take your time the next case is united states versus anderson case number sixteen dash one one four two fo may please the court tracey rice bowl assistant federal public defender on behalf of tyrone anderson in clark first as united states the florida supreme court recognized the existence of a longstanding consistent conviction that requires an adjudication the holding and reasoning applied by the florida supreme court and clarke are inconsistent with this court's previous ruling in santiago that such definition was fluid and context specific santiago the premises the state law premise of santiago has now been called into doubt by a subsequent pronouncement of the state's highest court and should be reconsidered in clark the florida supreme court use this phrase longstanding consistent definition twice and the phrase longstanding consistent interpretation once and what they explained to us is that we as the eleventh  it have been looking at their laws regarding conviction wrong and perhaps that is because when we first addressed this issue in ariana's we relied on the case of state vs gaza and even though the florida supreme court had used the phrase withhold adjudication in gaza it was not what is commonly considered a withheld adjudication under florida law that is currently steps to fight at florida statute nine forty eight point zero one and that statute allows a trial judge in the state of florida to make a finding that the defendant is not likely to engage in a future course of criminal conduct and that the ends of justice do not require that the defendant suffer the penalty of a conviction at that time and when that finding is made it is well established and clearly understood by the florida courts that that is not a conviction and we know this because in clark the supreme court told us that it is firmly established that  particularly when the phrase conviction is used to describe the effect of a former conviction in a subsequent case a withhold doesn't count or an adjudication is required and also in mcfadden which the florida supreme court ruled i believe in two thousand and was discussed at length in the clark decision that case arose in a procedural posture similar to that in gaza where the defendant had pled guilty but not yet been sentenced and no formal what's your definition of adjudication when does it happen it happens when the trial court adjudicates the defendant guilty in many cases my understanding in state court as it happens at the time of the plea but the florida case law also indicates that if the judge decides to order a pre sentence investigation report it can happen later at the sentencing and so many of the cases if this case wasn't there or that in the transcript of the taking of the plea that at some point he was found guilty of the offense for which you're you're contesting for which there was no adjudication that's correct your honor and wit and we dispute that there was actually the entry of a plea of guilty as opposed to no load in fact there was no actual entry of a plea on the transcript but it's very clear and it's undisputed that the court withheld adjudication pursue it to its authority under florida statute nine forty eight point zero one and that is that was not considered a conviction he did not lose his civil rights at that time he was still permitted to vote he was still permitted under florida law to own a gun he was not a convicted felon at that time based on the prior conviction that we're talking or the prior offense that we're talking about today would his whatever you call it no law guilty adjudication withheld whatever would that qualify under florida law for habitual felony treatment at this time currently it would your honor because the legislature has expressly so stated then doesn't that answer the question for us because is also in a way recidivism statute i think creases a penalty of statutory penalty based on prior criminal history your honor if the court were to look at the santiago decision and this is this is the premise of it that i'm contending is is incorrect and quite frankly they use the term context specific five times in santiago whereas the florida supreme court used the longstanding consistent language three times these are very different definitions because because the court in santiago believed that florida law was so changing and context specific it actually rejected the defendant's argument that nine twenty four should be interpreted by the same definition of conviction is used in one thousand and two g and that actually in the court even said is a facially good argument it looks like it on the face of the argument that it would be the same language one thousand and forty actually mirrors the language of one thousand and two g when you're talking about a a conviction but because the court misunderstood this content what it believed to be this context specific shifting language and florida case law it said we have to go back and find an analogy because there is a set definition absent an express statutory exception we shouldn't even have engaged in the analogy we should have used the longstanding consistent definition of conviction that requires an adjudication but if lord if state law governs and florida law says that a nolo levy counts for a habitual offenders that you why doesn't it apply here because for two reasons first of all we should only we shouldn't even be engaging in the analogy because there is a definition this is the statutory interpretation that the court used in santiago is not traditional statutory analysis they felt compelled to do and i'm talking as if those cases are off the table ok orderly on your terrain the florida habit to offender statute is not a good analogy for several reasons first of all aca is at its core an aggravated gun offense the supreme court has said so we're not punishing you based on your status we're punishing you for your latest crime because it's an aggravated form the habitual offender statute we're no good at it it has to be a formal recidivism statute because your crime isn't any different it's just a you were more sinful in the past according to congress and you're going to pay more consequences now the crime is the same well correct well that may be true you are but my point is that the habitual offender statute in florida works a little bit differently it's not that it's not an indicted crime it's a filing that the the prosecutor files it applies to multiple offenses not just specifically one particular offense and also it is not mandatory why does that matter because it doesn't use the modified categorical approach what it does are you wan debate over categorical modified categorical divisible non divisible into florida state law well that's what i think that's what the court did in santiago by a incorporating a state statute and i know but i'm accepting your premise that we should not worry about santiago well i want you to assume that you're right on that point ok and convince me wife were writing on a clean slate if we're looking at state law and state law says convictions well that then we would be looking at one twenty four your honor and one twenty four he specifically incorporates the definition of one thousand and two g and in fact one twenty four he has one exception to a formal conviction and that's in the case of a juvenile finding of delinquency involving a violent crime there are no other exceptions to one thousand and forty other than a formal conviction and i think it's also very significant if we're looking at the statutory history of one twenty one and twenty nine twenty one  twenty was a response to the supreme court's ruling in dickerson that the definition of conviction for gun purposes was defined by federal law instead of state congress amended that specifically to accommodate state court adjudication and perper probationary reforms like the one in this case to accommodate allow to be more permissive to gun rights essential and you can also see that in one thousand one hundred twenty where if you had your rights were restored it does not count so there is this this inherent lenient see towards what the definition in the federal statute we also have to look i think at the language in clark regarding the purpose of the withhold the government had argued in the florida supreme court that the only difference between a withhold and an adjudication was that the state court judge didn't have to put the defendant on probation and the chief justice who ended up writing the opinion chief justice of the florida supreme court asked the government then what's the purpose wire defense lawyers always asking you for the withhold if it's no different and the government i would submit didn't have a very good answer to that at the time and i would submit there that the there is no answer because there is a difference under florida law it is well established understood that this is not a conviction and when you look at the comp and you look at taylor the supreme court has repeatedly said we can't deprive a defendant of the benefit of his bargain when we come to aca sentencing the the defense lawyers negotiated and in this case the guy actually did thirty days in jail but he negotiated for the withhold and the withhold meant something and the withhold meant that it wasn't a conviction at the time and the plain language of nine twenty four he refers back to a conviction by any court in one thousand and two g and so there absolutely no reason either under nine twenty one twenty nine twenty four eight or nine twenty two g why would we we would be using a different definition of florida law procedurally what happens when there is a withhold this  conviction undone in the traditionally what happens the defendant is set on probation and once the defendant completes the probation the withhold goes away and the court can see that in the  case there's actually a footnote where they don't withhold goes away as are the it just it's just a no it's not a conviction there's no conviction there's a conviction that gets undone no your honor the conviction is never entered if the defendant were to have violated his probation he could have been adjudicated later so there's a finding of guilty there right there where there's a withholding of the judgment of conviction pending completion of probation correct and if the defendant completes probation the judgment is never entered and in this course in this case it's undisputed that it was a withhold he was not convicted under florida law for this purpose so what judgment gets entered the withhold of adjudication so that judgment is entered a judgment  is entered but it's not considered a conviction under file i know is there it but there is something called the judgment we have constitutes a withhold of adjudication if the probationary term is completed without problems correct your honor and in this case the defendant actually wasn't sentenced to probation so that you agree with that yes your honor and decides for his benefit that you know that you can get that x you can get the better the detriment that you suffer as a result of being found guilty ignored by not entering a conviction because you have successfully completed probation yes your honor so there's a finding of guilty what doesn't so so the defendant has committed the offen or there's just not he just gets the benefit of there not being an ongoing record that's correct your honor what he hears her as a practical matter is the whole purpose of the sentencing guidelines and is that if somebody who is engaged in repetitive criminal conduct under the guidelines ends up suffering a more significant sentence because of their past criminal conduct in this case there's a finding that he engaged in past criminal conduct what you're saying is that that can't be taken into account under aca it's as if he never committed the crime not only is that what i'm saying your honor that's what the supreme court said in both the cop and tailor the doctor doesn't use the term finding uses the term conviction and even though this  court said in philip's that santiago finds that the withholding of an adjudication doesn't impact the consideration of that that that court was wrong that that was dick to your honor the issue was not raised in philips in fact the holding of phillips was that the defendant affirmatively waived it by conceding that it counted both in the district court and on appeal the defendant merely raised philip raised the issue and phillips in case the law changed in the future it never the defendant phillips never argued that santiago was wrongly decided and the government never responded to it in fact arguing only the waiver and invited error issues became is tribal thank you very much you have your full time  good morning and may it please the court clark does not abrogate or even undermine santiago in any way and santiago is holding that a florida a due to withhold of adjudication is a conviction for purposes of the a c c a is directly on point and binds this court clark examined whether a florida withhold of the due to cation was a conviction specifically for purposes of florida's felon in possession statute and significantly the clark e decision specifically distinguished the separate and distinct consideration of withholds of adjudication as convictions for purposes of florida's own reset of the statutes florida's version of the cia and the supreme the florida supreme court and clarke explained that florida defines conviction in a way that gives context it's it defin in relation to the specific statute and the specific purpose of the statute where that term conviction exists so clarke explained the whole premise behind him to do to cation with withheld is that it promotes rehabilitation under florida statute nine forty eight zero one the florida trial judge makes a determination that the defendant is not likely again to commit criminal conduct and that the ends of justice and welfare  society do not require that the defendant and it says presently suffer the penalty and it's what you were saying judge duffy there's a finding of guilt but because he's not likely to be set of eight because the ends of justice require in this particular case we're going to not be adjudicated him guilty there's not going to be a conviction so that he can retain his serve the liberties so that he can vote so that he can have a gun the clark case specifically explain then that in the context of the felon in possession statute that's a statute that's intended to keep guns out of the hands of people who are dangerous or might we offend and that purpose is not served where the judge has explicitly made that finding under section one forty eight zero one that the defendant is not a danger and not likely to re offend by contrast a defendant who has received the benefit of a rehabilitative sentence and continues to commit crimes is not to treated with further leniency in that case the florida courts count these withholds of adjudication as convictions for purposes of sentencing later on when that defendant reset of eights and offenses it's similar to the a c ca but specifically at seven seven five zero eight for section two it says for the purposes of this section the placing of a person on probation or community control without an adjudication of guilt shelob be treated as a prior conviction and clutter is what is clark's the about that if anything it's specifically distinguishes that's that context  possession statute so it says we're here to look at whether a can a withhold is a conviction for film and in possession and now it lists a number of different statutes in contexts where offenders that's it page eleven thirteen of the clarke decision and then it goes on to specifically specifically distinguish that when it says the significant factor concerning the above cited statutes including that one is that they do expressly include withhold adjudications as convictions for purposes of the statute and by contrast the felon in possession statute the florida felon in possession statute seven ninety two three does not include withhold adjudications within its definition a felon in possession so clark is so clark is consist i'm sorry judge so are you saying that in florida a sentencing judge can consider a previous conviction which there were previous withholding of adjudication where there are subsequent criminal contact whereas if we follow the defense where you put a federal district court judge would be denied the opportunity to take that withhold qualify for a c c it's because there's a federal statute that says for purposes of one twenty two ga and nine twenty four easy you look to florida law so santiago looks to florida law and it says what context are we going to look at what we're going to look at the similar context in the florida system which is this had to be a fender statute and florida law specifically allows those with holes to count as priors for their habitual offender statute so we're going to allow it for the a c c santiago was directly on point this is saying that in order to treat an offender the same way in state court in federal court you have to do with the federal court which is for subsequent criminal conduct the withhold can be considered connection with an appropriate so yes except i want to tweak a little bit of the question the reason why we're looking at state law for aca purposes is because there's a specific statute right that says nine twenty four the when you look at that term crime punishable by imprisonment for more than one year you look to state what i mean what constitutes a conviction is for my state law it is different from for example  federal statute eight forty one hundred fifty one where you have enhanced mintz in that context you look to federal law but to be ever specific statute that tells us you gotta look to state law and mr isaac was right both one thousand and two g and nine twenty four  are governed by that statute nine twenty one hundred twenty that says go to state law to figure this out what waits you go to state law the florida courts and and clark just recently the supreme court of florida was very clear the context matters and when the florida supreme court to find what a conviction is it looks that conviction in what context is it in the felony possession context well then it doesn't it doesn't count because the whole point of the adjudication was because you let the defendant keep his civil liberties because he's not likely to re offend because the interest of justice support that determination it's a specific factual finding that a florida state judge makes under florida statu nine forty eight zero one but all bets are off when i reset abates i mean the whole purpose of a withholding adjudication was a finding that he's not likely to again engaged in criminal conduct now mr anderson's a perfect a perfect case case in point the the florida judge made a written finding of guilt and withholding of adjudication and right in this document it says the court has found that mr anderson is not likely to engage in criminal conduct the ends of justice  don't require that he presently suffer the penalty so it's withhold to two years later mr anderson has another cocaine conviction now in two thousand and ten he has an armed robbery can conviction now he has  or do you know of any other circuits that have been faced with that sort of a scenario where there isn't a one glove fits all type answer either withhold always counter with hold never counts i do not i know that if there was another circuit facing with you know that always under a c c i scuse me always under a c c are you going to look to two state court and whether it's the third circuit second circuit fifth circuit they're going to look to florida law and florida law quite clear no no when i was talking about another circuit having to deal with another state's law they said similar to florida's where whether i yelled to withhold might depend on context and whether any other circuits had struggled or dealt with that similar to not that i'm not that i'm aware of i think that the santiago decision is on all fours and binds this court and this is absolutely consistent with the later florida supreme court's explication of what of explanation of what an adjudication withhold means it's context space specific and in the florida system under their habitual offender statute these withholds count as as convictions and they count under santiago for purposes of the a c c i of the reason i think that we have these sorts of issues presented to us is because our government lawyers and defense lawyers are better than they are in the other circuits thanks judge if there is no further questions we rely on our brief and ask the court to affirm the sentence right thank you very much ms rivera the stressful i absolutely disagree with the government's characterization of clark clark did not say a conviction under florida law is context specific  exceptions to the rule are made it is based on express statutory language for over one hundred years there has been a longstanding consistent definition of conviction under florida law that requires an adjudication there is no need to engage in the analogy because that definition does exist and it has been clearly understood by the florida courts for over one hundred years what why would the florida supreme court do you think mentioned that statute as one scenario in which a withhold might be treated differently because the government argued to the florida supreme court that withholds were context specific and cited all of these statutory exceptions and what the florida supreme court said is exactly what the government quoted they said the significant fact about these is that they do express li say so where the legislature has an express lee said so we use the longstanding consistent definition of conviction that requires an adjudication hasn't the legislature expressly said so in this case your honor the habitual violent felony offender statute is it's just a bad analog the judge because it because it is a character analysis where it makes sense to cast a wider net they're not looking at a conviction in the definitional sense they're looking at whether or not this person should be sentenced to a higher sentence under an advisory system it's absolutely inapplicable and the government made the same i why does advisory system matter in this in this context because it's only because of the prior conviction that the possible higher sentence is even possible because because i think the court still has to hold true to the supreme court's analysis of aca and that we do use this categorical approach if if florida had a statute that was like aka and said if you committed a certain type of number of offenses then we're going to deem your habitual felony offender and you're going to get a minimum sentence of ten years no matter what would it be a better analog it would probably be a better analog but i still submit we don't go there because nine twenty one's a says that we use the definition of conviction and florida has a definition of conviction that should be imported and incorporated under nine twenty one and one twenty four eat and there's no reason why conviction should mean something different and nine twenty four even it doesn't mind twenty two g nine twenty four but it but it might make sense if there's a difference in florida law and were required to look to florida law but i florida had if if if the florida supreme court had a common law case under a diff defining conviction and it said no but i mean it's which things a little bit for you if the florida supreme court had a case that said in a common law adjudication that a withhold of adjudication is not a conviction for our felon in possession logs but is a conviction for a habitual recidivism statute that creates a mandatory statutory penalty would that fit or would that be different to i still think that's different unless we're talking about an enhanced form of the gun crime because you're has to be the same crime i would imagine the best argument you would make for using the analog would be if it's the same crime my argument is that we shouldn't be using the analog i know but i'm trying to ask you to i had just time to play on my terrain i understand what i'm saying is it's closer it's certainly closer it's not perfect if laura had a perfect analogue that would be different but this this is an unusual statutory analysis that the court engaged in santiago and the court only engaged santiago based on the faulty premise that there's this context specific definition of conviction under florida law your argument is and you can obviously correct me if you think i've got it wrong that you don't get to anything else because you used the baseline conviction definition given by the florida supreme court correct and you stop there and you don't go anywhere else and so a statute like section seven seventy five point zero eight four doesn't even come into the picture that is my argument your honor and if i can make two more points i see my time is up one more point ok going to combine them florida law there is a well established over one hundred years of precedent in florida that when a conviction is an element or a fact that has to be found to establish a heightened recidivist offense it requires an adjudication the habit to offender was legislatively changed to eliminate that requirement but i florida the if the florida supreme court had one thousand and forty in front of it there is no doubt under the principles established and clark and mcfadden and one hundred years of florida jurisprudence one thousand and forty would be it interpreted by the florida supreme court to require the adjudication you want to certify this question to have if the court would like to do that i think it can if again my argument for if we were on a computer if we want to complete a clean slate and i were just trying to argue this for the first time nine  is a reason those are because let me see if i understand your argument that let's say that you have two defendants both of them end up being convicted of five felonies and we have the same situation where we're trying to determine whether or not those five felonies are counted towards whether or not so much as a bitch and one of them happens to have had some good luck and they got a hundred and offered plea and they were required for some short period of time to comply their conduct with the law and there's a withholding of adjudication in that conviction in your in your world would count somebody else is not a successful they've done exactly the same thing one of them could possibly be determined even though they've engaged in the same criminal conduct one just happen to have one there one conviction with felt they one would qualify for as a as a habitual offender the other wouldn't that's the practical consequences and if we if we argument well you're on our really because what you're saying is that one person you don't count their conviction the other person you do because they weren't successful well if your honor we're speaking of aca i would say that's absolutely true and that is consistent with supreme court's interpretation of a the habitual offender statute is a character analysis that allows the sentencing court to make findings as to whether or not the character of this individual i understand your argument that what would happen in florida state courts i'm talking about is a federal district court judge would be sitting there saying at nine o'clock i'm sentencing this person at ten o'clock i'm sentencing this person the only difference is the one has a with all the judah cation and one doesn't your honor this is if i have to find that person as a bitch wolf enter an underactive the other one i don't that's correct your honor and that's because the supreme court has repeatedly said we cannot deprive the defendants of the benefits of their bargain if a defendant pleaded guilty committed to a common law generic burglary but pleaded guilty to something that was less than generic burglary we shouldn't later be going back and sentencing him under because we can look at the facts and find out it was a deterrent to narc burglary it's the same scenario where that defendant negotiated for a withheld adjudication on a first offense longstanding consistent definition of conviction should be applied right thank you very much this rivero would you have any objection to certification to the florida supreme court if we decide to go that route i don't think the court needs to go that route because the florida supreme court and clark specifically answered the question that for all i know both of you believe very strongly in your positions which might lead us to kick it over to the florida supreme court and have them tell us what the answer is we've got i think the government's position would be that there would be no no reason to but ok i'll take that as a question thank you very much