                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                     April 30, 2010
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 09-4095
 v.                                                       (D. of Utah)
 CHAD JAY BUTLER,                             (D.C. No. 2:08-CR-00237-DAK-1)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH and HOLMES, Circuit Judges, and POLLAK **, District
Judge.


      Chad Jay Butler appeals from the district court’s denial of his motion to

dismiss the charge of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). 1 Butler’s motion was premised on the argument that the

guilty plea he entered to a state aggravated assault charge was not a “conviction”

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      **
          Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
      1
             Section 922(g)(1) makes it “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.”
under Utah law and hence that he was not a person “convicted” within the

meaning of § 922(g)(1). The district court denied this motion on the ground that

Utah law would equate a guilty plea or verdict to a conviction in this context. For

the reasons that follow, we agree with the district court that the Utah Supreme

Court would define “conviction” in this way for purposes of the federal felon-in-

possession statute.

                                  I. Background

      In February 2007, Butler pled guilty in a Utah state court to one count of

aggravated assault. He received leave to move to withdraw that plea in April

2007, but his motion was denied in December 2007. He was subsequently

sentenced for the assault in February 2008.

      On August 9, 2007, before Butler’s motion to withdraw the plea was

denied, he was arrested and charged with two federal crimes, including possessing

a firearm in violation of 18 U.S.C. § 922(g)(1). Butler then moved to dismiss the

§ 922(g)(1) charge, arguing that he had not yet been convicted of the state offense

in August 2007 because no judgment of sentence had issued. After the district

court denied Butler’s motion, he entered a conditional guilty plea pursuant to

Rule 11(a)(2) of the Federal Rules of Criminal Procedure 2 and reserved the right

      2
             Fed. R. Crim. P. 11(a)(2) provides that “[w]ith the consent of the
court and the government, a defendant may enter a conditional plea of guilty or
nolo contendere, reserving in writing the right to have an appellate court review
an adverse determination of a specific pre-trial motion. A defendant who prevails
                                                                      (continued...)

                                        -2-
to appeal the denial of the motion to dismiss. On May 13, 2009, the district court

sentenced Butler to 18 months in prison. We have jurisdiction over Butler’s

appeal pursuant to 28 U.S.C. § 1291.

                                   II. Analysis

      We exercise plenary review over the district court’s legal conclusion that

Butler’s guilty plea constitutes a conviction. United States v. Flower, 29 F.3d

530, 534 (10th Cir. 1994). Pursuant to 18 U.S.C. § 921(a)(20), “[w]hat

constitutes a conviction” for purposes of the felon-in-possession statute is

“determined in accordance with the law of the jurisdiction in which the

proceedings were held.” We accordingly turn to the meaning of “conviction”

under Utah law.

      Two competing definitions of conviction have been recognized in Utah –

“one which denotes the establishment of guilty ‘by verdict or plea,’ and one

which refers to ‘the final judgment entered on the plea or verdict.’” State v.

Hunt, 916 P.2d 311, 313 (Utah 1995) (quoting State v. Duncan, 812 P.2d 60, 62

(Utah Ct. App. 1991)). Although Butler urges us to determine what “conviction”

means in the abstract, the Utah Supreme Court has clearly held that which of the

two definitions governs in a particular case “turn[s] on ‘the context and the




      2
      (...continued)
on appeal may then withdraw the plea.”

                                         -3-
purpose within which the term “conviction” is used.’” Id. (quoting Duncan, 812

P.2d at 62).

      Although no Utah state court has construed “conviction” as used in §

922(g)(1), the state Court of Appeals has defined conviction for the purposes of

the parallel state felon-in-possession statute. In State v. In, 18 P.3d 500 (Utah Ct.

App. 2000), the defendant, like Butler, contended that he lacked the requisite

prior conviction to violate a felon-in-possession statute because “although he had

pleaded guilty to a prior felony at the time of th[e] offense, he had not been

sentenced on that prior felony.” Id. at 501. Concluding that “the purpose of” the

state felon-in-possession statute “is to restrict access of weapons to those who

could be dangerous to society,” the Court of Appeals rejected this argument and

held that, in context, “conviction” means “guilt by verdict or plea.” Id. at 502.

      Because In construes a state statute, not § 922(g)(1), and because it is not a

decision of the Utah Supreme Court, we are, of course, not bound by its holding

in construing Utah law. We also note that the reach of the Utah felon-in-

possession statute construed in In is broader than the scope of §922(g)(1): The

state statute prohibits the possession of firearms by individuals “under

indictment” as well as those “convicted of any felony offense.” Utah Code Ann.

§ 76-10-503(3)(a) (Supp. 1997).

      Nevertheless, as we are to be guided by the “the context and the purpose in

which the term ‘conviction’ is used,” Hunt, 916 P.2d at 313, we find In highly

                                          -4-
persuasive. Although it interprets a different statute, In’s context is otherwise

identical in all relevant aspects to the situation presented here. The purposes of

the Utah statute as enunciated by the In court and of § 922(g)(1) are also

indistinguishable: The federal statute, like the Utah statute, seeks “to keep guns

out of the hands of those who have demonstrated that they may not be trusted to

possess a firearm without becoming a threat to society.” Small v. United States,

544 U.S. 385, 393 (2005) (internal quotation marks omitted). Further, it is, of

course, the verdict or plea of guilty that serves as an indication of the threat with

which Congress was concerned, not a judgment of sentence. We therefore hold

that In’s equation of a conviction with a guilty verdict or plea extends, as a matter

of Utah law, to the context of § 922(g)(1). 3

      Butler attempts to distinguish In, chiefly on the basis of the fact that the

aggravated assault statute, unlike the statute providing the predicate offense in In,

does not contain the word “convicted.” That fact, however, is simply irrelevant:

The question is whether the word “conviction” in the federal felon-in-possession

statute should be construed in the same way as the word “convicted” in the state

felon-in-possession statute, without regard to the precise nature of the predicate

conviction. We therefore reject Butler’s argument. We have also reviewed all of

the other arguments Butler raises, and we find them similarly unpersuasive.


      3
             We also agree with the In court that its holding is consistent with
prior Utah cases. See In, 18 P.3d at 502-03.

                                          -5-
                                III. Conclusion

     The district court correctly concluded that Butler’s guilty plea was a

conviction under Utah law, and we accordingly AFFIRM.

                                                  Entered for the Court

                                                  Louis H. Pollak
                                                  District Judge




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