United States v. Joshua

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-50091
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRELL DESHON JOSHUA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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September 6, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Appellant Joshua’s sentence for distribution of less than
one gram of crack cocaine was enhanced from approximately three
years to over 12 years (151 months) under the career criminal
provision of the Sentencing Guidelines. See U.S.S.G. § 4B1.1. On
appeal, he contends that one of his prior convictions – a nolo
contendere plea to robbery successfully discharged by a deferred
adjudication – should not have been counted against him. Like the
district court, we disagree and affirm his sentence.

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The career-offender provision of section 4B1.1 applies if
the defendant has “at least two prior felony convictions of either
a crime of violence or a controlled substance offense.” See
U.S.S.G. § 4B1.1. The guideline refers to section 4B1.2 for a
definition of “two prior felony convictions.” Id. Under section
4B1.2, comment. (n.1), the term “prior felony conviction” means “a
prior adult federal or state conviction for an offense punishable
by death or imprisonment for a term exceeding one year, regardless
of whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed.” Id. The last clause
of the definition does not appear to exclude diversionary
dispositions from the ambit of prior convictions.
As Joshua notes, this issue of law is technically novel
in the Fifth Circuit. One of our decisions has assumed, without
the point being explicitly raised, that a deferred adjudication
that otherwise meets the requirements for a felony conviction under
the career offender guideline will be counted. See United States
v. Kates, 174 F.3d 580, 584 (5th Cir. 1999). Other decisions have
held in related sentencing situations that deferred adjudications
should be counted as prior felony convictions. United States v.
Valdez-Valdez, 143 F.3d 196, 201 (5th Cir. 1998) (defendant’s
guilty plea to a deferred adjudication was a “prior felony” for
purposes of the guideline governing illegal-reentry offenses,
section 2L1.2); United States v. Cisneros, 112 F.3d 1272, 1282 (5th

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Cir. 1997) (deferred adjudication is a “prior conviction” for
purposes of the statutory sentencing enhancement under 21 U.S.C. §
841(b)(1)(A)).
Moreover, this court has equated a Texas deferred
adjudication with a “prior conviction” in regard to the firearms
sentencing guideline, whose interpretation mirrors the guideline in
this case. United States v. Stauder, 73 F.3d 56, 56-57 (5th Cir.
1996). In Stauder, the court noted that although the guideline for
firearms offenses, U.S.S.G. § 2K2.1, used the term “conviction,” it
referred specifically to the criminal-history provisions, which
include deferred adjudications in calculating a defendant’s
criminal history score. See U.S.S.G. § 4A1.2. Similarly in this
case, section 4B1.2, comment. (n.4) incorporates the diversionary-
disposition provisions of section 4A1.2. And under that guideline,
a plea of nolo contendere is counted even if a conviction is not
formally entered, section 4A1.2(f), because this result “reflects
a policy that defendants who receive the benefit of a
rehabilitative sentence and continue to commit crimes should not be
treated with further leniency.” Section 4A1.2, comment. (n.9).
Not only does the direction of our cases, as well as the
plain language of the guidelines, support including a deferred
adjudication in the career-offender provision, but authorities from
other circuits have already arrived at this conclusion. See United

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States v. Pierce, 60 F.3d 886, 892-93 (1st Cir. 1995); United
States v. Jones, 910 F.2d 760, 761 (11th Cir. 1990).
For these reasons, we agree with the district court’s
interpretation of section 4B1.1 and AFFIRM the sentence. AFFIRMED.

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