FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 11 2000

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 99-14955

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D. C. Docket No. 99-00506-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO LAZARO FERNANDEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 11, 2000)

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI*, Judge.

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* Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by

designation.
2

PER CURIAM:

This case presents this question: whether a plea of nolo contendere, where

adjudication has been withheld, qualifies as a conviction for purposes of U.S.S.G.

§2K2.1(a)(2). The answer is “yes”.

In 1999, Defendant was indicted for being a felon in possession of a firearm,

in violation of 18 U.S.C. §922(g)(1) (Count 1) and for having knowingly made a

false statement to a firearms dealer, in violation of 18 U.S.C. §922(a)(6) (Count 2). 

Defendant pleaded guilty to Count 1 of the indictment pursuant to a plea agreement

with the government.

The PSI set the base offense level at 24, in accordance with U.S.S.G.

§2K2.1(a)(2), based on a finding that Defendant had two prior felony convictions. 

The probation officer relied on a 1990 aggravated-assault conviction. In addition,

he relied on a 1988 offense for carrying a concealed weapon to which Defendant

had pleaded nolo contendere in Florida state court but for which there was no

adjudication of guilt. Defendant did not contest the use of his 1990 aggravatedassault conviction. He, however, did argue that the 1988 offense could not be used

to determine his base offense. At sentencing, the district court disagreed with

Defendant and concluded that the 1988 offense did count as a conviction for

purposes of U.S.S.G. §2K2.1(a)(2).
3

DISCUSSION

Under section 2K2.1, a criminal defendant’s base offense level is 24 if the

defendant has “at least two prior felony convictions of either a crime of violence or

a controlled substance offense.” U.S.S.G. §2K2.1(a)(2). 

The guidelines are clear that, if a prior conviction results in a criminal

history point under section 4A1.1, then the conviction is to be considered a

conviction under section 2K2.1(a)(2) as well. See U.S.S.G. §2K2.1(a)(2)

comment. (n.5)(“For purposes of determining the number of such convictions

under [this] subsection, count any such prior convictions that receives any points

under §4A1.1"); see also United States v. Laihben, 167 F.3d 1364, 1366 (11th Cir.

1999)(if state court conviction qualifies for criminal-history points under §4A1.1,

it will be considered prior conviction for determining base level offense under

§2K2.1(a)).

Under the Sentencing Guidelines, an offense that resulted in a plea of nolo

contendere with no adjudication of guilt is to be included in the criminal-history

calculation of section 4A1.1. See U.S.S.G. §4A1.2(f) (“plea of nolo contendere in

a judicial proceeding is counted as a sentence under §4A1.1(c) even if a conviction

is not formally entered)(punctuation omitted); see also United States v. Rockman,
 1

Defendant did not object to having been attributed one criminal-history point for the 1988

offense. 

4

993 F.2d 811, 814 (11th Cir. 1993) (defendant’s offense to which he had pled nolo

contendere was properly counted as an offense under U.S.S.G. §4A1.1(c) even

though there was no adjudication of guilt). Thus, the district court properly

counted Defendant’s 1988 offense in the criminal history calculation of section

4A1.1(c).1

 Therefore, because Defendant’s 1988 offense resulted in a criminal

history point under section 4A1.1, it is to be counted as a “conviction” under

section 2K2.1.

The district court relied on United States v. Jones, 910 F.2d 760 (11th Cir.

1990), in concluding that Defendant’s nolo plea was a conviction. Jones said that a

nolo plea was to be considered a “conviction” in making the defendant eligible for

career offender status under section 4B1.1. Jones is relevant to the present case

because both sections 4B1.1 and 2K2.1 refer to U.S.S.G. §4B1.2 to define “prior

felony convictions”. 

Defendant first argues that the district court’s reliance on Jones is erroneous

because Jones based its conclusions on the reasoning contained in a line of cases

which has been subsequently overruled by Congress. See 18 U.S.C. §921(a)(20). 
 2

In 1986, Congress amended 18 U.S.C. §921(a)(20) to specify that the term “conviction”,

within the meaning of 18 U.S.C. §922(g)(1), was to be determined by state law. See United

States v. Willis, 106 F.3d 966, 968 (11th Cir. 1997). Two cases upon which Jones relied --

United States v. Bruscantini, 761 F.2d 640 (11th Cir. 1985) and United States v. Garcia, 727

F.2d 1028 (11th Cir. 1984) -- are no longer good law to the extent that they interpreted section

922(g)(1) in accordance with federal law. See id. But, neither section 921(a)(2) nor Willis

affects how the term “conviction” is to be defined under the Sentencing Guidelines. 

5

While two of these cases may have been overruled2, Jones’ ultimate determination

remains intact: a prior state court nolo plea in which adjudication was withheld can

be used as a conviction to make the defendant eligible for career-offender status

under the Sentencing Guidelines. This conclusion is still good law and has been

cited (after the pertinent congressional act) with approval by this court. See United

States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995).

Defendant also argues that, in United States v. Willis, 106 F.3d 966 (11th

Cir. 1997), we said that under Florida law “a conviction requires either an

adjudication of guilt by verdict of the jury or a plea of guilty.” While this reading

of Willis may be accurate, Willis distinguished itself from Jones by noting that the

definition of “conviction” under 18 U.S.C. §922(g)(1) -- the statute at issue in

Willis -- was governed by state law, while the definition of “conviction” under

U.S.S.G. §4B1.1 -- the guideline at issue in Jones -- was governed by federal law. 

In other words, Willis interpreted the meaning of “conviction” under state law,

while Jones interpreted its meaning under federal law.
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Furthermore, authority in the Fifth Circuit strengthens our view that the

district court properly considered Defendant’s nolo plea. In United States v.

Stauder, 73 F.3d 56 (5th Cir. 1996), the Fifth Circuit said that a guilty plea in

Texas state court for which the defendant received a “ten-year sentence but with

deferred adjudication probation” could be used to calculate the base offense level

under section 2K2.1, even though the offense disposition was not considered a

conviction under Texas law. See id. at 56-57.

For these reasons, we conclude that a plea of nolo contendere is to be

considered a conviction under section 2K2.1(a)(2) of the United States Sentencing

Guidelines. 

AFFIRMED.