearm and remand for
resentencing.
VACATED AND REMANDED.
5
