                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2748
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                       Lee Adams

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 14, 2013
                               Filed: June 11, 2013
                                   [Published]
                                 ____________

Before BYE, MELLOY, and SMITH, Circuit Judges.
                           ____________

PER CURIAM.

       A grand jury in the Eastern District of Arkansas indicted Lee Adams for being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A grand jury
in the Middle District of Florida indicted Adams for being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court1 granted a joint
motion to consolidate the two cases for plea and sentencing. Adams pleaded guilty
pursuant to a plea agreement to the counts set forth in both indictments, but the
parties agreed to leave to the district court the determination of whether the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), applied. Adams's prior convictions
included three offenses under the assault statutes of the State of California. Two of
the assault offenses could be classified as either misdemeanor or felony convictions,
depending upon the length of incarceration imposed—so-called "wobbler" offenses.
Adams agreed that the third offense, inflicting corporal injury upon a spouse, was a
felony. The district court found that both wobbler offenses were in fact felonies and
sentenced Adams under the ACCA. Adams timely appealed his classification as an
armed career criminal, arguing that the two wobbler offenses were misdemeanors
under California law. We affirm.

                                    I. Background
      In 1984, Adams was convicted in the Superior Court of California, Santa Clara
County, in case number 95134 of assault with a deadly weapon or force likely to
produce great bodily injury—other than a firearm, in violation of California Penal
Code § 245(a)(1). For this conviction, Adams received a sentence of three years'
formal probation, with imposition of sentence suspended, with a condition of
probation of jail time of 365 days to be served in the county jail, with credit for time
served of 122 days. In 1988, Adams was again convicted in the Superior Court of
California, Santa Clara County in case number 121468 for the same offense. For this
conviction, Adams received a sentence of three years' formal probation, with
imposition of sentence suspended, with a condition of probation of jail time of 365
days to be served in the county jail, with credit for time served of 96 days. In 1991,
Adams was again convicted in the Superior Court of California, Santa Clara County,


      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.

                                          -2-
in case number 152062. This time Adams was convicted of infliction of corporal
injury upon a spouse, in violation of California Penal Code § 273.5(a). For this
conviction, Adams received a sentence of three years' felony probation, with
imposition of sentenced suspended, with a condition of probation of jail time of one
year to be served in the county jail, with credit for time served.

       On April 19, 2012, in a consolidated proceeding, Adams pleaded guilty to two
felony-in-possession charges arising from separate prosecutions in the Eastern
District of Arkansas and the Middle District of Florida. The plea agreement, signed
by Adams and his attorney, stated in relevant part that if the district court determined
that the ACCA applied, then the minimum term of Adam's imprisonment would be
15 years and:

      The parties agree that, at a minimum, the defendant was previously
      convicted of the following crimes punishable by a term of imprisonment
      exceeding one year: (1) in the Superior Court of California, Santa Clara
      County, for assault with a deadly weapon or force likely to produce
      great bodily injury, in criminal case 95134; (2) in the Superior Court of
      California, Santa Clara County, for assault with a deadly weapon or
      force likely to produce great bodily injury, in criminal case 121468; and
      (3) in the Superior Court of California, Santa Clara County, for inflicting
      corporal injury upon a spouse, in a criminal case 152062.

       For each California conviction, Adams received similar sentences of three
years' probation, with imposition of sentence suspended, with a condition of
probation of jail time of 365 days to be served in the county jail. The information
summary2 for case number 152062 referred to the convictions in case numbers
121468 and 95134 as felony convictions. At his change-of-plea hearing, Adams
admitted that each of these offenses was associated with a term of imprisonment

      2
       The information summary is produced by the Santa Clara district attorney and
includes a summary of the facts related to the charge as well as any prior felonies.

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greater than one year. The presentence investigation report (PSR) recommended a
base offense level of 14. The PSR added two offense levels under U.S.S.G.
§ 2K2.1(b)(1)(A) (2011) for possessing more than three but less than seven firearms,
added four offense levels under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm
in connection with another felony offense. Applying U.S.S.G. § 4B1.4(b)(3)(A), the
PSR established an offense level of 34 based on Adams's status as an armed career
criminal taking into account his three prior convictions for a violent felony or serious
drug offense, or both, which were committed on different occasions. The PSR
subtracted two levels based on U.S.S.G. § 3E1.1(a) for acceptance of responsibility,
resulting in a total offense level for Adams of 32. At the sentencing hearing, the
government moved for an additional one level-reduction for acceptance of
responsibility, which the court accepted, putting the total offense level at 31.

       Adams objected to the PSR designating him as an armed career criminal.
Adams did not dispute that his conviction for inflicting corporal injury upon a spouse
was a felony, he specifically objected to the classification of the two California
assault offenses as felonies under the ACCA. Adams argued that the two convictions
for assault with a deadly weapon in case numbers 95134 and 121468, both in
violation of California Penal Code § 245(a)(1), were "wobblers" and should have
been classified as misdemeanors. Specifically, Adams argued that in both of these
convictions, the state court sentenced him to one year in jail. According to Adams,
the convictions were for misdemeanors, not felonies, and he could not receive a
sentence of greater than one year.

        The district court disagreed with Adams and found that all of Adams's
California convictions were properly classified as felonies under the ACCA based on
United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992), abrogated in part on
other grounds by Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1020 (9th Cir. 2006).
The district court noted that the judge who sentenced Adams for his third offense,
inflicting corporal injury upon a spouse, treated his prior assault convictions as felony

                                          -4-
convictions. In sum, the district court found Adams to have three prior felony
convictions and thus to be an armed career criminal under 18 U.S.C. § 924(e). The
district court sentenced Adams to 180 months' imprisonment for both offenses to run
concurrently and five years of supervised release. Adams timely appealed the district
court's finding that he was an armed career criminal.

                                     II. Discussion
       Adams argues that his two prior "violent felony" convictions for assault with
a deadly weapon were actually misdemeanors under California law. Adams contends
that these offenses were "wobbler" offenses that could be felonies but which became
misdemeanors under California law when the state trial court imposed a sentence
other than incarceration in a state prison. Adams also argues that this court should
follow the rule of lenity by resolving any ambiguity regarding the application of the
ACCA in his favor. Adams asserts that since two of his prior convictions were
misdemeanors, he should not have been classified as an armed career criminal.

      "We review de novo a district court's determination that a defendant's prior
conviction constitutes a violent felony for purposes of § 924(e)." United States v.
Boaz, 558 F.3d 800, 806 (8th Cir. 2009) (citation omitted). Under 18 U.S.C.
§ 922(g)(1),

      [i]t shall be unlawful for any person . . . who has been convicted in any
      court of, a crime punishable by imprisonment for a term exceeding one
      year . . . to ship or transport in interstate or foreign commerce, or possess
      in or affecting commerce, any firearm or ammunition; or to receive any
      firearm or ammunition which has been shipped or transported in
      interstate or foreign commerce.

Any individual who violates § 922(g)(1) and who has three previous convictions for
a violent felony or a serious drug offense shall be "imprisoned not less than fifteen



                                          -5-
years." 18 U.S.C. § 924(e). Under 18 U.S.C. § 924(e)(2)(B), "the term 'violent felony'
means any crime punishable by imprisonment for a term exceeding one year."

       Adams's criminal record includes two violations of California Penal Code
§ 245. Each violation was punishable by "imprisonment in the state prison for two,
three, or four years, or in a county jail for not exceeding one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." Id.
§ 245(a)(1). "[A]n offense punishable either by imprisonment in the state prison or
by a county jail sentence is 'said to "wobble" between the two punishments and hence
is frequently called a "wobbler" offense.'" United States v. Viezcas-Soto, 562 F.3d
903, 906, n.2 (8th Cir. 2009) (quoting Robert L. v. Superior Court, 69 P.3d 951, 956
n.9 (2003)). Under California Penal Code § 17(b),

      [w]hen a crime is punishable, in the discretion of the court, either by
      imprisonment in the state prison or imprisonment in a county jail . . . it
      is a misdemeanor for all purposes under the following circumstances:

      (1) After a judgment imposing a punishment other than imprisonment in
      the state prison or imprisonment in a county jail under the provisions of
      subdivision (h) of Section 1170 [or]

                                        ***
      (3) When the court grants probation to a defendant without imposition
      of sentence and at the time of granting probation, or on application of
      the defendant or probation officer thereafter, the court declares the
      offense to be a misdemeanor.

(Emphases added.)

      "Under California law, where the offense is alternatively a felony or
misdemeanor it is regarded as a felony for every purpose until judgment." Robinson,
967 F.2d at 293. In Robinson, the Ninth Circuit held that where a court granted

                                         -6-
probation and suspended imposition of a sentence after conviction, imposed a nine
month jail term, never entering judgment and never declaring the offense to be a
misdemeanor, the prior conviction (battery on a police officer) was a felony and
California Penal Code §§ 17(b)(1) and (3) did not apply. Id. The Ninth Circuit found
that California Penal Code § 17(b)(1) did not apply because no judgment was
rendered and § 17(b)(3) did not apply because the convictions were never declared
to be misdemeanors. Id. The Ninth Circuit has also stated:

      Clearly, "[a]n order granting probation is not a judgment." People v.
      Smith, 195 Cal. App. 2d 735, 737, 16 Cal. Rptr. 12 (1961). Furthermore,
      when 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 conviction
      is rendered. People v. Arguello, 59 Cal. 2d 475, 476, 30 Cal. Rptr. 333,
      381 P.2d 5 (1963)."

Id.

       Adams's previous convictions for assault with a deadly weapon, case numbers
95134 and 121468, were punishable by imprisonment for greater than one year under
California Penal Code § 245. However, because violation of § 245 can result in
imprisonment in a state prison greater than a year or imprisonment in a county jail for
less than a year, the convictions "wobble" between a felony and a misdemeanor.
Adams's case resembles Robinson because both cases involve an order of probation
in addition to the suspension of the imposition of the sentence and one year or less
in county jail. Since the California court imposed probation for both of Adams's
convictions, these convictions did not result in a judgment under Robinson and thus
§ 17(b)(1) does not apply. See Robinson, 967 F.2d at 293. Additionally, although the
court granted probation, like in Robinson, it did not explicitly declare the assault
convictions to be misdemeanors. Section 17(b)(3) is thus inapplicable as well. See id.


                                         -7-
Applying Robinson to this appeal, Adams's convictions in case numbers 95134 and
121468 are felonies for sentencing purposes because, although each of the assault
offenses may wobble between a felony and a misdemeanor, neither conviction
resulted in a judgment and neither court declared the convictions to be misdemeanors.

       Adams contends that in Viezcas-Soto, this court agreed with his position that
California Penal Code § 17(b) renders a conviction a misdemeanor "'[a]fter a
judgment imposing a punishment other than imprisonment in the state prison.'" 562
F.3d at 907 (alteration in original) (quoting Cal. Penal Code § 17(b)(1)).
Imprisonment in a county jail, for instance, would not constitute a felony. Therefore,
Adams argues that because he received punishment other than imprisonment for his
convictions, the offenses could not be felonies under California law. Consequently,
according to Adams, the offenses were not predicate offenses under the ACCA.
Adams, however, misreads our precedent and the California statute. Viezcas-Soto
dealt with the question of whether the government had sufficiently proven that the
appellant's prior conviction qualified as a felony crime of violence for purposes of the
application of a Guidelines enhancement. Id. The record in Viezcas-Soto was unclear
as to how the California court put its sentence into effect. Id. The record in this case
has no such deficiency. This case is distinguishable from Viezcas-Soto because the
records clearly indicate that the California courts suspended the imposition of the
sentences. Suspended sentences do not represent judgments. See Robinson, 967 F.2d
at 293. In contrast, in Viezcas-Soto, the record was unclear whether there was a
suspension of the imposition or the execution of the sentence. 562 F.3d at 907–08.
In Viezcas-Soto, "we conclude[d] the government did not meet its burden of proving
the offense was a felony within the meaning of the relevant Guidelines section." Id.
at 905.

       Additionally, the present case is also distinguishable from United States v.
Bridgeforth, 441 F.3d 864, 871–72 (9th Cir. 2006). In that case, the Ninth Circuit
held that a prior conviction became a judgment when the court terminated probation

                                          -8-
and imposed a sentence of 365 days in county jail and thus was a misdemeanor under
§ 17(b)(1). Id. at 871–72. Here, the probation has not been terminated.

        Finally, Adams argues that the rule of lenity should apply in this case because
"[i]t is difficult to determine the effects of the California wobbler statutes on criminal
history in a federal case. The courts should resolve any inconsistencies in that
determination in favor of the Appellant, Mr. Adams." For authority, Adams cites only
to Viezcas-Soto's footnote 3, which does not address the rule of lenity. See 562 F.3d
at 908 n.3. Adams has thus cited no authority for his argument that lenity should
apply. We also do not find his reasoning persuasive given our analysis of California's
relevant statutes and cases interpreting them. "The simple existence of some statutory
ambiguity . . . is not sufficient to warrant application of [the rule of lenity], for most
statutes are ambiguous to some degree." Muscarello v. United States, 524 U.S. 125,
138–39 (1998). "To invoke the rule, we must conclude that there is a grievous
ambiguity or uncertainty in the statute." Id. (quotations and citations omitted). The
case contains no grievous ambiguity or uncertainty.

       Adams's two prior convictions for assault with a deadly weapon and a
conviction for infliction of corporal injury to a spouse are felonies. Therefore, the
district court properly classified Adams as an armed career criminal under § 924(e).

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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