                             UNITED STATES of America, Plaintiff-Appellee,

                                                       v.

                             Harry James CHUBBUCK, Defendant-Appellant.

                                                No. 99-12066.
                                       United States Court of Appeals,

                                               Eleventh Circuit.
                                                 June 1, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 98-08120-CR-WJZ),
William J. Zloch, Chief Judge.

Before EDMONDSON, WILSON and MAGILL*, Circuit Judges.

        WILSON, Circuit Judge:

        Appellant, Harry James Chubbuck, appeals his conviction under 18 U.S.C. §§ 922(g)(1), 924(a)(2),
felon in possession of a firearm. He alleges that at the time of his arrest, he was not a felon under Florida law

and as such could not be guilty of the offense. As there is no clear Florida state court precedent on the issue
and Eleventh Circuit precedent holds otherwise, we affirm Chubbuck's conviction because no plain error can
be established.

                                               BACKGROUND
        Harry James Chubbuck ("Chubbuck") was arrested and charged in December of 1994 of one count
of trafficking in cocaine and five counts of possession of various narcotic substances. He pled guilty in the

Circuit Court for the Fifteenth Judicial Circuit of Florida to the lesser included offense of possession of

cocaine with intent to sell in March of 1996. See Fla. Stat. Ann. § 817.563, amended by 2000 Fla. Sess. Law

Serv. 00-320 (C.S.H.B.2085) (West). The court withheld Chubbuck's adjudication and sentenced him to three
years probation with the condition that he refrain from possessing firearms while on probation.

        On March 25, 1998, police arrested Chubbuck for driving a stolen car and possession of firearms

found in the trunk. He was charged in federal court with being a felon in possession of a firearm.1 The

charge of grand theft auto was nolle prossed. The state of Florida chose not to prosecute for this incident.

         On July 2, 1998, the state of Florida revoked Chubbuck's probation based on his violation of the


    *
     Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
    1
     The weapons found in Chubbuck's possession were manufactured out-of-state and thus were subject
to federal instead of state penalties. See 18 U.S.C. § 922.
state's prohibition on firearm possession while serving probation, adjudicated him guilty of the underlying

cocaine trafficking offense, and sentenced him to 60 days in jail.2

        A little over a month later, on August 27, 1998, a grand jury indicted Chubbuck for violating 18

U.S.C. §§ 922(g)(1), 924(a)(2), felon in possession of a firearm. In April of 1999, Chubbuck pled guilty to
the charge.3

        After sentencing, Chubbuck again voiced concerns to the district court regarding his lack of

understanding of the charges against him and his belief that he had received ineffective assistance of counsel.
While he was not specific about the claims of ineffective assistance, Chubbuck did indicate unease about his

status as a convicted felon. Chubbuck asked to withdraw his plea but the judge denied his request stating that

Chubbuck had been fully advised of his rights during the plea colloquy and indicated that he understood the
charges against him.

        Chubbuck presented an array of motions in forma pauperis in an attempt to have the charges against

him reduced or dropped. The judge denied them all and appointed a public defender to represent him on

appeal of his sentencing issues. Chubbuck's new counsel raises for the first time on appeal the issue of
whether Chubbuck was in fact a felon when the charge of felon in possession of a firearm was brought.
                                           STANDARD OF REVIEW

         A defendant who failed to object to the Rule 11 colloquy or move to withdraw his plea prior to

sentencing, must show plain error on appeal.4 See United States v. Mosley, 173 F.3d 1318, 1322 (11th

Cir.1999); United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996) (per curiam). Plain error is clear or

obvious and affects those substantial rights that call into question the " 'fairness, integrity, or public reputation

of judicial proceedings....' " United States v. Hernandez, 896 F.2d 513, 523 (11th Cir.1990) (quoting United

States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Appellant, Chubbuck, bears the


    2
    Under Florida law once probation is revoked and the sentence is adjudicated, it is clearly a
"conviction" as defined by statute. See United States v. Willis, 106 F.3d 966, 968-69 (11th Cir.1997);
Garron, 528 So.2d 353, 360 (Fla.1988)(per curiam); Batchelor v. State, 729 So.2d 956, 958 (Fla. 1st
DCA 1999). As a result, had the offense occurred after this date, there would be no question as to
Chubbuck's status as a felon at the time he possessed the firearms.
    3
      There is some indication in the record that while Chubbuck's counsel at the arraignment had some
questions about whether Chubbuck was in fact a convict at the time of the incident, subsequent counsel
that saw him through the plea colloquy never raised the same concern.
    4
     While a review of the record indicates that Chubbuck expressed some reservations about his status as
a convicted felon, we cannot say that any of his comments rose to the level of an objection.
burden of persuasion. See Quinones, 97 F.3d at 475.

                                                DISCUSSION

         It is a long standing principle that defendants may plead guilty and be held accountable for crimes

that they did not commit or for which the evidence is insufficient to support. See Brady v. United States, 397

U.S. 742, 756, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); United States v. Helmich, 704 F.2d 547, 550 (11th

Cir.1983). After weighing his options, a defendant may for one reason or the other find it advantageous to
plead guilty despite potential gaps in the government's ability to present evidence. Therefore in analyzing

a guilty plea, the real question in this case is whether the plea was made voluntarily, knowingly, and

intelligently. See McCarthy v. United States, 394 U.S. 459, 462-63, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969);

Mosley, 173 F.3d at 1322.

         Chubbuck contends that even if the rest of the colloquy was conducted according to the letter of the

law, the fact that Chubbuck was not informed that state law is controlling as to the meaning of conviction is

a mistake that nullifies the colloquy. See e.g., United States v. Telemaque, 244 F.3d 1247 (11th Cir.2001)(per

curiam) (holding that a district court commits prejudicial plain error when it fails to adequately inform a

defendant of the nature of the offense); Mosley, 173 F.3d at 1323 (discussing that complex charges must be

explained to the fullest extent possible); United States v. Wiggins, 131 F.3d 1440, 1442-43 (11th

Cir.1997)(per curiam) (stating that there is no uniform method to explain charges to a defendant that are
heavily fact dependent). He advances that the charges against him were so complex, that it required an

explanation that state law controlled and perhaps an indication of what the law held with regards to his status.
Unfortunately for him, it has been stated several times that "[t]he crime of being a felon in possession of a

firearm is easily understood." United States v. Jones, 143 F.3d 1417, 1419 (11th Cir.1998)(per curiam).

        18 U.S.C. § 922(g)(1) states that "[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...." "What constitutes
a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the

proceedings were held." 18 U.S.C. § 921(a)(20).

        Chubbuck alleges that because he was on probation with adjudication withheld at the time he
possessed the firearms, he was not a convicted felon and cannot be guilty of being a felon in possession of

a firearm. His argument rests on his belief that a withheld adjudication is not a conviction under Florida law.
         Eleventh Circuit precedent holds otherwise. We have twice held that a plea of guilty in Florida state

court, even where adjudication has been withheld, is a conviction for purposes of 18 U.S.C. § 922(g). See

United States v. Orellanes, 809 F.2d 1526, 1527 (11th Cir.1987); United States v. Grinkiewicz, 873 F.2d 253,

255 (11th Cir.1989) (per curiam). The only change to this line of cases has been that a plea of nolo

contendere will not amount to a confession of guilt necessary to establish prior conviction. See United States

v. Willis, 106 F.3d 966, 968-69 (11th Cir.1997), but see United States v. Drayton, 113 F.3d 1191, 1193 (11th

Cir.1997) (per curiam) (holding that a plea of nolo contendere where an adjudication is not withheld is a

conviction under Florida law).

        Our previous interpretations of Florida law were based on a series of cases that conclude that a

conviction requires either an adjudication of guilt or a plea of guilty. See State v. Gazda, 257 So.2d 242, 243-

44 (Fla.1971) (stating that "for purposes of construing § 775.14, ... the term 'conviction' means determination

of guilty by verdict of the jury or by plea of guilty, and does not require adjudication by the court"); Garron

v. State, 528 So.2d 353, 360 (Fla.1988) (per curiam) ("[T]he plea of guilty is an absolute condition precedent

before the lack of adjudication can be considered a conviction"); Burkett v. State, 518 So.2d 1363 (Fla. 1st

DCA 1988) (holding that adjudication of guilt is a conviction for purposes of the state felon in possession of

a firearm statute regardless of appeal status); but see Snyder v. State, 650 So.2d 1024 (Fla. 2d DCA 1995)

(holding that while awaiting appeal of an adjudicated sentence, a defendant is not considered "convicted" for

purposes of section 790.23 (felon in possession of firearm)). Therefore, based on our past interpretation of

Florida law, Chubbuck is guilty of the offense as charged.
        However, Chubbuck points to a series of Florida district court cases and one supreme court case

which raise doubt as to our interpretation. His argument is that the meaning of "conviction" under Florida

law is context specific and thus requires us to look at the predicate statutory offense language. See Raulerson

v. State, 763 So.2d 285, 291 (Fla.2000) (per curiam) ("the term 'conviction' as used in Florida law has been

a 'chameleon-like' term that has drawn its meaning from the particular statutory context in which the term is

used"); State v. Keirn, 720 So.2d 1085, 1087 (Fla. 4th DCA 1998), approved by, 763 So.2d 285 (Fla.2000)

("the term 'conviction' requires a close examination of its statutory context and legislative history and

development"); State v. Finelli, 744 So.2d 1053, 1054 (Fla. 4th DCA 1999) (per curiam) (stating that the

term "conviction" has varied meanings "depending on the specific statute in which the word appears"),
vacated by, 780 So.2d 31 (Fla. 2001) (affirming nonetheless the context specific nature of the term).5

        Furthermore, our opinion in Orellanes, one of only two on point cases in this Circuit, was based on

State v. Gazda, a Florida Supreme Court decision relying on a completely different statute. In Gazda, a

defendant's adjudication was withheld until he could complete treatment at a tuberculosis hospital. The

defendant failed to return to the court for sentencing, thus raising the question of whether a sentence was valid

for purposes of Florida's Limitation On Withheld Sentences Statute. See Gazda, 257 So.2d at 244. This

Court in Orellanes stated no reason for basing its opinion on Gazda but simply held that " 'the term

"conviction" means determination of 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 (quoting Gazda, 257 So.2d at 243-44). Likewise,

Grinkiewicz merely relied on Orellanes on this matter without offering any new analysis. Grinkiewicz, 873

F.2d at 255. As Chubbuck has presented strong evidence that the definition of "conviction" is fluid and we
see no reason to disagree on this matter, we will proceed with a context-specific analysis.
        Viewing the term "conviction" as 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.

Ann. § 790.23. The case law in this area is limited but varied. Burkett held that "a defendant is convicted,

for purposes of [section 790.23] when he is adjudicated guilty in the trial court." 518 So.2d at 1366 (referring
to whether a pending appeal creates doubt as to whether he was convicted at trial). However, in two cases
where defendants were awaiting appeal at the time of their section 790.23 violation, the courts chose to

construe the meaning of conviction in the manner most favorable to the defendants, thus holding that the two

were not "convicted" until disposition on appeal. See Johnson v. State, 664 So.2d 986, 987-88 (Fla. 4th DCA

1995); Snyder, 650 So.2d at 1025. Paralleling more closely the case at hand is Castillo v. State, in which the

Third District of Appeals for Florida concluded:

        While the defendant in this case had a prior criminal record, the prior proceedings had resulted in the
        withholding of adjudication. For purposes of [section 790.23], we construe "conviction" to mean an
        adjudication of guilt. Where adjudication has been withheld, the offender is not a convicted felon.
590 So.2d 458, 461 (Fla. 3d DCA 1991) (per curiam) (citations omitted).6 An exhaustive search of the

    5
    At least one federal district court has also recognized the malleable definition of the term
"conviction" under Florida law. See United States v. Thompson, 756 F.Supp. 1492, 1493 (N.D.Fla.1991).

    6
    One court in analyzing a similar case stated that neither Grinkiewicz or Orellanes was controlling
because they were based on a misinterpretation of Florida law. See United States v. Santini, N.D. Ill,
1992 (No. 88 CR 20028, June 15, 1992) (unpublished). In another case also based on a violation of the
Florida Supreme Court records has yielded no definitive statement on this issue.

            As supplemental authority, Chubbuck does offer one case that strengthens his claim. A recent Florida

Supreme Court case discussed as a matter of first-impression whether a withheld adjudication constitutes a

conviction for purposes of impeachment. See State v. McFadden, 772 So.2d 1209 (Fla.2000). The court in

McFadden adopted "a definition of 'conviction' that requires an adjudication of guilt or judgment of

conviction by the trial court."       Id. at 1216.    While recognizing that the term "conviction" is still

"chameleon-like" in nature and context specific, the court implicitly reaffirmed the holding of State v. Snyder,

which stated that for purposes of the felon in possession of a firearm statute, a defendant must actually be

adjudicated guilty to be a "convicted felon". See McFadden, 772 So.2d at 1215 n. 5; Snyder, 673 So.2d at

10.       McFadden's holding together with the aforementioned cases further cast doubt on our prior

interpretations of Florida law.

            The precedent that we have established on this issue has always sought the interpretation of Florida
law in construing what a conviction is for purposes of 18 U.S.C. §§ 922(g)(1), 924(a)(2). We do not and
cannot overrule that precedent here. Nonetheless, in order to remain faithful to those decisions, we must

continually seek to apply, as both the statute and case law require, the relevant state law interpretation. It has
become increasingly clear that perhaps our interpretation of Florida law was either in error or has since

changed, but given defendant's failure to object and without any definitive authority from the Florida Supreme
Court that contradicts our precedent, we decline to, and in fact cannot,7 find that the district court committed


Federal Firearms Statute, the court observed that:
                    [There] appears to be a common perception among persons involved in the Florida
                    criminal justice system that a defendant, for whom adjudication is withheld, has not been
                    "convicted" under Florida law. Probation officers of this court, having served as Florida
                    probation officers before joining the federal system, have confirmed that defendants in
                    Florida are routinely advised by practicing criminal defense lawyers, by state probation
                    officers, by state prosecutors, and by judges, that when adjudication is withheld, they are
                    not "convicted" and accordingly do not lose their civil rights.

            United States v. Lester, 785 F.Supp. 976, 978 (S.D.Fla.1991)(quoting United States v. Thompson,
            756 F.Supp. 1492, 1496 (N.D.Fla.1991)).
      7
      "Under our prior precedent rule, a panel cannot overrule a prior one's holding even though convinced
it is wrong". United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc). "[W]e are not at
liberty to disregard binding case law that is so closely on point and has been only weakened, rather than
directly overruled, by the Supreme Court." Fla. League of Professional Lobbyists v. Meggs, 87 F.3d 457,
462 (11th Cir.1996). However, 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.
See Gulf Power Co. v. FCC, 226 F.3d 1220, 1224 (11th Cir.2000); Venn v. St. Paul Fire & Marine Ins.
Co., 99 F.3d 1058, 1066 (11th Cir.1996); Hattaway v. McMillian, 903 F.2d 1440, 1445 n. 5 (11th
plain error.

                                              CONCLUSION

        Because no definitive case law exists on whether a guilty plea with adjudication withheld constitutes
a conviction under Florida law, we find that the district court did not plainly error in accepting Chubbuck's

guilty plea to the crime of being a felon in possession of a firearm.

        AFFIRMED.

        EDMONDSON, Circuit Judge, concurring:
        I concur in the result.




Cir.1990).
