                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                           File Name: 06a0010p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                      X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                          Nos. 04-5834/6116
          v.
                                                       ,
                                                        >
 TIMOTHY MILLER,                                       -
                             Defendant-Appellant. -
                                                      N
                      Appeal from the United States District Court
                     for the Eastern District of Kentucky at London.
              Nos. 02-00073; 03-00046—Karen K. Caldwell, District Judge.
                                        Argued: October 31, 2005
                                 Decided and Filed: January 11, 2006
             Before: DAUGHTREY and COLE, Circuit Judges; BARZILAY, Judge.*
                                           _________________
                                                 COUNSEL
ARGUED: Michael J. Stengel, STENGEL LAW OFFICE, Memphis, Tennessee, for Appellant.
Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee. ON BRIEF: Michael J. Stengel, STENGEL LAW OFFICE, Memphis, Tennessee, for
Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee.
     DAUGHTREY, J., delivered the opinion of the court, in which COLE, J., joined.
BARZILAY, J. (pp. 5-6), delivered a separate dissenting opinion.
                                           _________________
                                               OPINION
                                           _________________
         MARTHA CRAIG DAUGHTREY, Circuit Judge. In this sentencing appeal, we are asked
to determine whether a sentence of probation under Georgia’s first-offender drug sentencing scheme
constitutes a “prior conviction for a felony drug offense [that] has become final,” as provided in 21
U.S.C. § 841(b)(1)(A). The district court held that defendant Miller’s Georgia conviction triggered
application of § 841(b)(1)(A), the effect of which was to double the mandatory minimum sentence
for his federal conviction under § 841(a) from ten years to 20 years. Miller appeals the sentencing

        *
          The Honorable Judith M. Barzilay, Judge for the United States Court of International Trade, sitting by
designation.


                                                       1
Nos. 04-5834/6116 United States v. Miller                                                                         Page 2


order, conceding that the “deferred adjudication of guilt” entered in the Georgia case was a “prior
conviction for a felony drug offense,” but contending that the Georgia conviction never      became
“final” and was therefore not properly considered in calculating his sentence in this case.1 Because
we find no error in the sentencing order, we affirm the district court’s judgment.
                            FACTUAL AND PROCEDURAL BACKGROUND
        Timothy Miller was initially indicted on one count of conspiracy to possess with intent to
distribute methamphetamine; four counts of possession with intent to distribute and distribution of
methamphetamine; one count of possession with intent to distribute and distribution of oxycodone;
and carrying a firearm during and in relation to a drug trafficking crime. That indictment also
included a forfeiture provision covering $1,418 in cash, a .32 caliber pistol, and a box of .32 caliber
ammunition. When Miller later failed to appear for trial, he was arrested and indicted for failure to
appear in violation of 18 U.S.C. § 3146(a)(1). He eventually pleaded guilty to all counts in both
indictments.
        Prior to sentencing on the drug-trafficking counts under 21 U.S.C. § 841(a), the government
filed notice pursuant to 21 U.S.C. § 851 of its intent to seek an enhanced punishment under 21
U.S.C. § 841(b)(1), which provides, in relevant part:
         [A]ny person who violates subsection (a) of this section shall be sentenced to a term
         of imprisonment which may not be less than 10 years or more than life. . . . If any
         person commits such a violation after a prior conviction for a felony drug offense has
         become final, such person shall be sentenced to a term of imprisonment which may
         not be less than 20 years and not more than life imprisonment . . . .
21 U.S.C. § 841(b)(1)(A). The § 851 notice established that the defendant had pleaded guilty to
possession of amphetamine in a Georgia state court in 1986 and was sentenced to two years
probation under the state’s first offender statute. According to a transcript of the sentencing hearing,
the state court judge explained the alternative sentencing scheme in this way:
         [T]echnically the Court would withhold adjudication of guilt which means
         technically I don’t impose a finding of guilt on you. I impose sentence but really - -
         it’s not like a judgment or a criminal judgment. That’s withheld. If you don’t get
         into any trouble and don’t violate the law or your probation for the next two years,
         then you won’t have any record. It will be just like you never had a record at all on
         this.
The defendant’s presentence report indicates that he was not convicted again until he was charged
with the offenses in this case.
       Given the defendant’s 1986 conviction, the district court felt constrained to impose the
mandatory minimum sentence of 20 years in prison required by statute, while at the same time
recognizing that the result seemed “particularly harsh” in terms of the passage of time since the prior
conviction and “in view of the language the [state] court used in sentencing this defendant, assuring
him that he would have no criminal record whatsoever.” Nevertheless, the court recognized that it

         1
           The dissenting judge on the panel concludes that Miller’s sentence should not have increased under the statute
because there was no prior “conviction” under Georgia law. However, Miller has conceded in his brief on appeal that
this issue is controlled by federal law, citing Deal v. United States, 508 U.S. 129 (1993), in which the Supreme Court
held that the term “‘conviction’ refers to the finding of guilt by a judge or jury that necessarily precedes the entry of a
final judgment of conviction.” Id. at 132. Thus, the question presented here is not whether Miller has a “prior
conviction” on his record for purposes of enhanced sentencing but whether that conviction ever became “final,” as
discussed in this opinion.
Nos. 04-5834/6116 United States v. Miller                                                                      Page 3


was “obligated to follow the law, whether we agree with it or not.” As a result, the defendant
received concurrent 240-month sentences on the drug-trafficking counts and a 60-month consecutive
sentence on the weapons count, for a total effective sentence of 300 months.
       The defendant now appeals the district court’s sentencing order with regard to his drug
convictions.
                                                  DISCUSSION
         The defendant claims that the district court erred in imposing a 20-year minimum sentence
on the basis of his 1986 conviction on the ground that, under the terms of the Georgia first offender
statute, it never became “final” as required by 28 U.S.C. § 841(b)(1). Contending that “there is a
distinction between a prior conviction and a prior conviction that has become final,” the defendant
points out that a formal judgment of conviction was never entered in the Georgia case and argues
from this fact that his prior conviction cannot be considered “final” for purposes of sentencing under
§ 841(b).
        This argument is not supported by either state or federal law. The Georgia penal code
contains a first-offender sentencing provision that permits a two-year probationary period in lieu of
incarceration. Successful completion of probation entitles a first-offender to “be discharged without
court adjudication of guilt” and, as a result, “the defendant shall not be considered to have a criminal
conviction.” GA. CODE ANN. § 42-8-62(a).2 For purposes of interpreting § 841(b)(1), however,
“‘the meaning of the phrase “[has] become final” is a question of federal law rather than state law.’”
United States v. Walker, 160 F.3d 1078, 1093 (6th Cir. 1998) (quoting United States v. Cisneros,
112 F.3d 1272, 1280 (5th Cir. 1997)). Moreover, we have joined other federal circuit courts in
adopting the standard for determining finality: a conviction becomes final for the purpose of
sentencing when the time for taking a direct appeal from the judgment of conviction has expired.
Walker, 160 F.3d at 1093. See also United States v. Lovell, 16 F.3d 494, 497 (2nd Cir. 1994)
(collecting cases from other circuits).
        Moreover, contrary to the defendant’s contention, his 1986 state conviction could and did
become final under Georgia state law. In 1985, the Georgia Court of Appeals ruled that “first
offender status takes the place of a ‘sentence’ and once imposed upon a criminal defendant, his case
assumes the mantle of finality necessary to bring a direct appeal of his conviction . . . .” Dean v.
State, 338 S.E.2d 711, 712 (Ga. Ct. App. 1985). Hence, Miller was entitled to appeal his conviction
as of the date of his sentence, February 12, 1986. See Ga. Code Ann. § 5-6-34. The time for doing
so expired 30 days later, on March 12, 1986. Ga. Code Ann. § 5-6-38. His conviction was certainly
“final” under the First Offender Act on that date, both under state law and for purposes of federal
sentencing. See United States v. Petros, 747 F.Supp. 368, 372 n.8 (E.D.Mich. 1990), cited with
approval in United States v. Hughes, 924 F.2d 1254 (6thCir. 1991); see also United States v. Smith,
897 F.2d 1168 (D.C. Cir. 1990) (this construction of finality applies equally to first offender
sentences of probation); United States v. Morales, 854 F.2d 65 (5th Cir. 1988) (same).
         It has long been recognized that alternative sentencing such as that utilized by Georgia in its
first-offender provision does not prevent the underlying offense from being treated as a prior

         2
          At the time of Miller’s state court conviction, the Georgia first offender statute provided as follows:
(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a
defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and
with the consent of the defendant:
                (1) Defer further proceeding and place the defendant on probation as provided by law; or
                (2) Sentence the defendant to a term of confinement as provided by law.
Ga. Code Ann. § 42-8-60 (1988).
Nos. 04-5834/6116 United States v. Miller                                                      Page 4


conviction for purposes of federal sentencing statutes. See, e.g., Dickerson v. New Banner Institute
Inc., 460 U.S. 103 (1983); United States v. Hagins, 267 F.3d 1202, 1208 (11th Cir. 2001); Cisneros,
112 F.3d at 1272, 1282. As the court noted in Petros, the policy behind state first-offender
provisions and similar alternative sentencing statutes is “to allow first offenders, who are often
youthful, an opportunity to straighten themselves out on the road of life without the baggage of a
drug conviction on their record” and is meant “as an incentive to learn a lesson . . . [but] is clearly
not meant to provide them with a technical legal advantage if, not having learned a lesson, they
continue their criminal conduct.” 747 F. Supp. at 376. In the wake of continued criminal conduct,
first-offender sentences are considered “prior offenses” under § 841 that become “final” at the point
at which they are no longer appealable.
                                          CONCLUSION
        For the reasons set out above, we conclude that the district court did not err in calculating
the defendant’s sentence in this case, and we therefore AFFIRM the judgment entered by the district
court.
Nos. 04-5834/6116 United States v. Miller                                                                       Page 5


                                               _________________
                                                   DISSENT
                                               _________________
        JUDITH M. BARZILAY, Judge. I respectfully dissent as I believe that the central issue in
this case is whether Miller’s 1986 guilty plea to narcotics possession in a Georgia court that resulted
in a two-year probation   under the state’s first offender act was a “conviction” under 21 U.S.C.
§ 841(b)(1)(A).1
        Section 841(b)(1) provides for sentence enhancement where the defendant commits the
federal violation “after a prior conviction for a felony drug offense has become final . . . .” 21
U.S.C. § 841(b)(1)(A) (emphasis added). Miller pleaded guilty to a violation of the Georgia
Controlled Substance Act in 1986 and was placed on two years of probation as a first time offender.
J.A. 159.
        Under federal law and the United States Constitution, a state’s interpretation of its laws must
be given full faith and credit. 28 U.S.C. § 1738 (“The Acts of the legislature of any State . . . . and
judicial proceedings of any court of any such State . . . . shall have the same full faith and credit in
every court within the United States and its Territories and Possessions as they have by law or usage
in the courts of such State, Territory or Possession from which they are taken.”) (emphasis added);
see U.S. CONST. art. IV, § 1. Thus, the Georgia State Supreme Court has ultimate say over the
meaning and effects of Georgia law. As the majority concedes, the Georgia first offender statute
provides that
         Upon fulfillment of the terms of probation, . . . the defendant shall be discharged
         without court adjudication of guilt. [This] discharge shall completely exonerate the
         defendant of any criminal purpose and shall not affect any of his or her civil rights
         or liberties; and the defendant shall not be considered to have a criminal conviction.
GA. CODE ANN. § 42-8-62(a) (emphasis added). According to the statutory text, a defendant, such
as Miller, who successfully completes his probation period will not have a criminal conviction on
his record. Underscoring this purpose, the Georgia Supreme Court likewise held that “[a]ny
probationary sentence entered under this Act is preliminary only, and, if completed without
violation, permits the offender complete rehabilitation without the stigma of a felony conviction.”
State v. Wiley, 233 Ga. 316, 317, 210 S.E.2d 790, 791 (1974), on remand 133 Ga. App. 712, 213
S.E.2d 15 (1975) (emphasis added); see Davis v. State, 269 Ga. 276, 496 S.E.2d 699 (1998)
(underlying humanitarian purpose of first offender statutes is to protect first offender from stigma
of having criminal record unless adjudication of guilt entered for crime for which defendant was
given first offender treatment); see also Jones v. State, 212 Ga. App. 682, 442 S.E.2d 880 (1994)
(prior first offender record may not be used to sentence defendant as recidivist for later crime if
conditions of probation under prior first offender treatment fulfilled and defendant discharged
without adjudication of guilt).
        In the case at bar, Miller completed his probation sentence, and there is no evidence that he
violated his probation or that his guilt was adjudicated. Under Georgia law, he therefore does not

         1
          Because determining whether a conviction exists is a question of law rather than fact, that Miller’s attorney
apparently conceded that Miller had a conviction can have no bearing on this Court’s decision. See McKoy v. North
Carolina, 494 U.S. 433, 445-46 (1990) (Blackmun, J., concurring); Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536,
544 n.8 (6th Cir. 2003) (“[B]ecause the parties have asked us to resolve legal questions on appeal, any concessions or
assumptions by the Defendants are of no consequence to our analysis.”). It is the role of the courts, not the parties, to
decide the law, and a court cannot simply acquiesce to an erroneous legal concession that then becomes precedent. Cf.
McKoy, 494 U.S. at 446 (Blackmun, J., concurring).
Nos. 04-5834/6116 United States v. Miller                                                                        Page 6


have a conviction for his violation of the Georgia Controlled Substance Act in 1986. Consequently,
Miller cannot qualify for a 21 U.S.C. § 841(b)(1) sentence enhancement without our completely
disregarding 28 U.S.C. § 1738.
        In addition, the case law the majority cites, which construes violations of first-time offender
statutes as “convictions” proves factually distinguishable from the instant case. In Dickerson v. New
Banner Inst., Inc., the Supreme Court ruled only on the meaning of “conviction” in the Gun Control
Act of 1968 and explicitly stated that “the terms ‘convicted’ or ‘conviction’ do not have     the same
meaning in every federal statute.” 460 U.S. 103, 112 n.6 (1983). In Dean v. State,2 the Georgia
Court of Appeals entered adjudication of guilt for the defendant because he violated the terms of his
probation–something Miller did not do. 177 Ga. App. 123, 123-24, 338 S.E.2d 711, 712 (1985).
Likewise, United States v. Petros concerned a defendant’s violation of federal law while on
probation stemming from first-time offender statute. 747 F. Supp. 368 (E.D. Mich. 1990). Given
the terms of the Georgia statute, which turns upon a defendant’s behavior during the probationary
period, these cases do not3 speak to the statute’s effect when a defendant successfully completes his
probation, as did Miller.
         Therefore, I would return this case to the district court for resentencing.




         2
          In Dean v. State, the Georgia Court of Appeals also focused on the interpretation of GA. CODE ANN. § 42-8-64,
which provides that “[a] defendant sentenced pursuant to this article shall have the right to appeal in the same manner
and with the same scope and same effect as if a judgment of conviction had been entered and appealed from.” GA. CODE
ANN. § 42-8-64 (emphasis added). The court lifted the term “conviction” from the statute, removed it from its context,
and then seemingly equated “conviction” with a “sentence.” Dean, 177 Ga. App. at 124, 338 S.E.2d at 712. This
ambiguous use of the term then found its way into the majority opinion.
         3
           It is important to note that the issue of whether Miller has a conviction involves an inquiry analytically
distinguishable from, for example, whether a state law crime labeled a misdemeanor under state law and a felony under
federal law constitutes a felony for federal law purposes. See, e.g., United States v. Rojas-Carillo, No. 04-1743 slip op.
at 6 (6th Cir. Nov. 17, 2005) (noting that Michigan designation of crime as “misdemeanor” does not preclude its
classification as “felony” under federal law). This latter scenario exemplifies the phenomenon of predication, where
“misdemeanor” and “felony” merely serve as descriptive labels of the undisputedly same criminal act. The case at hand,
however, brings into question the inherent nature, or identity, of the subject matter: Is the end result of the Georgia
statutory scheme in Miller’s case a conviction?
