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,. ,_ ' , . j j ,, . *pgrg/ofr>_riming; Aug 04, 2009
KEYCITE

l> `.U S. v. Staliings, 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 documeilt
types ,
Positive Cases (U. S. A.)
** Cited

C ` y ' l U.' S v.` Sierra'-Estrada, 248 F<,d ,.Appx 973, 987 (I_Oth Cir. (Utah). Oct Ol, 2007) (Tab_le, text m
_ - v WESTLAW, NO. 05-4086, 05-411.7) " HN: 3 (F.3d)
l'l _ _ 2 U. S. v. Alvarado, 458 F. Supp. 2d 1266,1268+ (D.N.M. Ju120, 2006) (NO. CR 05 377 BB) HN: 3
(F.3d) _

1

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301 F.3d 919

'301 F.3d 919

(Cite as_: 301 F.3d 919)

United'States Cornt of Appeals, '~ b
Eighth Circuit. .
UN'ITED STATES of America, Appellee,
v. -
Pablo STALLINGS, Appellant.
No.l 01-3800.

Submitted: May 13,' 2002. v
Filed: Aug. 23, 2002.

Defendant was convicted i_n the United States Dis-
trier Court for the District of Nebraska,' Lyle E.
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 govem-
ment's intent to seeklsentencing 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 _ _ . ry . ~- ~ \

,*'.

0 Affxrmed m part, reversed rn part and remanded for

resentencing . ,

' W'est Headixotes ..
111 sentencing and Pnni`shinenr`sson €>.:.>1366

350H Sentencing and Punishment
350HVI Habitual and Career Offenders
350HVI(K) Proceedings
350Hkl363 Recidivist or n'Habitual Of-
fender Charge

 

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-

350Hk1366 k Tnne for Filing or Insri-

il

u E l Page 2 of7

Page l

`,ant ample time to go to trial, and to plan his trial

strategy with full knowledge of the consequences of
a potential guilty verdict. Comprehensive Drug Ab-
use Prevention and Control Act of 1970, §
4ll(a)(l), 21 U. S. C. 'A§ §.85](a)(1)

[2| Sentencing and Punishment 350H @1361

350H Sentencing and Punishment 7
350HVI Habitual and Care;."er Offenders
350HVI(K) Proceedings ' ~

350Hkl36l k. Notice of Intent to Seek
Enhancement. Most Cited Cases _
Defendant received timely notice of govemment'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. Cornpre- ,

hensive Drug Abuse Prev_ention and Cont:rol Act of

_ 1970, § 411(a)(1), 21 Us_. CA. § 851(a)(1)

[3] Sentencing and Pu`nish_ment 350H €7-==>1330

350H Sentencing and Punishment
350HVI Habitual and Career OH`enders
' 350HVI(I) Subsequent Circumstances Af-
fecting Prior Adjudication'
' 350Hkl330 k; In General. Most Cited

Sentencing and Punishment 350H W1338

350H Sentencing and Punishment
350HVI Habitual and Career Offenders _
350HVI(I) Subsequent Circumstances Af-
i`ecting 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.

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9//1/')[\{\0`

kro;uor~i § ~ ' Page 3 of7
ann m 310
301 F.3d 919 ‘ ~ d Pagcz
301 F.3d 919
(circ' ace 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

U..S C. A § 851(a)(l); West's Ann. Cal.Penal Code § .

1203 2. -,.
[4] Sentencing and Punishment 350H €W480

350H Sentencing and Punishment
350HII Sentencing Proceedings in General
350H11(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 OH`ender ` `

350Hkl93l k. Probation Withou__t 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 trendered, 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.

151 criminal Law 110 €==:>1144.13(3)

'llOCriminalLaw '_ ‘ ' \,_ '
110XXIV Review `
l 10XXIV(M) Presumptions
110k1144 Facts or Proceedings Not
Shown by Record

l lOkl 144.13 Sufficiency of Evidence
- 1 1(_)k1144.13(2) Construction of
Evidence

110kll44. 13(3) k Construction
in Favor of Government, State, or Prosecution.»
Most Cited Cases ‘- .- ~ ~i»:

criminal Law 110 @1144;"13151 ' ' '

110 criminal Law

110XXIV Review
l lOXXIV(M) Presumptions
llOkl 144 Facts or - Proceedings Not
Shown by Record

110k1144 13 Suf`ficiency of Evidence
. 110kl 144.13(5_) k. lnferences_ or

" Deductions from Evidence. Most Cited Cases

'i`he 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

. 161 conspiracy 91 €`>=47112)

91 Conspiracy
9111 Criminal Responsibility
9 lII(B) Prosecution
91k44 Evidence '
91k47 Weight and Sufficiency
91k47(3) Particula`r 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 andl 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. § 84l(b).

[7] -Courts 106 €==>90(2)

106 Courts
1061I Establishment, Organization, and Proced-

©' 2009 nicmscn chicrs/Wcsi._Nc claim ic orig. Us ch. Wcrks.

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`T

 

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inventor

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

10_6II(G) Ru_les of Decision `.H'."` " '

v 106k88 P.re_vious Dec_i_s_ior`is as Cont_rolling
'. or as Precedents
1 -' ' _ 106160 Decisions of S_ame Court or
Co-Ordinate Court . ~
' ' lO6k90(2) k .Number of Judges
Concurring in Opinion, and Opinior'i 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. Morar_i, argued, Omaha, NE, for appellee.

Bcfcrc McMiLLiAN, ‘FAGG, and MELLoY, cir-
cuit Judges.

MELLoY, circuit indch

Pablo Stallings was convicted of conspiracy to pos-
sess with intent to distribute cocaine base, The gov-
_ernment filed an_ information seeking to enhance
lStallings's sentence to life imprisonment The dis-
trict court, relying `_up_o_ii the 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
t conviction but reverse and remand the sentence im-
posed.

I. ;
I

[l][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

\E:“
Ex\l:?%:\ . jtc\

Page' 3

,-Cir 2000). We first consider the procedural and no-

tice challenges to the § 851(a) inforrnation. `A pre-

requisite for sentence enhancement under 21 U S. C.

§ 841(b) i_s 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-
ernment 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 Unitecl States v. Johnson, 94'4 '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-
ernment's intent to seek the § 851(a) enhancement
before trial and had an opportunity to challenge the

convictions before the sentence was irnposed. 21

U. S. C. § 851(b), (c); see also Robinson, 110 F. 3d at
1328 (f`iling of. information minutes before voir dire
satisfied requirements of § 851(a)(l))

:`[3] 5tallings 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 .t_he use of

the 1987 Nevada conviction, However, he` raises a
variety of challenges to the use of the 1993 Califor-

nia conviction, Based _up__on the record, _we conclude

iudgment was never properly entered against

© 2009 Thomson _Reuters/West. No C_lairn to Ori`g. US Gov. Works.

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Page 4 of 7

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301 F.3d 919
301 F.3d 919 _ _
(cite as: 301 md 919)

Stallings in connection with the California convic-
tion, and, consequently, reliance on that convic_tion
for purposes of 2-1 U.S.C. § 84l(b)(1)(A)(viii) sen-
tence enhancement was improper."`"'

 

 

FNl. 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 supplemental
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 probation4
subij to the serving of 78'days"in the county jail
ansLoLde_redL_paLrestitution and court costs. The
sentencing documents also show that “imposition of
sentence was suspended;” Subsequently1 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
S.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 proceddings are
unlikely given Stallings's conviction iii Federal
Court.”FNZ

 

 

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

- Page 4

prosecuted iri the United States District
' Court for the District of Oregon. f

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 o_f 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 1'73, 261 ‘Cal.Rptr.
476, 4_78 (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.l997) (“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.

i.“._.//.-.,.i.n .-..\..¢i,.--. ,.,`.../....:..¢/....:..t,`t..,.,.w. ,.,....,o,..,_o..i;¢p,....n_u`"i~it‘,ir`1": p.i;._ t,`.` p,;rw.‘_\r,.
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witnesses “F_' - _ Page60f7

Eit\l’i_t>:r‘t "£‘ §tc\

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

pending judgment against him - in - Califor-

»nia ’-’(intemal citations omitted)), aj"d en banc 140
vF. 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. t _

- [4] ln United States v Robinson, 967 F 2d 287 (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 i‘endered, 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 Slates v. Haggerty, 85 F.3d
403, 406 (8th Cir.l996) (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-
`vokin'g his probation and entering judgment has
lapsed. See Cal. Penal Code § 1203 3(a) (“The4 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, ll (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.

II.

Page 5

15][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 govemment*923
vthe 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

4 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`. Id. at 9818.

`[7] Finally, Stallings contends that the sentencing ‘
disparity between crack cocaine and powder co-
caine crimes violates the Due Proces_s Clause._ This
argument has been repeatedly considered and rejec-
`ted by this court. See United States v. Johnson, 108
F.3d 919, 922 (8th Cir1997) (citing United States
v. Carter, 91 F.3d 1196 (8th_Cir.l996); United
States, v. Smith, 82 F.3d 241, 244 (8th'Cir.l996),
cert. denied, 5'19 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.S (Neb.),zooz.
U.S. v. Stallings
301 F.3d 919

©'2009’ Th<>mson Reu'iers/west. No claim to oag. Us Gov. w'ori<s.

hfm-Tl/Weh'). Wahtlziw nhm/ni~int/nrii»i'fetrp.nm nerw‘)cv=§nlit£rnr?t-;UTKX?'.¢;?;+‘,;=" 'inn,?r;§~.=?\rn

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1 ' Exui%_:r EWL&\

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. § 84'1(b)(l)(A)(v1ii) sen_-_
tence enhancement was improp_e_r.FNl _

 

 

FNl 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 supplemental
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 copr
tendere. He was sentenced to three years probation,
subject to the serving of 78 days in the county jail,
and ordered to pav 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

S. 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

1 states that California “revocation proceedings are
unlikely given Stallings's conviction in Federal
Court.” FNZ

 

 

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 be'en 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 Uan
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&ifrri=No...

8/4/2009

Mo'eubt
Eit\is:'r
301 F.3d919

301 F.3d 919
(cire as= 301 F.3d 919)

pending judgment against him in Califor-
nia. ”(intern_al 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] 111 United States v. Robin.s'ohL 967 F.2d 287 (9th
Cir. 1992), the Ninth Circuit concluded that under
&Wbatiom Order__ is not

dgment” 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

 

 

 

*‘si

no judgment of - conviction is rendered, or it may ‘T

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 lalso United States v. Haggerty, 85 F.3d
403, 406 (8th Cir.l996) (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 ln 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.”); Srnith, 90 Cal.Rptr. at 814
(“_It is also settled that an order revoking probation
to_be_valid,_mu_st be made within the period fixed m
the order of probation, If not revoked within that

 

>period,_ the pro mbation terminates automaticallyo on

tli_te__Last_cla)L?’). Accordingly, no valid judgment has
been entered against Stallings and, therefore, the
enhanced sentence imposed in reliance upon the
California conviction was improper.

II.

IT\E

.Page 6 of7 g

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'thi'ough 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. Id. at 988.

III.

[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.l997) (citing United States
v. Carter, 91 F.3d 1196 (8th Cir.l996); United
States v. Smith, 82 F.3d 241, 244 (8th Cir.l996),
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 affu'm the conviction, and remand
for re-sentencing.

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

¢.@

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

http://webZ.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&if`m=No...

 

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