           Case: 12-14085   Date Filed: 03/28/2013   Page: 1 of 4




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14085
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-20041-JAL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JOSE SANTOS LOPEZ HERNANDEZ,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (March 28, 2013)

Before BARKETT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
               Case: 12-14085     Date Filed: 03/28/2013    Page: 2 of 4


      Jose Santos Lopez Hernandez appeals his conviction for possession of a

firearm and ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, Lopez Hernandez argues that his guilty plea to a Florida

state felony offense followed by a withholding of adjudication was not a

“conviction” for purposes of 18 U.S.C. § 922(g).

      Under the prior precedent rule, a panel of this Court is bound to follow a

prior binding precedent unless and until it is overruled by this Court sitting en banc

or by the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236

(11th Cir. 2008). However, when the prior decision involves interpretations of

state law, if the applicable state law “changes or is clarified in a way that is

inconsistent with the state law premise of one of our earlier decisions, the prior

panel precedent rule does not bind us to follow our earlier decision.” United States

v. Johnson, 528 F.3d 1318, 1320 (11th Cir. 2008), rev’d on other grounds, 559

U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). We have “categorically rejected

an overlooked reason or argument exception to the prior precedent rule.” Id.

      We first addressed the question of whether a guilty plea to a Florida state

felony offense and a withholding of adjudication constitutes a predicate conviction

under § 922(g) in United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987).

Relying on the Florida Supreme Court’s opinion in State v. Gazda, 257 So.2d 242,

243-33 (Fla. 1971), we held that “the term ‘conviction’ means determination of


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guilty by verdict of the jury or by plea of guilty, and does not require adjudication

by the court.” Orellanes, 809 F.2d at 1528. Two years later, relying on Orellanes,

we reaffirmed that “under Florida law a person is considered a convicted felon

when there has been a withholding of adjudication of guilt.” United States v.

Grinkiewicz, 873 F.2d 253, 255 (11th Cir. 1989).

      We revisited the issue in 2001, and, operating under plain error review, held

that the district court did not plainly err when it accepted the defendant’s guilty

plea to the felon-in-possession charge. United States v. Chubbuck, 252 F.3d 1300,

1306 (11th Cir. 2001). In Chubbuck, we recognized the holdings of Orellanes and

Grinkiewicz, but noted that the analysis in Orellanes may not have fully accounted

for the context-specific nature of the term “conviction” under Florida law. Id. at

1304. While Orellanes and Grinkiewicz relied on a Florida Supreme Court

decision defining the term “conviction” with regard to Florida’s Limitation On

Withheld Sentences Statute, because the term is context-specific, “the more

appropriate source of applicable Florida law would be that surrounding Florida’s

own unlawful possession of firearms by a felon statute, FLA. STAT. § 790.23.” Id.

However, we determined that the case law in the area was limited but varied, and

there was no definitive statement from the Florida Supreme Court on the issue. Id.

at 1304-05. Accordingly, we concluded that, although it had “become increasingly

clear that perhaps our interpretation of Florida law was either in error or has since


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changed,” because there was no definitive authority from the Florida Supreme

Court that contradicted our precedent, the district court did not commit plain error

in accepting Chubbuck’s guilty plea. Id. at 1305. We noted, however, that “the

prior precedent rule would not apply if intervening on-point case law from either

this Court en banc, the United States Supreme Court, or the Florida Supreme Court

existed.” Id. at 1305 n.7.

      Here, the district court did not err because the law of this Circuit, as stated in

Orellanes, Grinkiewicz, and Chubbuck, is that Lopez Hernandez’s guilty plea to a

Florida felony offense followed by a withheld adjudication qualifies as a

“conviction” for purposes of 18 U.S.C. § 922(g). Because there no intervening,

on-point case law from the Florida Supreme Court, this Court en banc, or the

Supreme Court, the district court’s conclusion was compelled by the prior

precedent rule.


      AFFIRMED.




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