United States Court of Appeals

For the Eighth Circuit

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No. 12-2748

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Lee Adams

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: January 14, 2013

 Filed: June 11, 2013

[Published]

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Before BYE, MELLOY, and SMITH, Circuit Judges.

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PER CURIAM.

A grand jury in the Eastern District of Arkansas indicted Lee Adams for being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A grand jury

in the Middle District of Florida indicted Adams for being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court granted a joint 1

motion to consolidate the two cases for plea and sentencing. Adams pleaded guilty

pursuant to a plea agreement to the counts set forth in both indictments, but the

parties agreed to leave to the district court the determination of whether the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e), applied. Adams's prior convictions

included three offenses under the assault statutes of the State of California. Two of

the assault offenses could be classified as either misdemeanor or felony convictions,

depending upon the length of incarceration imposed—so-called "wobbler" offenses.

Adams agreed that the third offense, inflicting corporal injury upon a spouse, was a

felony. The district court found that both wobbler offenses were in fact felonies and

sentenced Adams under the ACCA. Adams timely appealed his classification as an

armed career criminal, arguing that the two wobbler offenses were misdemeanors

under California law. We affirm.

I. Background

In 1984, Adams was convicted in the Superior Court of California, Santa Clara

County, in case number 95134 of assault with a deadly weapon or force likely to

produce great bodily injury—other than a firearm, in violation of California Penal

Code § 245(a)(1). For this conviction, Adams received a sentence of three years'

formal probation, with imposition of sentence suspended, with a condition of

probation of jail time of 365 days to be served in the county jail, with credit for time

served of 122 days. In 1988, Adams was again convicted in the Superior Court of

California, Santa Clara County in case number 121468 for the same offense. For this

conviction, Adams received a sentence of three years' formal probation, with

imposition of sentence suspended, with a condition of probation of jail time of 365

days to be served in the county jail, with credit for time served of 96 days. In 1991,

Adams was again convicted in the Superior Court of California, Santa Clara County,

The Honorable J. Leon Holmes, United States District Judge for the Eastern 1

District of Arkansas.

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in case number 152062. This time Adams was convicted of infliction of corporal

injury upon a spouse, in violation of California Penal Code § 273.5(a). For this

conviction, Adams received a sentence of three years' felony probation, with

imposition of sentenced suspended, with a condition of probation of jail time of one

year to be served in the county jail, with credit for time served.

On April 19, 2012, in a consolidated proceeding, Adams pleaded guilty to two

felony-in-possession charges arising from separate prosecutions in the Eastern

District of Arkansas and the Middle District of Florida. The plea agreement, signed

by Adams and his attorney, stated in relevant part that if the district court determined

that the ACCA applied, then the minimum term of Adam's imprisonment would be

15 years and:

The parties agree that, at a minimum, the defendant was previously

convicted of the following crimes punishable by a term of imprisonment

exceeding one year: (1) in the Superior Court of California, Santa Clara

County, for assault with a deadly weapon or force likely to produce

great bodily injury, in criminal case 95134; (2) in the Superior Court of

California, Santa Clara County, for assault with a deadly weapon or

force likely to produce great bodily injury, in criminal case 121468; and

(3) in the Superior Court ofCalifornia, SantaClara County, for inflicting

corporal injury upon a spouse, in a criminal case 152062.

For each California conviction, Adams received similar sentences of three

years' probation, with imposition of sentence suspended, with a condition of

probation of jail time of 365 days to be served in the county jail. The information

summary for case number 152062 referred to the convictions in case numbers 2

121468 and 95134 as felony convictions. At his change-of-plea hearing, Adams

admitted that each of these offenses was associated with a term of imprisonment

The information summary is produced by the Santa Clara district attorney and

2

includes a summary of the facts related to the charge as well as any prior felonies.

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greater than one year. The presentence investigation report (PSR) recommended a

base offense level of 14. The PSR added two offense levels under U.S.S.G.

§ 2K2.1(b)(1)(A) (2011) for possessing more than three but less than seven firearms,

added four offense levels under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm

in connection with another felony offense. Applying U.S.S.G. § 4B1.4(b)(3)(A), the

PSR established an offense level of 34 based on Adams's status as an armed career

criminal taking into account his three prior convictions for a violent felony orserious

drug offense, or both, which were committed on different occasions. The PSR

subtracted two levels based on U.S.S.G. § 3E1.1(a) for acceptance of responsibility,

resulting in a total offense level for Adams of 32. At the sentencing hearing, the

government moved for an additional one level-reduction for acceptance of

responsibility, which the court accepted, putting the total offense level at 31. 

Adams objected to the PSR designating him as an armed career criminal.

Adams did not dispute that his conviction for inflicting corporal injury upon a spouse

was a felony, he specifically objected to the classification of the two California

assault offenses asfelonies under the ACCA. Adams argued that the two convictions

for assault with a deadly weapon in case numbers 95134 and 121468, both in

violation of California Penal Code § 245(a)(1), were "wobblers" and should have

been classified as misdemeanors. Specifically, Adams argued that in both of these

convictions, the state court sentenced him to one year in jail. According to Adams,

the convictions were for misdemeanors, not felonies, and he could not receive a

sentence of greater than one year. 

The district court disagreed with Adams and found that all of Adams's

California convictions were properly classified asfelonies under the ACCA based on

United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992), abrogated in part on

other grounds by Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1020 (9th Cir. 2006).

The district court noted that the judge who sentenced Adams for his third offense,

inflicting corporal injury upon a spouse, treated his prior assault convictions asfelony

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convictions. In sum, the district court found Adams to have three prior felony

convictions and thus to be an armed career criminal under 18 U.S.C. § 924(e). The

district court sentenced Adams to 180 months' imprisonment for both offenses to run

concurrently and five years ofsupervised release. Adams timely appealed the district

court's finding that he was an armed career criminal. 

II. Discussion

Adams argues that his two prior "violent felony" convictions for assault with

a deadly weapon were actually misdemeanors under California law. Adams contends

that these offenses were "wobbler" offenses that could be felonies but which became

misdemeanors under California law when the state trial court imposed a sentence

other than incarceration in a state prison. Adams also argues that this court should

follow the rule of lenity by resolving any ambiguity regarding the application of the

ACCA in his favor. Adams asserts that since two of his prior convictions were

misdemeanors, he should not have been classified as an armed career criminal. 

"We review de novo a district court's determination that a defendant's prior

conviction constitutes a violent felony for purposes of § 924(e)." United States v.

Boaz, 558 F.3d 800, 806 (8th Cir. 2009) (citation omitted). Under 18 U.S.C.

§ 922(g)(1), 

[i]t shall be unlawful for any person . . . who has been convicted in any

court of, a crime punishable by imprisonment for a term exceeding one

year . . . to ship or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce. 

Any individual who violates § 922(g)(1) and who has three previous convictions for

a violent felony or a serious drug offense shall be "imprisoned not less than fifteen

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years." 18 U.S.C. § 924(e). Under 18 U.S.C. § 924(e)(2)(B), "the term'violent felony'

means any crime punishable by imprisonment for a term exceeding one year."

Adams's criminal record includes two violations of California Penal Code

§ 245. Each violation was punishable by "imprisonment in the state prison for two,

three, or four years, or in a county jail for not exceeding one year, or by a fine not

exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." Id.

§ 245(a)(1). "[A]n offense punishable either by imprisonment in the state prison or

by a county jailsentence is'said to "wobble" between the two punishments and hence

is frequently called a "wobbler" offense.'" United States v. Viezcas-Soto, 562 F.3d

903, 906, n.2 (8th Cir. 2009) (quoting Robert L. v. Superior Court, 69 P.3d 951, 956

n.9 (2003)). Under California Penal Code § 17(b),

[w]hen a crime is punishable, in the discretion of the court, either by

imprisonment in the state prison or imprisonment in a county jail . . . it

is a misdemeanor for all purposes under the following circumstances: 

(1) After a judgment imposing a punishment other than imprisonment in

the state prison or imprisonment in a county jail under the provisions of

subdivision (h) of Section 1170 [or] 

* * * 

(3) When the court grants probation to a defendant without imposition

of sentence and at the time of granting probation, or on application of

the defendant or probation officer thereafter, the court declares the

offense to be a misdemeanor.

(Emphases added.)

"Under California law, where the offense is alternatively a felony or

misdemeanor it is regarded as a felony for every purpose until judgment." Robinson,

967 F.2d at 293. In Robinson, the Ninth Circuit held that where a court granted

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probation and suspended imposition of a sentence after conviction, imposed a nine

month jail term, never entering judgment and never declaring the offense to be a

misdemeanor, the prior conviction (battery on a police officer) was a felony and

California Penal Code §§ 17(b)(1) and (3) did not apply. Id. The Ninth Circuit found

that California Penal Code § 17(b)(1) did not apply because no judgment was

rendered and § 17(b)(3) did not apply because the convictions were never declared

to be misdemeanors. Id. The Ninth Circuit has also stated:

Clearly, "[a]n order granting probation is not a judgment." People v.

Smith, 195 Cal. App. 2d 735, 737, 16 Cal. Rptr. 12 (1961). Furthermore,

when a sentencing court grants probation after a conviction, it may

suspend the imposition of sentence, in which case no judgment of

conviction is rendered, or it may impose sentence and order its

execution to be stayed. In the latter case only, a judgment of conviction

is rendered. People v. Arguello, 59 Cal. 2d 475, 476, 30 Cal. Rptr. 333,

381 P.2d 5 (1963)." 

Id.

Adams's previous convictions for assault with a deadly weapon, case numbers

95134 and 121468, were punishable by imprisonment for greater than one year under

California Penal Code § 245. However, because violation of § 245 can result in

imprisonment in a state prison greater than a year or imprisonment in a county jail for

less than a year, the convictions "wobble" between a felony and a misdemeanor.

Adams's case resembles Robinson because both cases involve an order of probation

in addition to the suspension of the imposition of the sentence and one year or less

in county jail. Since the California court imposed probation for both of Adams's

convictions, these convictions did not result in a judgment under Robinson and thus

§ 17(b)(1) does not apply. See Robinson, 967 F.2d at 293. Additionally, although the

court granted probation, like in Robinson, it did not explicitly declare the assault

convictions to be misdemeanors. Section 17(b)(3) isthusinapplicable as well. See id.

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Applying Robinson to this appeal, Adams's convictions in case numbers 95134 and

121468 are felonies for sentencing purposes because, although each of the assault

offenses may wobble between a felony and a misdemeanor, neither conviction

resulted in a judgment and neither court declared the convictions to bemisdemeanors.

Adams contends that in Viezcas-Soto, this court agreed with his position that

California Penal Code § 17(b) renders a conviction a misdemeanor "'[a]fter a

judgment imposing a punishment other than imprisonment in the state prison.'" 562

F.3d at 907 (alteration in original) (quoting Cal. Penal Code § 17(b)(1)).

Imprisonment in a county jail, for instance, would not constitute a felony. Therefore,

Adams argues that because he received punishment other than imprisonment for his

convictions, the offenses could not be felonies under California law. Consequently,

according to Adams, the offenses were not predicate offenses under the ACCA.

Adams, however, misreads our precedent and the California statute. Viezcas-Soto

dealt with the question of whether the government had sufficiently proven that the

appellant's prior conviction qualified as a felony crime of violence for purposes of the

application of a Guidelines enhancement. Id. The record in Viezcas-Soto was unclear

as to how the California court put its sentence into effect. Id. The record in this case

has no such deficiency. This case is distinguishable from Viezcas-Soto because the

records clearly indicate that the California courts suspended the imposition of the

sentences. Suspended sentences do not represent judgments. See Robinson, 967 F.2d

at 293. In contrast, in Viezcas-Soto, the record was unclear whether there was a

suspension of the imposition or the execution of the sentence. 562 F.3d at 907–08.

In Viezcas-Soto, "we conclude[d] the government did not meet its burden of proving

the offense was a felony within the meaning of the relevant Guidelines section." Id.

at 905. 

Additionally, the present case is also distinguishable from United States v.

Bridgeforth, 441 F.3d 864, 871–72 (9th Cir. 2006). In that case, the Ninth Circuit

held that a prior conviction became a judgment when the court terminated probation

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and imposed a sentence of 365 days in county jail and thus was a misdemeanor under

§ 17(b)(1). Id. at 871–72. Here, the probation has not been terminated.

Finally, Adams argues that the rule of lenity should apply in this case because

"[i]t is difficult to determine the effects of the California wobbler statutes on criminal

history in a federal case. The courts should resolve any inconsistencies in that

determination in favor of the Appellant, Mr. Adams." For authority, Adams cites only

to Viezcas-Soto's footnote 3, which does not address the rule of lenity. See 562 F.3d

at 908 n.3. Adams has thus cited no authority for his argument that lenity should

apply. We also do not find his reasoning persuasive given our analysis of California's

relevant statutes and casesinterpreting them. "The simple existence ofsome statutory

ambiguity . . . is not sufficient to warrant application of [the rule of lenity], for most

statutes are ambiguous to some degree." Muscarello v. United States, 524 U.S. 125,

138–39 (1998). "To invoke the rule, we must conclude that there is a grievous

ambiguity or uncertainty in the statute." Id. (quotations and citations omitted). The

case contains no grievous ambiguity or uncertainty.

Adams's two prior convictions for assault with a deadly weapon and a

conviction for infliction of corporal injury to a spouse are felonies. Therefore, the

district court properly classified Adams as an armed career criminal under § 924(e). 

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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