USA v. Smith

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 30, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10280
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-00389-JC-C-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
EDMOND HUDMOND SMITH, IV,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 30, 2010)
Before DUBINA, Chief Judge, EDMONDSON and MARTIN, Circuit Judges.
PER CURIAM:
Appellant Edmond Hudmond Smith appeals his conviction for being a felon

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in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Smith argues
that the district court erred by denying his motion for judgment of acquittal
because it erroneously concluded that he previously was convicted of a felony in
Alabama state court under Alabama Code § 13A-11-72(a). Smith argues that he
was convicted of a misdemeanor under subsection (b) of that statute. In support,
Smith points to the certified copy of the judgment (“Conviction Report”), which
states that he was convicted under § 13A-11-72(b), and to the fact that he was
sentenced to only six months’ imprisonment.
We review the denial of a motion for judgment of acquittal de novo. United
States v. DuBose, 598 F.3d 726, 729 (11th Cir. 2010). “In reviewing the
sufficiency of the evidence underlying a conviction, we consider the evidence in
the light most favorable to the government.” Id. (internal quotation marks
omitted).
Under § 922(g)(1), it is unlawful for a person “who has been convicted in
any court of a crime punishable by imprisonment for a term exceeding one year,”
to ship, transport, or receive ammunition affecting interstate commerce. 18 U.S.C.
§ 922(g)(1). Relevant to this case, subsection (a) of the Alabama statute entitled
“Certain persons forbidden to possess pistol,” prohibits a person who has been
convicted “of committing or attempting to commit a crime of violence” from
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owning a pistol or having one in his possession or under his control. Ala. Code
§ 13A-11-72(a). Subsection (b) provides that “No person who is a drug addict or
an habitual drunkard shall own a pistol or have one in his or her control.” Id.
§ 13A-11-72(b). A violation of subsection (a) of § 13A-11-72 is considered to be
a Class C felony and is punishable for not “less than 1 year and 1 day,” and “not
more than five years.” See Matchum v. State, 880 So.2d 1202, 1208 (Ala. Crim.
App. 2003); Ala. Code §§ 13A-5-4, 13A-5-6(a)(3), 13A-11-84(a). In contrast, a
conviction under subsection (b) of § 13A-11-72 is considered to be a
misdemeanor, “punishable by imprisonment for any term less than one year.” See
Ala. Code §§ 13A-11-72(b), 13A-11-84, 13A-1-2(9) (defining “misdemeanor” as
“[a]n offense for which a sentence to a term of imprisonment not in excess of one
year may be imposed”).
The parties do not disputed that a conviction under § 13A-11-72(b) is a
misdemeanor conviction and a conviction under § 13A-11-72(a) is a felony
conviction. The only dispute is whether the district court was correct in its
determination that Smith was convicted under § 13A-11-72(a) and not § 13A-11-
72(b).
The evidence supports the district court’s finding that Smith was indicted
for and pleaded guilty to a felony offense. The indictment specifically references
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§ 13A-11-72(a) and does not made any allegations supporting a conviction under
§ 13A-11-72(b). During the plea colloquy, the state court judge informed Smith
that the offense to which he pleaded guilty carries a maximum five-year prison
term. The paperwork completed following the plea includes a reference to the
offense being a felony and Smith paid the docketing fee applicable to a felony
conviction. Further, the district court sentenced Smith to a term longer than one
year in prison based on the more than six months of credited time served
combined with the additional six-month term imposed at sentencing. See United
States v. Glover, 154 F.3d 1295–96 (11th Cir. 1998) (in determining the sentence
imposed, aggregate the credit awarded by the sentencing court for time served and
the additional sentence term imposed).
Therefore, we conclude that Smith’s criminal history included a felony
conviction under Alabama Code § 13A-11-72(a), for which he served a sentence
in excess of one year. Thus, the district court correctly determined that this
predicate offense constituted a felony and, therefore, supported Smith’s conviction
under § 922(g)(1). Accordingly, we affirm the district court’s denial of Smith’s
motion for judgment of acquittal.
AFFIRMED.
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