                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4009


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

EVER ENRIQUE MEDINA, a/k/a Ever Medina, a/k/a Ever E Medina,
a/k/a Ever Enrique Andrade Medina,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      James K. Bredar, District Judge.
(1:11-cr-00345-JKB-1)


Argued:   May 17, 2013                    Decided:    June 10, 2013


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson    wrote   the
opinion, in which Judge Duncan and Judge Wynn joined.


ARGUED: Patrick E. Kent, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant.   Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.   ON BRIEF:
James Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellant.   Paul E. Budlow, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
WILKINSON, Circuit Judge:

      Defendant          Ever     Enrique    Medina     challenges      the    district

court’s ruling that a diversionary disposition, in which a court

sentences        a    criminal     defendant      but   does   not    formally      enter

judgment against him, is a predicate conviction for the purpose

of a sentencing enhancement imposed under U.S.S.G. § 2L1.2. For

the reasons that follow, we affirm.



                                             I.

      In December 2004, Medina, a citizen of El Salvador, pled

guilty      to       possession     of   a   concealed     dangerous      weapon     and

possession of marijuana, both in violation of Maryland law. The

state judge issued a “probation before judgment” diversionary

disposition, sentencing Medina to eighteen months of probation

for his offenses without entering judgment in the case. Medina

was subsequently arrested for driving under the influence in

December 2006 and was convicted in early 2007, triggering his

deportation to El Salvador.

      After          illegally    reentering      the    United      States    at    some

unknown time, Medina resurfaced in Baltimore and was arrested in

September 2008 for driving without a valid license. He was found

guilty and sentenced to sixty days in jail. Approximately two

years later, Medina became involved in an altercation at a bar

and   was    arrested       for    threatening      a   security     officer     with   a

                                             2
knife.      He    pled   guilty      to    assault         in    the   second      degree    and

received a ten-year suspended sentence along with five years of

probation. Shortly after sentencing on the assault charge, he

was detained by Immigration and Customs Enforcement.

       On June 23, 2011, Medina was indicted by a federal grand

jury   in    the     District       of    Maryland     for       unlawful     reentry    after

removal, in violation of 8 U.S.C. § 1326. He pled guilty without

a plea agreement. At sentencing, the parties did not dispute

Medina’s base offense level but did clash over whether his 2004

probation-before-judgment                 disposition           triggered     a    four-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(D), which applies

if a defendant “previously was deported, or unlawfully remained

in the United States, after a conviction for” a felony. Medina

argued,          inter      alia,        that        the        term    “conviction”         in

§ 2L1.2(b)(1)(D) does not include diversionary dispositions such

as probation before judgment because other Guidelines provisions

-- as well as the definitions statute applicable to the federal

immigration laws generally -- specifically consider diversionary

dispositions to be convictions while § 2L1.2(b)(1)(D) does not.

He also noted that Maryland courts generally do not consider

diversionary        dispositions          to    be    convictions       for       purposes    of

state law.

       The       district    court,       relying      on       what   it   called      “clear

statutory guidance,” J.A. 162, rejected Medina’s arguments and

                                                3
found     that     the     2004       disposition          was,    in     fact,      a      felony

conviction       within        the        meaning     of    §     2L1.2(b)(1)(D).           As    a

threshold       matter,        the    court       concluded       that    the       disposition

constituted a predicate conviction under the criminal statute

itself,    8     U.S.C.        §    1326,    because       the    applicable         definition

section, id. § 1101(a)(48)(A), explicitly defines convictions to

include     diversionary             dispositions.         The     district         court     then

concluded       that     the       term    “conviction”         should    retain      the     same

meaning across the criminal statute and the Guidelines, given

the lack of a clear indication to the contrary. Therefore, the

trial      judge       reasoned,            the       explicit       classification              of

diversionary       dispositions             as   convictions       in     §    1101(a)(48)(A)

should apply in § 2L1.2(b)(1)(D) as well.

     The       district        court        accordingly         applied       the    four-level

sentencing enhancement for a prior felony conviction, yielding

an advisory Guidelines range of ten to sixteen months. However,

relying on 18 U.S.C. § 3553(a), the trial judge declined to

follow    the    Guidelines          recommendation         after       finding      that     that

“the public does need to be protected from [Medina]” because he

is “dangerous” and committed an “extremely serious assault” that

“easily could have concluded with a homicide.” J.A. 239, 242.

The court carefully reviewed each of the statutory sentencing

factors and concluded that:



                                                  4
       the sentence that is sufficient, but not greater than
       necessary to comply with the purposes set out in [the
       sentencing statute] in this Court’s judgment is 30
       months in prison. And that, very purposely, is one
       year more than the top end of the guideline range. I
       think the guidelines are off by at least a year in
       their   assessment  [of]   the  seriousness   of  the
       situation.

J.A. 243. The court sentenced Medina to thirty months in prison,

and this appeal followed.

                                        II.

       At the outset, we address Medina’s contention that Maryland

law -- rather than federal law -- should govern the question of

whether     a   diversionary      disposition      constitutes      a     predicate

conviction under U.S.S.G. § 2L1.2(b)(1)(D). See Appellant’s Br.

3,   8-9.   Although     some    Guidelines    provisions     may       incorporate

definitions      from    state   law,   it    is   clear    that    federal     law

controls our interpretation of the Guidelines absent a specific

indication to the contrary. See United States v. Reed, 94 F.3d

341, 344 (7th Cir. 1996) (“Like any other federal statute, the

Guidelines must be interpreted in accordance with federal law,

even   when     those   Guidelines   refer    to   some    event    occurring    in

state court.”). We may therefore rely on Maryland law in defining

the term “conviction” only if the Guidelines direct us to look to

state law for interpretive guidance.

       However, § 2L1.2(b)(1)(D) does not reference or incorporate

a state law definition of “conviction.” Rather, as our sister


                                         5
circuits    have    squarely       concluded,     “the    plain       language   of

§ 2L1.2, considered in tandem with other provisions, as well as

the controlling case law, clearly establishes that the provision

does not limit the term ‘conviction’ to those judgments that

would be considered convictions under state law.” United States

v. Reinoso, 350 F.3d 51, 56 (2d Cir. 2003); see also, e.g.,

United   States    v.    Cuevas,    75   F.3d   778,     781   (1st    Cir.   1996)

(same). That Maryland may not consider probation before judgment

to be a conviction for its own purposes is thus of no moment to

this   appeal,     and   we   shall      rely   solely    on   federal     law   to

determine    whether      Medina’s       2004   disposition       constitutes     a

predicate conviction here. 1




1
     To be sure, the application notes for § 2L1.2(b)(1)
instruct a sentencing court not to apply the enhancement for a
juvenile conviction “unless such conviction is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted.” U.S.S.G. § 2L1.2 cmt. 1(A)(iv).
However, this narrow reference to state law is, by its very
terms, limited to the domain of juvenile convictions and not
relevant here. Moreover, were we to accept Medina’s argument
that we should look to state law in defining the term
“conviction” in § 2L1.2(b)(1)(D), we would render superfluous
the application notes’ reference to state law concerning
juvenile offenses. Given that we generally “avoid constructions
that would reduce some terms to mere surplusage,” In re Total
Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir. 2013), the
Sentencing Commission’s express reference to state law in the
context of juveniles supports our conclusion that federal law
governs interpretation of the term “conviction” in other
contexts.


                                          6
                                               III.

       The question before us is thus whether a guilty plea that

results    in      a    diversionary       disposition            is    a    conviction      under

federal law. As an initial matter, it is beyond dispute that the

plain meaning of the term “conviction” includes a guilty plea

followed      by       entry    of   judgment.        For       instance,        in    Shepard    v.

United States, the Supreme Court squarely held that a guilty

plea   for    a    predicate         offense      is    a       conviction       that     triggers

sentencing enhancements under the Armed Career Criminal Act. 544

U.S. 13, 19 (2005). And long before Shepard, the Court stated

that a guilty plea “is itself a conviction” and that “[l]ike a

verdict of a jury it is conclusive.” Kercheval v. United States,

274 U.S. 220, 223 (1927); see also Florida v. Nixon, 543 U.S.

175,    187     (2004)         (“While     a    guilty          plea    may      be    tactically

advantageous           for     the   defendant,         the      plea       is   not    simply    a

strategic       choice;         it    is       itself       a     conviction.”          (internal

citations omitted)).

       Despite the Supreme Court’s pronouncements on the issue,

Medina contends that the sentence he received -- eighteen months

of probation pursuant to a diversionary disposition -- somehow

transforms        his    2004     guilty       plea    into      something        other    than    a

conviction for purposes of §2L1.2(b)(1)(D). In support of this

claim, he points to the fact that other Guidelines provisions

addressing a defendant’s criminal history, such as § 4A1.2(f),

                                                 7
specifically           reference          diversionary             dispositions         while

§ 2L1.2(b)(1) does not. Appellant’s Br. 10-12. The government

responds       that    the     reference      to     diversionary          dispositions   in

§ 4A1.2(f) is only further evidence that the plain meaning of

the term “conviction” encompasses dispositions like the one at

issue here.         Gov’t Br. 16-17.

       We need not address Medina’s negative implication argument,

however, because Congress has already spoken to the matter at

hand. In the general definitions section for the immigration

laws, Congress specifically defined a conviction to include a

diversionary          disposition        --   that     is,     a    situation      in   which

“adjudication of guilt has been withheld” -- if (1) “a judge or

jury has found the alien guilty or the alien has entered a plea

of guilty or nolo contendre or has admitted sufficient facts to

warrant a finding of guilt” and (2) “the judge has ordered some

form of punishment, penalty, or restraint on the alien’s liberty

to be imposed.” 8 U.S.C. § 1101(a)(48). Given that § 2L1.2 --

unlike     §    4A1.2     --      relates       specifically         to    an    immigration

offense,       we   conclude,       as    the       district       court    did,   that   the

definition of conviction in § 1101 must control our reading of

§ 2L1.2(b)(1)(D). Applying the definition from § 1101 to the

case     sub    judice,      we    find       that     Medina’s       2004      diversionary

disposition was, in fact, a conviction because he pled guilty to

the charged offenses and was sentenced to some form of restraint

                                                8
on    his       liberty,     namely       probation       for    a    period       of    eighteen

months.

       Our      decision     here      is    in    accord    with     all     of    our    sister

circuits to have considered the issue. The Fifth Circuit, for

instance, has also relied on the definition of conviction in

§    1101    to    hold     that   a   diversionary         disposition         of      “deferred

adjudication probation” constitutes a predicate conviction under

§ 2L1.2. United States v. Ramirez, 367 F.3d 274, 277 (5th Cir.

2004); see also, e.g., United States v. Anderson, 328 F.3d 1326,

1328 (11th Cir. 2003) (same); United States v. Zamudio, 314 F.3d

517, 521-22 (10th Cir. 2002) (same). We agree that diversionary

dispositions         arising       from      guilty      pleas   --       including      Medina’s

probation          before     judgment            disposition        at     issue       here   --

constitute predicate convictions under § 2L1.2(b)(1)(D). To hold

otherwise would be to ignore both Congress’s intent to include

diversionary dispositions within the term “conviction,” see 8

U.S.C.      §     1101(a)(48)(A),           and    the   Supreme      Court’s       instruction

that a guilty plea plainly constitutes a conviction, see Nixon,

543 U.S. at 187.

                                                  IV.

       For the foregoing reasons, the judgment of the district

court is affirmed.

                                                                                         AFFIRMED



                                                   9
