                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 2, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 10-6248
          v.                                            W.D. of Okla.
 JEREMY LEE HUTCHINSON,                        (D.C. No. 5:09-CR-00298-D-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, BRORBY, and TYMKOVICH, Circuit Judges.


      Jeremy Hutchinson was convicted of felon-in-possession charges under 18

U.S.C. § 922(g)(1). For the conviction to stand, the government must prove a

prior predicate state or federal felony conviction. Although he had previously

pleaded guilty to three state felony drug charges in Oklahoma, Hutchinson

claimed that since he received deferred sentences rather than jail time for the

guilty pleas, they do not count as felony convictions for purposes of § 922.

Accordingly, before trial he moved to dismiss the charges on the theory that the



      *
         This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
government could not prove the predicate felony. Because Hutchinson’s deferral

is controlled by 63 O KL . S T . A NN . § 2-410, which provides that a deferred

sentence is a conviction for purposes of criminal statutes, his argument lacks

merit.

         Exercising jurisdiction under 28 U.S.C. § 1291, we therefore AFFIRM the

district court’s order.

                                   I. Background

         Hutchinson pleaded guilty to three felonies in Oklahoma state court:

(1) possession of methamphetamine, (2) possession of marijuana with intent to

distribute, and (3) possession of a controlled substance without a tax stamp (a tax

evasion charge). Rather than enter a judgment of guilt, the court gave Hutchinson

a deferred sentence of five years for each count, to run consecutively.

         A deferred sentence under Oklahoma law allows the sentencing court to

defer final sentencing and entry of judgment while the defendant undergoes a

probationary period. Platt v. State, 188 P.3d 196, 197–98 (Okla. Crim. App.

2008). If the defendant successfully completes probation, the charges are

dismissed, and the court never makes a formal finding of guilt. Id. If, however,

the defendant violates the terms of the probation, the court “accelerates” the

deferral and enters a final judgment holding the defendant guilty. Id.

         In 2009, Hutchinson was charged by a federal grand jury with, among other

counts, possession of a firearm after having previously been convicted of a

                                          -2-
felony, in violation of 18 U.S.C. § 922(g)(1). Hutchinson sought an order to

dismiss the felon-in-possession charge on the theory that the government could

not show he had an applicable prior felony. He argued that none of the deferred

sentences he received in state court qualified as convictions.

      The district court rejected this argument, holding that two of the three state

court guilty pleas resulted in a conviction for purposes of § 922(g)(1). Following

the court’s denial of his motion to dismiss, Hutchinson entered a conditional plea

of guilty to the felon-in-possession charge, but he reserved the right to challenge

the court’s order on appeal.

      Hutchinson received a federal sentence of 6 months’ imprisonment for the

felon-in-possession charge, and a consecutive sentence of 60 months for

possessing a firearm in furtherance of a drug-trafficking crime—resulting in a

total sentence of 66 months. This sentence is separate from Hutchinson’s

deferred state sentences.

                                    II. Discussion

      Hutchinson challenges the denial of his motion to dismiss the felon-in-

possession charge. We review the denial of a pretrial motion to dismiss de novo.

United States v. Barrett, 496 F.3d 1079, 1117 (10th Cir. 2007). We review any

underlying factual determinations for clear error. United States v. Cordoba, 71

F.3d 1543, 1545 (10th Cir. 1995).




                                         -3-
      Hutchinson renews his claim that his state court deferred sentences are not

convictions for the purposes of the § 922(g)(1).

      The question of what constitutes a conviction within the meaning of

§ 922(g)(1) is controlled by the law of Oklahoma. 18 U.S.C. § 921(a)(20). Under

Oklahoma law, there are two provisions for sentence deferral. The first, 22 O KL .

S T . A NN . § 991c, was adopted in 1970. This statute grants a sentencing court

discretion to defer the sentence of any first-time criminal offender, with the

exception of sex offenders. Upon successful completion of the probationary

period, the offender’s record is expunged.

      A second provision, 63 O KL . S T . A NN . § 2-410, 1 passed in 1971, is a more

specific deferral provision. It is available only to first-time offenders who

“[pleaded] guilty to or [were] found guilty of possession of a controlled substance

. . . .” Upon successful completion of the probationary period, these offenders

also receive an expunged record, with the additional benefit that “[a]ny expunged

arrest or conviction shall not thereafter be regarded as an arrest or conviction for

purposes of employment, civil rights, or any statute, regulation, license,

questionnaire or any other public or private purpose.” § 2-410.

      Section 2-410 also differs from § 991c in another important respect: it

creates an exception to the guarantee of expungement. This exception states that

      1
          Both parties agree the relevant statute is the 2007 version of § 2-410,
which was in place at the time Hutchinson was sentenced. The current iteration
of this statute was adopted in 2010.

                                          -4-
a guilty plea “shall constitute a conviction of the offense for the purpose of this

act or any other criminal statute under which the existence of a prior conviction

is relevant.” Id. The policy behind § 2-410 creates incentives for meeting the

terms of probation:

      The intent is clear, a defendant can receive one deferred sentence for
      a drug offense and it will not impact that person’s ability to get a job,
      license, or even answer a questionnaire, but if that person commits
      another crime, they can be treated as a subsequent offender. The
      statute reflects the classic carrot and stick approach of providing an
      opportunity and inducement to become a productive, law abiding
      citizen, but if that opportunity is not taken then punishment can
      follow.

Platt, 188 P.3d at 201 (Lumpkin, J., concurring). Thus, under Oklahoma law a

deferred sentence pursuant to § 2-410 constitutes a conviction if a subsequent

conviction occurs during the probationary period. Id. at 199 (finding the

defendant was properly found guilty of being a felon in possession based on a

deferred sentence under § 2-410). But Oklahoma law is equally clear that a

deferred sentence under § 991c does not operate as a conviction. See United

States v. Stober, 604 F.2d 1274 (10th Cir. 1979).

      Hutchinson concedes that at least one of the state charges to which he

pleaded guilty in 2007, possession of methamphetamine, was eligible for deferral

under § 2-410. 2 He also acknowledges that his probationary period was not

      2
        The parties agree that the third count, possession of a controlled
substance without a tax stamp, is ineligible, as it is essentially a tax violation.
But they dispute whether the second count, possession of marijuana with intent to
                                                                          (continued...)

                                          -5-
complete at the time of the federal indictment. Thus, the sole question before us

is whether Hutchinson’s deferred sentence for the possession count took place

under § 2-410 or § 991c. If we find the deferral was under § 2-410, Hutchinson

has at least one prior conviction to support the federal charge for being a felon in

possession of a firearm.

      Hutchinson contends § 2-410 is unclear as to whether it applies as a matter

of law to first-time drug offenders, or whether the sentencing court has discretion

to impose a deferred sentence under either § 2-410 or the more general statute,

§ 991c. Because of this alleged ambiguity, and because it is not clear whether the

Oklahoma court intended the sentence to fall under § 2-410 or § 991c, Hutchinson

argues the rule of lenity dictates that we assume the sentence was deferred under

§ 991c.

      2
         (...continued)
distribute, comes within the purview of § 2-410. The language of § 2-410 gives
some support to Hutchinson’s position that it does not; by its own terms, § 2-410
applies to first-time drug offenders who “plead[] guilty to or [are] found guilty of
possession of a controlled dangerous substance under Section 2-402.” 63 O KL .
S T . A NN . § 2-410. But this argument appears to be foreclosed by a decision by
the Oklahoma Court of Criminal Appeals. In Watts v. State, 194 P.3d 133,
135–36 (Okla. Crim. App. 2008), the defendant argued that his prior deferred
sentence for possession of marijuana with intent to distribute did not constitute a
conviction. The court denied this claim, stating that “[§ 2-410] provides a
sentencing deferment procedure for first-time drug offenders,” and that the
defendant’s “guilty plea in [the] prior case is a ‘conviction’ according to the
language of section 2-410.” Id. at 135. Although the court in Watts did not
explain its conclusion that § 2-410 applied, the court found possession with the
intent to distribute to fall within the statute’s ambit. However, because
Hutchinson admits that at least one count, possession of methamphetamine, is
eligible for deferral under § 2-410, we need not resolve this issue.

                                         -6-
      Because we conclude § 2-410 unambiguously controls Hutchinson’s

deferred sentence for the possession charge, we cannot agree, and this argument

must fail.

      First, the plain language of § 2-410 suggests that it applies automatically to

deferrals for first-time drug offenders. The provision states, in relevant part:

      Whenever any person who has not previously been convicted of any
      offense under this act . . . pleads guilty to or is found guilty of
      possession of a controlled dangerous substance under Section 2-402,
      the court may, without entering a judgment of guilt and with the
      consent of such person, defer further proceedings and place him on
      probation upon such reasonable terms and conditions as it may
      require . . . .

§ 2-410 (emphasis added). The provision then goes on to list potentially

appropriate conditions of probation, restrictions on the use of the deferral, and the

conditions for record expungement. The term “whenever” means “at any or all

times” or “in any or every instance.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY , U NABRIDGED 2600 (2002). The use of this term indicates that the

provision always applies to the specified offenders, regardless of whether the

court chooses to exercise the discretion granted to defer the sentence or not.

      Principles of statutory construction lend support to this reading. “It is a

familiar rule of statutory interpretation that a specific provision will govern

notwithstanding the fact that a general provision, standing alone, may include the

same subject matter.” United States v. Prescon Corp., 695 F.2d 1236, 1243 (10th

Cir. 1982); see also King v. State, 182 P.3d 842, 844 (Okla. Crim. App. 2008) (“If

                                          -7-
the Legislature designs a statute for a specific situation, we should give effect to

that intent.”). It is undisputed that § 2-410 is a more specific statute than § 991c.

Section 991c, passed first, applies to all first-time offenders, and § 2-410 applies

only to a narrower subset of first-time drug offenders.

      This conclusion is also buttressed by the fact that no Oklahoma case turns

on the question of which deferral statute applies. Every case examining the

question has applied § 2-410 in drug cases to which it applies, without requiring

special notation by the sentencing court. See, e.g., Platt, 188 P.3d 196; Watts v.

State, 194 P.3d 133 (Okla. Crim. App. 2008); Hefner v. State, 542 P.2d 527, 531

(Okla. Crim. App. 1975) (suggesting that the deferred sentence for possession

would necessarily occur under § 2-410 if that deferral took place after the

provision was enacted).

      Hutchinson argues unpersuasively that “it makes no sense” that he could

have received a deferred sentence under § 2-410 for some counts and § 991c for

others. Aplt. Reply Br. at 14. But it appears the precise intent of the statutory

scheme was that the specified drug violations are treated differently. There is

nothing irrational in its decision to single out a particular category of offense,

especially drug possession, for special treatment. 3

      3
        Even if the statute were less clear, Hutchinson still could not prevail.
Given Hutchinson’s theory on appeal—that the government needed to prove
whether the state court employed § 2-410 or § 991c—a fact question existed as to
which applied. Under United States v. Pope, 613 F.3d 1255 (10th Cir. 2010), a
                                                                       (continued...)

                                          -8-
      Because we do not find the relevant statute ambiguous, we need not reach

Hutchinson’s argument regarding the rule of lenity. See United States v.

Metzener, 584 F.3d 928, 934–35 (10th Cir. 2009) (explaining the rule of lenity

instructs courts to interpret ambiguous criminal statutes in favor of defendants).

                                  III. Conclusion

      Since we conclude Hutchinson received a deferred sentence for possession

of methamphetamine under § 2-410, we find no error in the district court’s refusal

to dismiss his felon-in-possession charge. We therefore AFFIRM the order of the

district court. We deny the government’s motion to certify a question to the

Oklahoma Court of Criminal Appeals.




                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




      3
       (...continued)
motion to dismiss the indictment should be denied if a fact question remains for
trial.

                                         -9-
