4 cn ie

et
APPENDIX "E Page2of7 =
EXHIBIT fl ;

Westlaw.
301 F.3d 919 7 Page 1
301 F.3d 919
(Cite as: 301 F.3d 919)
‘Po net ret ant ample time to go to trial, and: to’plan his trial
: United States Court of Appeals, ~ strategy with full knowledge of the consequences of

Eighth Circuit. a potential guilty verdict. Comprehensive Drug Ab-

httn://weh? westlaw cam/nrint/nrintstream acnv2ev=Snlit&arAcHTMT Ba faa tan PrifeeNa

UNITED STATES of America, Appellee,

ve
Pablo STALLINGS, Appellant.

use Prevention and Control Act of 1970, §
411 (a)(1), 21 U.S.C.A.§ 851(a)(1).

No. 01-3800. [2] Sentencing and Punishment 350H €=>1361
Submitted: May 13, 2002. 350H Sentencing and Punishment
Filed: Aug. 23, 2002. 350HVI Habitual and Cardtr Offenders
. : os 350HVI(K) Proceedings oO
Defendant was convicted in the United States Dis- 350Hk1361 k. Notice of Intent to Seek
trict Court for the District of Nebraska; Lyle E. Enhancement. Most Cited Cases: .

Strom, J., of conspiracy to possess with intent to
distribute cocaine base. Defendant appealed. The
Court of Appeals, Melloy, Circuit Judge, held that:
(1) defendant received timely notice of govern-
ment's intent to seek’ sentencing enhancement based
upon defendant's prior convictions; (2) prior felony
drug conviction could not be used to enhance de-
fendant's sentence; and (3) evidence was. sufficient
to support conviction. . . S

: Affirmed in part, reversed in part, and remanded for

resentencing. .

“West Headnotes -

[1] Sentencing and Punishment 350H 1366

Defendant ‘received timely notice of government's
intent to seek sentencing enhancement based upon
defendant's prior: convictions, pursuant to notice
and procedural requirements of statute allowing
such enhancement, in prosecution for conspiracy to
possess with intent to distribute cocaine base,
where government filed its notice a few days prior
to the commencement of defendant's trial.. Compre-
hensive Drug Abuse Prevention and Control Act of

_ 1970, § 411(@)(1), 21 U.S.C.A. § 851(a)(). -

[3] Sentencing and Punishment 350H €=71330

350H Sentencing and Punishment
350HVI Habitual and Career Offenders
350HVI(I) Subsequent Circumstances Af-
fecting Prior Adjudication

350H Sentencing and Punishment 350Hk1330 k: In General. Most Cited
350HVI Habitual and Career Offenders 7
350HVI(K) Proceedings Sentencing and Punishment 350H €=>1338
350Hk1363 Recidivist or -Habitual Of-
fender Charge . : i 350H Sentencing and Punishment

. 1
350Hk1366 k. Time for Filing or Insti-
tuting Proceedings. Most Cited Cases .

To satisfy the procedural and notice requirements
of filing an information for purpose of sentencing
enhancement based upon defendant's prior convic-
tions, the government must file its information be-
fore jury selection begins, thus allowing the defend-

350HVI Habitual and Career Offenders.”
350HVI(I) Subsequent Circumstances Af-
fecting Prior Adjudication
350Hk1338 k. Matters Related to Sen-
tence. Most Cited Cases
Prior felony drug conviction could not be.used to
enhance defendant's sentence for conspiracy to pos-

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

QIAN


NO _,

APOE NOIX

Page 5 of 7
; ExWrary 4Qca)

301 F.3d 919
301 F.3d 919
(Cite as: 301 F.3d 919)

Stallings in connection with the. California convic-
tion, and, consequently, reliance on ‘that conviction
for purposes of 21 U.S.C. § 841(6)(1)(A)(vili)_sen-
tence enhancement was improper."!

FNI. Stallings made a valid objection at
sentencing to his California conviction.
The grounds relied upon in this opinion to
invalidate the sentence were raised through
questioning by Judge McMillian at oral ar-
gument. The parties were then given the
opportunity to file supplemental briefs on
the issue of whether there was ever a judg-
ment entered by the California courts. The
court is now in receipt of the supplementai
briefing on that issue.

At the sentencing hearing, the government intro-
duced a. number of exhibits in an attempt to prove
up the California conviction. These exhibits show
that the defendant was charged with felony posses-
sion for sale of cocaine base in violation of section
11351.5. of the Health and Safety Code of Califor-

nia. The defendant _entered_a plea of nolo_con-
tendere. He was sentenced to three years probation,
subject to the serving of 78 days in the county jail,
and_ordered to_pay restitution and court costs. The
sentencing documents also show that “imposition of
‘sentence _was_ suspended.” Subsequently, a revoca-

tion of probation proceeding was commenced in the
Superior Court_of California, County of Alameda.

However, the record made at the sentencing hearing
indicates no further action was taken on the Califor-

nia_probation officer's revocation recommendation.
The remaining reference to the California convic-
tion is in an Oregon Presentence Report, introduced
into evidence at the sentencing hearing, which

. States that California “revocation proceedings are
unlikely given Stallings's conviction in Federal
Court”? FN2

FN2. The referenced federal court convic-
tion is a 1995 conviction for Interstate
Travel in Aid of a Crime of Racketeering

Page 4

prosecuted in the United States District

Court for the District of Oregon. .

The final disposition of the California conviction
resulted in Stallings receiving probation with the
imposition of sentence suspended. Although proba-
tign_revocation proceedings were commenced by
the probation office, the California court neither re-

yoked probation nor did it pronounce judgment,

SeeCalPenal Code  §  1203.2(b); see also
*922People v. Smith, 12 Cal.App.3d 621, 90
Cal.Rptr. 811, 814 (1970) (“It is equally clear that
probation was revoked ... and a bench warrant was
issued so that judgment and sentence could be im-
posed, imposition théreof” having’ been suspended
approximately three years earlier....”). If imposition
of sentence was suspended, and probation was nev-
er revoked, then there is no judgment entered
against the defendant. As explained in an early
California Supreme Court case:

When judgment is not pronounced and further pro-
ceedings are suspended, there is no judgment
against [the defendant]. His activities are limited
only by the terms of the probationary order, un-
der the supervision of the probation officer. Upon
“revocation of probation the defendant is entitled
-to a hearing and to be sentenced, before he can be
committed to the appropriate institution.

Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182,
187 (1959) (citation omitted); see also People v.
Pennington, 213 Cal.App.3d 173, 261 Cal.Rptr.
476, 478 (1989) (“Where no sentence is imposed at
the time probation is granted, a subsequent decision
terminating probation requires that judgment be
pronounced.”(citing Cal.Penal Code § 1203.2, subd.
(c))); United States v. Qualls, 108 F.3d 1019, 1023
(9th Cir.1997) (“There is no judgment pending

against a probationer when the court withholds im- . -

position of judgment and suspends further proceed-
ings. Because the California court granted [the de-
fendant] probation and suspended further proceed-
ings, [the defendant] does not have a final or

©2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&ifm=No... 8/4/2009


ARPENDTY
EXALBIT
301 F.3d 919 ]
301 F.3d 919
(Cite as: 301 F.3d 919)
ure

10611(G) Rules.of ‘Decision oe
L 106k88 Previous Decisions as Controlling
"or as Precedents .
: : _ 106k90 ‘Dedisions of Same Court : or
Co-Ordinate Court
106k90(2) k [Number of Judges
Concurring in Opinion, and Opinion by Divided
Court. Most Cited Cases _
Only the Court of Appeals en banc can overrule an
earlier panel decision.
*920 Michael T. Levy, argued, Omaha, NE, for ap-
pellant.

Maria R. Moran, argued, Omaha, NE, for appellee.

Before McMILLIAN, FAGG, and MELLOY, Cir-
cuit Judges.

MELLOY, Circuit Judge.

Pablo Stallings was convicted of conspiracy to pos-
sess with intent to distribute cocaine base. The gov-
.ernment filed an. information seeking to enhance
Stallings's sentence to life imprisonment. The dis-
trict court,: relying upon thé convictions. set out, in
‘the notice, imposed the enhancement and sentenced
Stallings to life imprisonment. Stallings now ap-
peals his conviction and sentence. We affirm the
conviction but, reverse and remand the sentence im-
posed.

L j
{1][2] Stallings challenges his enhanced sentence
contending the procedure and notice were defective
and the .two prior felony convictions were not
proved beyond a reasonable doubt. “Because resol-
ution of this claim requires us to interpret the stat-
ute, we review de novo the district court's use of the
two prior convictions for enhancement purposes.”
United States v. Johnston, 220 F.3d 857, 860 (8th

Ee! Page 4 of 7

s j Wo)

Page3

Cir.2000). We: first consider the procedural: and no-
tice challenges to the §.851(a). information. ~A -pre-
requisite for sentence enhancement under 21 U.S.C.
§ 841(b) is a timely-filed information ‘detailing the
prior convictions the government intends to rely
upon for sentence enhancement. See21 U.S.C. §
851(a)(1). To satisfy the procedural and notice re-
quirements of the § 851(a) information, “the gov-
emment must file its information before jury selec-
‘tion begins, thus allowing the defendant ‘ample
time [...] to go to trial, and to plan his trial strategy
with full knowledge of the consequences of a po-
tential guilty verdict.’ ” *921United States v.
Robinson, 110 F.3d 1320, 1327-28 (8th Cir.1997)
(quoting United States v. Johnson, 944 F.2d 396,
407 (8th Cir.1991)). The government filed the §
851(a) information on Friday, July 13, 2001.
Stallings's trial commenced on Tuesday, July 17,
2001. Stallings's procedural contentions are without
merit. Stallings received timely notice of the gov-
emment's intent to seek the § 851(a) enhancement
before trial and had an opportunity to challenge the
convictions before the sentence was imposed. 21
US.C. § 851(b), (0); see also Robinson, 110 F.3d at
1328 (filing of information minutes before voir dire
satisfied requirements of § 851(a)(1)).

BY Stallings contends the government failed to

prove the two prior. convictions beyond a reason-
able doubt. The two predicate convictions offered
by the government for enhancement purposes were
a 1993 California conviction and a 1987 Nevada
conviction. At sentencing, defense counsel entered
a valid objection to the prior convictions on the
basis of “identity, relevance, and foundation.”
Therefore, under 21 U.S.C. § 851(c)(1), the govern-
ment had the burden to prove the two prior felony
drug convictions beyond a reasonable doubt.
Stallings does not challenge on appeal the use of
the 1987 Nevada conviction. However, he raises a
variety of challenges to the use of the 1993 Califor-

nia conviction. Based upon the record, we conclude
judgment was never properly _entered_against,

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

httn:/Aweh? weetlaur cam/nrint/nrintetraam acny2ev=Snlit&nrA=HTMI R&rfa= tankrifmeNin

R/AIINNG


AP PEA OTY

301 F.3d 919
301 F.3d 919
(Cite as: 301 F.3d 919)

sess with intent to distribute cocaine base, where
prior conviction was never properly entered against
defendant; although defendant entered Plea of nolo
contendere in California state court to prior offense,
sentencing documents. showed that he was sen-
tenced to probation, but imposition of sentence was
suspended, and his probation was not revoked, pre-
cluding entry of judgment against defendant under
California law. Comprehensive Drug Abuse Pre-
vention and Control Act of 1970, § 411(a)(1), 21
US.C.A. § S51(@N(1) N West's Ann.Cal.Penal Code § .
1203.2.

[4] Sentencing and Punishment 350H €=7480

350H Sentencing and Punishment’
350HII Sentencing Proceedings in General
350HII(J) Stay of Execution of Sentence
350Hk480 k. Effect. Most Cited Cases

Sentencing and Punishment 350H €=>1931

350H Sentencing and Punishment
350HIX Probation and Related | Dispositions
350HIX(F) Disposition of Offender

350Hk1931 k. Probation Without | Sen: :
tence. Most Cited Cases .
Under California law, when a sentencing court
grants probation after a conviction, it may suspend
the imposition of sentence, in which case no judg-
ment of conviction is rendered, or it may impose
sentence and order its execution to be stayed, in
which case a judgment’ of conviction is rendered.
West's Ann.Cal.Penal Code § 1203.2.

[5] Criminal Law 110 €=71144.13@)
1
110 Criminal Law - oy

11OXXIV Review
110XXIV(M) Presumptions
110k1144 Facts or Proceédings Not
Shown by Record

110k1144.13 Sufficiency of Evidence
110k1144.13(2) Construction of
Evidence

i

‘ Page 3 of 7
EXWI8xT eo)

Page 2

110k1144.13(3) k. Construction
in Favor of Government, State, or Prosecution.
Most Cited Cases - - wus

Criminal Law 110 €71144.13(5)

110 Criminal Law
110XXIV Review
110XXIV(M) Presumptions
110k1144 Facts or Proceedings Not
Shown by Record
110k1144.13 Sufficiency of Evidence
110k1144.13(5) k.  Inferences_ or
Deductions from Evidence. Most Cited Cases
The Court of Appeals reviews sufficiency of the
evidence challenges in the light most favorable to
the verdict, giving the government the benefit of all
reasonable inferences.

{6] Conspiracy 91 €47(12)

91 Conspiracy
91II Criminal Responsibility
911I(B) Prosecution
»91k44 Evidence 2. --
91k47 Weight and Suffici ficiency -
91k47(3) Particular Conspiracies
91k47(12) k. Narcotics and Dan-
gerous Drugs. Most Cited Cases
Evidence was sufficient to support defendant's con-
viction for conspiracy to possess with intent to dis-
tribute cocaine base; witnesses testified that defend-
ant shipped cocaine through the mail and arranged
for others to deliver cocaine base on his behalf,
wiretap evidence linked defendant with admitted
drug distributors, and physical evidence admitted
included scales, razors, and large amount of cash
seized from storage locker rented “to “defendant.
Comprehensive Drug Abuse Prevention’ and Con-
trol Act of 1970, § 401(b), 21 U.S.C.A. § 841(b).

[7] Courts 106 €=290(2)

106 Courts
10611 Establishment, Organization, and Proced-

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

ttn: //rah? wraatlau: nam /avintlneintateanmes naw Daur-Ceslit Prove —LITRAT GOB bee

-—AIn 06 OIA /AANA



Keoenomm “'e! Page 6 of 7

EXHIBIT “* $e)

301 F.3d 919
301 F.3d 919
(Cite as: 301 F.3d 919)

pending. judgment against him’: in - Califor-

-nia.”(internalcitations ‘omitted)), affd én banc,’ 140
F.3d 824,vacated and remanded, 525 U.S.:957; 119
S.Ct. 398,142 L.Ed:2d 323;rev¢ on other grounds,
172 F.3d 1136.

{4 In United States v. Robinson 967 F.2d 1287 (9th
Cir.1992), the Ninth Circuit concluded that: under
California law a probation order is not a
“judgment” when the imposition of sentence is sus-
pended. See id. at 293. The Ninth Circuit noted that
California law provides: “[W]hen 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 con-
viction is rendered.” Id. (citing People v. Arguello,
59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6
(1963)); see also United States v. Haggerty, 85 F.3d
403, 406 (8th Cir.1996) (citing Robinson for the
proposition that a probation order is not a judg-
ment). In Stallings's case, there was no judgment of
conviction entered ‘and the appropriate time for re-
voking. his probation’ and_ entering judgment has
lapsed. See Cal. Penal Code'§ 1203. 3(a)' (“The court
shall have authority at any time during the term of
probation to revoke, modify, or change: its order of
suspension of imposition or execution of sen-
tence....”); see also In re Perez, 65 Cal.2d:224, 53
Cal.Rptr. 414, 418 P.2d 6, 11 (1966) (“If probation
was timely revoked, judgment could be imposed at
any time thereafter.”); Smith, 90 Cal.Rptr. at 814
(‘It is also settled that an order revoking probation,
to be valid, must be made within the period fixed in
the order of probation. If not revoked within that

period, the probation terminates automatically on.

. the last day.”). Accordingly, no valid judgment has
been entered against Stallings and, therefore, the
enhanced sentence imposed in reliance upon the
California conviction was improper.

I.

Page 5

[5][6] Stallings also contends the evidence was in-
sufficient to support his’ conviction. We review suf-
ficiency of the evidence challenges in the light most
favorable to the verdict, giving the government*923
the benefit of all reasonable’ inferences. United
States v. Calderin-Rodriguez, 244 F.3d 977, 983
(8th Cir.2001). Under this standard, we find
Stallings's contentions without merit. Witnesses
testified that Stallings shipped cocaine through the
mail and arranged for others to deliver crack on his
behalf. The government also introduced wiretap
evidence linking Stallings with admitted drug dis-
tributors and physical evidence including two
scales, an Exacto knife, a razor, and a large amount
of cash seized from a storage locker rented to
Stallings. Stallings contends that the drug dealers
testifying against him were ‘motivated ‘to reduce
their sentences through cooperation with the gov-
emment. Issues of witness credibility and bias,
however, were resolved by the jury and we do not
reconsider these issues on appeal. Jd. at 988.

OL.

7 Finally, Stallings’ contends that the sentencing
disparity between crack’ cocaine and powder ‘co-
caine crimes violates the Due Process ‘Clause.. This
argument has been repeatedly ‘considered and rejec-
ted by this court. See United States v. Johnson,.108
F.3d 919, 922 (8th Cir.1997) (citing United States
v. Carter, 91 F.3d 1196. (8th Cir.1996); United
States v. Smith, 82 F.3d 241, 244 (8th Cir.1996),
cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136
L.Ed.2d 99 (1996)). Only the court en banc can
overrule an earlier panel decision. United States v.
Riza, 267 F.3d 757, 760 (8th Cir.2001).

Accordingly, we affirm the conviction, and remand
for re-sentencing.

C.A.8 (Neb.),2002.
US. v. Stallings
301 F.3d 919

©2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

httn://weh?. westlaw cam/nrint/nrinfetream acny2ev=Rnlit Rar hlTMT BAS

tan &rifim—Na

Q/AINANO


8 061 Ole

J) AN THE COURT: OF? CRIMINAL APPEALS i :

OF TERS RECEIVED IX

COURT OF CRiuINAL APPEALS
7 — ; JUL 13 2015
my No» WR=85) 661 - 6b Abel Acosta, Clerk

IN RE MTLTON, VERAN WELUTAMS , Relator

oN RPPLICATION, FOR A WRIT oF MANOANUS
ChUSE Wo. FAST3 SAO-WL IN THE CRIMINAL OISTRICT ccourT NOG
, FROM, OALLAS. COUNTY

Ree curiam

im SUPPLEMENTAL EVIDENCELIN CAGE CITE TO SUPPORT THE

PREMISE THAT SENTENCE WAS WOT IMPOSED ON Dur au, 144s
MUN THE CAUSE RT LWAR WHEN TMPOSITION OF SENTENCE

WAS SUSPENDED: ON HEALING DATE -OF; TULN 24, (44S

7 1

COMES NOW, Relator Ciitton We Williams) (pro sel, Giles the
fore ond with supporting evidence that a anc tro Tunc is warfanted
in The cause at bar. 7

) United States ve Stalling, 301 F.3d ap aad-(U4th Cir. 2002)
“4S pacattel to the conseYad bar because in both rhe A pellant]
Relator plead wilty andlor ele contendere ; was sentenced
te three ‘years probation , subject to serving of 1% days in the
county ‘ail, and ordered to poy ceslvtution and court costs.
(See attach ed Exh. #9), .

1) In both the couse at bar and the above case cite used Sor
eromple given the sentencing Aocuments show that “impostion
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EXHL@IT rye

301 F.3d 919
301 F.3d 919
(Cite as: 301 F.3d 919)

pending judgment against him in  Califor-
nia,”(internal citations omitted)), affd en banc, 140
F.3d 824,vacated and remanded, 525 U.S. 957, 119
S.Ct. 398, 142 L.Ed.2d 323,rev'd on other grounds,
172 F.3d 1136.

[4] In United States v. Robinson, 967 F.2d 287 (9th
Cir.1992), the Ninth Circuit_concluded that under

pation —order_is nota
“judgment” imposition of ce _is_sus-

pended. See id. at 293. The Ninth Gaeuk noted that
California law provides: “[W]hen a_ sentencing
court grants probation after a conviction, it may
suspend the imposition of sentence, in which case

no judgment of. conviction is reacered, or it may ~

impose sentence and order its execution to be
stayed. In the latter case only, a judgment of con-
viction is rendered.” Id. (citing People v. Arguello,
59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6
(1963)); see also United States v. Haggerty, 85 F.3d
403, 406 (8th Cir.1996) (citing Robinson for the
proposition that a probation order is not a.judg-
ment). In Stallings's case, there was no judgment of
conviction entered and the appropriate time for re-
voking his probation and entering judgment has
lapsed. See Cal.Penal Code § 1203.3(a) (“The court
shall have authority at any time during the term of
probation to revoke, modify, or change its order of
suspension of‘ imposition or execution of sen-
tence....”); see also In re Perez, 65 Cal.2d 224, 53
Cal.Rptr. 414, 418 P.2d 6, 11 (1966) (“If probation
was timely revoked, judgment could be imposed at
any time thereafter.”); Smith, 90 Cal.Rptr. at_814
(“‘It.is_also_settled that an order revoking probation,
to_be_valid, must_be made within the period fixed in
the_order_of probation. If not revoked within that
period, the probation terminates automatically on.
the_last day.”). Accordingly, no valid judgment has
been entered against Stallings and, therefore, the
enhanced sentence imposed in reliance upon the
California conviction was improper.

“Page 6 of 7 :

Page 5

[5][6] Stallings also contends the evidence was in-
sufficient to support his conviction. We review suf-
ficiency of the evidence challenges in the light most
favorable to the verdict, giving the government*923
the benefit of all reasonable inferences. United
States v. Calderin-Rodriguez, 244 F.3d 977, 983
(8th Cir.2001). Under this standard, we find
Stallings's contentions without merit. Witnesses
testified that Stallings shipped cocaine’ through the
mail and arranged for others to deliver crack on his
behalf. The government also introduced wiretap
evidence linking Stallings with admitted drug dis-
tributors and physical evidence including two
scales, an Exacto knife, a razor, and a large amount
of cash seized from a storage locker rented to
Stallings. Stallings contends that the drug dealers
testifying against him were motivated to reduce
their sentences through cooperation with the gov-
ernment. Issues of witness credibility and bias,
however, were resolved by the jury and we do not
reconsider these issues on appeal. Jd. at 988.

Ti.

[7] Finally, Stallings contends that the sentencing
disparity between crack cocaine and powder co-
caine crimes violates the Due Process Clause. This
argument has been repeatedly considered and rejec-
ted by this court. See United States v. Johnson, 108
F.3d 919, 922 (8th Cir.1997) (citing United States
v, Carter, 91 F.3d 1196 (8th Cir.1996); United
States v. Smith, 82 F.3d 241, 244 (8th Cir.1996),
cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136
L.Ed.2d 99 (1996)). Only the court en banc can
overrule an earlier panel decision. United States v.
Riza, 267 F.3d 757, 760 (8th Cir.2001).

Accordingly, we affirm the conviction, and remand
for re-sentencing.

C.A.8 (Neb.),2002.
US. v. Stallings
301 F.3d 919

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8/4/2009


APOE NOIX

‘ge! Page 5 of 7

Exuaart * 4(a)

301 F.3d 919
301 F.3d 919
(Cite as: 301 F.3d 919)

Stallings in connection with the California convic-
tion, and, consequently, reliance on that conviction

for purposes of 21 U.S.C. § 841(b)(1)(A)(vili) sen-
tence enhancement was improper.'"!

FNI1. Stallings made a valid objection at
sentencing to his California conviction.
The grounds relied upon in this opinion to
invalidate the sentence were raised through
questioning by Judge McMillian at oral ar-
gument. The parties were then given the
opportunity to file supplemental briefs on
the issue of whether there was ever a judg-
ment entered by the California courts. The
court is now in receipt of the supplementai
briefing on that issue.

At the sentencing hearing, the government intro-
duced a. number of exhibits in an attempt to prove
up the California conviction. These exhibits show
that the defendant was charged with felony posses-
sion for sale of cocaine base in violation of section
11351.5 of the Health and Safety Code of Califor-
nia. The defendant entered a plea of nolo con-
tendere. He was sentenced to three years probation,
subject to the serving of 78 days in the county jail,

restitution and court costs. The

sentencing documents also show that “imposition of

sentence _was_ suspended.” Subsequently, a revoca-

tion of probation proceeding was commenced in the
Superior Court of California, County of Alameda.
However, the record made at the sentencing hearing
indicates no further action was taken on the Califor-

nia_probation officer's revocation recommendation.
The remaining reference to the California convic-
tion is in an Oregon Presentence Report, jntroduced
into evidence at the sentencing hearing, which

. States that California “revocation proceddings are
unlikely given Stallings's conviction in Federal
Court.” FN?

FN2. The referenced federal court convic-
tion is a 1995 conviction for Interstate
Travel in Aid of a Crime of Racketeering

Page 4

prosecuted in the United States District
Court for the District of Oregon.

The final disposition of the California conviction
resulted in Stallings receiving probation with the
imposition of sentence suspended. Although proba-
tion_revocation proceedings were commenced _by

the probation office, the California court neither re-

voked_ probation nor did it pronounce judgment.
SeeCal.Penal Code §  1203.2(b);_ see also

*922People v. Smith, 12 Cal.App.3d 621, 90
Cal.Rptr. 811, 814 (1970) (‘It is equally clear that
probation was revoked ... and a bench warrant was
issued so that judgment and sentence could be im-
posed, imposition thereof having been suspended
approximately three years earlier....”). If imposition
of sentence was suspended, and probation was nev-
er_revoked, then there is no judgment entered
against the defendant. As explained in an early
California Supreme Court case:

When judgment is not pronounced and further pro-
ceedings are suspended, there is no judgment
against [the defendant]. His activities are limited
only by the terms of the probationary order, un-
der thé supervision of the probation officer. Upon
revocation of probation the defendant is entitled
to a hearing and to be sentenced, before he can be
committed to the appropriate institution:

Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182,
187 (1959) (citation omitted); see also People v.
Pennington, 213 Cal.App.3d 173, 261 ‘Cal.Rptr.
476, 478 (1989) (“Where no sentence is imposed at
the time probation is granted, a subsequent decision
terminating probation requires that judgment be
pronounced.”(citing Cal.Penal Code § 1203.2, subd.
(c))); United States v. Qualls, 108 F.3d 1019, 1023
(9th Cir.1997) (“There is no judgment pending
against a probationer when the court withholds im-
position of judgment and suspends further proceed-
ings. Because the California court granted [the de-
fendant] probation and suspended further proceed-
ings, [the defendant] does not have a final or

©2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

mene Dever Onl it Orne —UIT NAT BO, Fn ten Pri Re In

earnang \


‘ , ; Page 1 of 7

ExiieqT *|
: APPENDIN ‘E'

Date of Printing: Aug 04, 2009
KEYCITE

US. v. Stallings, 301 F.3d 919 (8th Cir.(Neb.) Aug 23, 2002) (NO. 01-3800)
Citing References: limited to Tenth Circuit Ct. App., New Mexico, Other Court, selected document
types
Positive Cases (U.S.A.)
oe ** Cited
c 1 USS. v. Sierra-Estrada, 248 Fd, Appx. 973, 987 (10th Cir.(Utah).Oct 01, 2007) (Table, text in,
_ ‘WESTLAW, NO. 05-4086, 05-4117)" HIN: 3 (F.3d)
H 2 USS. v. Alvarado, 458 F.Supp.2d 1266, 1268+ (D.N.M. Jul 20, 2006) (NO. CR 05 377 BB) HN: 3
aoe, (F.3d)

© 2009 Thomson Reuters. All rights reserved.

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tho dhe Couck will ssue Instructions to the Oallas, Com
Count District Cour toe actor noi” Nunc fre Tuanc. wa her:

the. cause ak, bar, to-read the corceckimdedre: Ahad senbtnee ©
Was, \nposed ahd fowl Wad been “ater Fabs are Y ‘deo3't -

Res pecthully Submited)

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Nikon eran W\ams #349315 Lovoc\
Tim E, Hanilton Correctional Center
SO4bS Mnem\ ie S Road
Hodaen ; Ova.

CERTIFICATE OF MATLING

An hereby) ced hy) hot rr “Ayue and corrected opy | of the
fore. ong, was marled ey preps say through the WS.
Poel 82 SONIEE OR ThE xi =" Aap i Says Povss “ay the

below tisted ree memes eee

Coukt OF Cad L MS
FoR THE STATE OF atv .
ATTN’ court CLERK (Abel Aeosta)
RO. BOX 1230%

cACITOL station a
“hUstt nN “RENAS 7 OUON@UNY

DALLAS Count orsieIcr coucr WD, S
ATTN: couer Leek (Felacta PrTee)
133 N. TNOUSTRTAL BIND:

DNUAKS 4 TEXAS 15207

Wie Ve AL 3437S (0d00),
[bibian\)

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ai

bee abkached Exh. * VQ) on gaye 5 of Wd ot aat.), /
D The only diMerence ‘in beth the cibed case cite and dhe cause
ot bar 15 that on Tuly 2, 1095 the Dallas Counky Court clerk
Tncorceeted teeiked on The Yudament and sentence that the .
date- of. the Wearin wer FA, TAAd): was also Ahe dote. seatence
was ‘Impose y (See Rodhed Exh. *2 a5 stamped Sled on May
05, 2015 by Qallas County District Coury Clerk (felicia titre) \}
wthen ‘in opposition to said ‘correc ly Med dXocumenk, the
duly ay vane guid prea documents |Lranseripy clear recite
Ahe command of the sentencing ude Manny Nwverea). Ahad the
" \innositbion Ang 1S Suspended Wereinatter in the oes\
Swhyes\ of quetice." Mee July 24, \AAS gas hy plea Nearinay
transcripts WA Cause Wo. FAS13S40- NL).
Therefore , any loaicad person could dedermine that WY would
be nok ony \moossi ble 1 buk- also unreasonoble- for. Lhe ida
mendtin. the. cause ok doar. to had. recited Ake. hearin dade
oF July 244, 1995. as the. aAake seatence. was Impose. wher the.
hearin Transcripts on the Same ehobed dot] Yokally. contradick §
thot said ‘incored\y rected ote on the Gudamends
The court records in the stebe wid of haheod corpus pro -
ceeding under Writ tle, WAS13440~(A\} Ex Parte Milter Williams
clearly” show Yat in February of 2003, Tudge Manny Kiverea
issued on brder Desianakina Tssue and etated within said
order Yoel, “There “are unresolved’ sssues te the erga \ iby
tpplicant’s comPinement yam) in shock he had reahiches “
to had impose sentencing at the conclusion of the ordered
3 years probeted which Stoulk had been July ay, 1Aag,
Wherefore, premises considered Relator proys the at the |
conclasion AY al\ the cbove. stated evidence. wh otladwed exhib
in EX Parke Milton Williams, Wedd No, Wa673%4D =LA); (Stabe of |

» Texas. ve Nkitton Veron Willhams.i Case “Wo, F4ST3 AO -NLA andlor . |
Wilken Neran Williams wl Dallas County Distercde Court Clerk ( €ib2 simenuns\

fase 2 of 3