                                                                      [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                APRIL 2, 2010
                                No. 09-10466
                                                                 JOHN LEY
                          ________________________
                                                                  CLERK

                      D. C. Docket No. 08-00028-CR-5-RS

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellant,

                                      versus

EULADIO SANTIAGO, JR.,

                                                              Defendant-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                                  (April 2, 2010)

Before CARNES, HULL and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

      This case presents the question of whether a guilty plea followed by a

sentence of probation and a withholding of adjudication qualifies under Florida law

as a predicate conviction for the purpose of enhancing a defendant’s sentence under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Defendant Euladio

Santiago, Jr. pleaded guilty to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). The government argued that Santiago had three

prior felony convictions, mandating an enhanced sentence under the ACCA. At

sentencing, the district court found that one of Santiago’s prior offenses was not a

predicate conviction for enhancing his sentence under the ACCA because Santiago

pleaded guilty to the offense, adjudication was withheld, and Santiago successfully

completed his sentence of probation before committing the instant offense.

      We hold that a guilty plea followed by a sentence of probation and a

withholding of adjudication qualifies under Florida law as a predicate conviction

for the purpose of enhancing a defendant’s sentence under the ACCA. Thus, the

district court erred in finding that Santiago did not have three qualifying

convictions under the ACCA.



                                          I.

      On October 6, 2008, Defendant Euladio Santiago, Jr. (“Santiago”) pleaded

guilty to possession with intent to distribute less than fifty kilograms of marijuana,

in violation of 21 U.S.C. § 841(b)(1)(D), and to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g). His Presentence Investigation

                                           2
Report (“PSR”) listed three prior felony drug offenses. On October 22, 2001,

Santiago was sentenced in the Orange County Circuit Court, Orlando, Florida, for

possession of cocaine with intent to sell or deliver. Santiago pleaded guilty to the

charge. The court withheld adjudication and sentenced Santiago to one day in jail,

with credit for one day of time served, and one year of probation, which Santiago

successfully completed. On August 29, 2005, Santiago was sentenced in the

Orange County Circuit Court, Orlando, Florida, for delivery of cocaine. Santiago

pleaded guilty to the charge, and the court adjudicated him guilty. On May 4,

2006, Santiago was sentenced in the Seminole County Circuit Court, Sanford,

Florida, for possession of cocaine with intent to sell or deliver. Santiago pleaded

guilty to the charge, and the court adjudicated him guilty.

       Based on those offenses, the PSR recommended that he be sentenced as an

armed career criminal, which carries a mandatory fifteen year minimum sentence,

pursuant to 18 U.S.C. § 924(e). Santiago objected, contending that the 2001

offense did not qualify as a prior conviction under the ACCA because he

completed his probation and was not adjudicated guilty by the sentencing court.1

The government countered that in light of this Court’s decisions in United States v.



       1
        Santiago concedes that the 2005 and 2006 offenses qualify as prior convictions for
purposes of the ACCA.

                                               3
Orellanes, 809 F.2d 1526 (11th Cir. 1987), United States v. Grinkiewicz, 873 F.2d

253 (11th Cir. 1989) (per curiam), and United States v. Chubbuck, 252 F.3d 1300

(11th Cir. 2001), Santiago’s guilty plea to the 2001 offense constituted a qualifying

conviction for ACCA purposes, even if he was never adjudicated guilty. The

district court found those cases were not controlling and held that the 2001 offense

did not constitute a qualifying conviction because adjudication was withheld and

Santiago completed his probation before he committed the instant offenses.

Therefore, the district court declined to sentence Santiago as an armed career

criminal, and instead imposed a sentence of 94 months’ imprisonment. The

government timely appealed.

                                               II.

       Questions of statutory interpretation are subject to de novo review. United

States v. Cobia, 41 F.3d 1473, 1475 (11th Cir. 1995).

       Ordinarily, a defendant convicted of being a felon in possession of a firearm

under 18 U.S.C. § 922(g)(1)2 is subject to a ten year maximum sentence. 18 U.S.C.

§ 924(a)(2). When such a defendant also “has three previous convictions . . . for a

violent felony or a serious drug offense . . . committed on occasions different from


       2
        Section 922(g)(1) prohibits the possession of a firearm by anyone “who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”
18 U.S.C. § 922(g)(1) (2000).

                                               4
one another,” the ACCA imposes a mandatory fifteen year minimum sentence. 18

U.S.C. § 924(e)(1) (2000). Whether an offense constitutes a violent felony or a

serious drug offense is a question of federal law.3 United States v. James, 430 F.3d

1150, 1154 (11th Cir. 2005). Federal law, however, does not control what

constitutes a conviction for purposes of the ACCA. Instead, “[w]hat 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).

       In prior cases, we have addressed the question of whether a guilty plea and a

withholding of adjudication constitutes a predicate conviction for a violation of 18

U.S.C. § 922(g). In United States v. Orellanes, 809 F.2d 1526, 1527 (11th Cir.

1987), the defendant Orellanes was charged with receipt of a firearm by a

convicted felon after purchasing firearms and ammunition on several occasions

between January 1982 and September 1985. His status as a convicted felon was

based on a negotiated guilty plea to two felonies in Florida state court in July 1981.

Id. Orellanes argued that because adjudication was withheld following his plea, he

was not a convicted felon for the purpose of the felon-in-possession charge. Id. at

1528. After consulting Florida law, we held that “‘the term “conviction” means


       3
         We note that Santiago does not dispute that the 2001 offense constitutes a “serious drug
offense” for purposes of the ACCA. Thus, the only question before us is whether his guilty plea
followed by a sentence of probation and a withholding of adjudication counts as a “conviction.”

                                                5
determination of guilty by verdict of the jury or by plea of guilty, and does not

require adjudication by the court.’” Id. (quoting State v. Gazda, 257 So. 2d 242,

243-44 (Fla. 1971)). In United States v. Grinkiewicz, 873 F.2d 253, 254 (11th Cir.

1989) (per curiam), the defendant also argued that because adjudication was

withheld on his prior felony offense in a Florida state court, he was not a convicted

felon for the purpose of a felon-in-possession charge under 18 U.S.C. § 922(g)(1).

In response to that argument, we reaffirmed our holding from Orellanes that under

Florida law a person is considered a convicted felon after a guilty plea and

withheld adjudication. Id. at 255. The question of whether a guilty plea and

withheld adjudication is a conviction for purposes of a felon-in-possession charge

came before us yet once more in United States v. Chubbuck, 252 F.3d 1300 (11th

Cir. 2001). There, we recognized the holdings of Orellanes and Grinkiewicz, id. at

1303; however, we also noted that our analysis in Orellanes may not have fully

accounted for the context specific nature of the term “conviction” under Florida

law, id. at 1304. Thus, we turned to Florida law surrounding Florida’s unlawful

possession of a firearm by a felon statute, Fla. Stat. Ann. § 790.23. Although the

case law raised some concern that “perhaps our interpretation of Florida law was

either in error or has since changed,” we found no definitive authority from the

Florida Supreme Court contradicting Orellanes or Grinkiewicz. Id. at 1305.

                                          6
Operating under plain error review, we held that the district court did not plainly

err when it accepted Chubbuck’s guilty plea to the felon-in-possession charge. Id.

at 1306.

       This case, however, does not present the question of whether Santiago was

“convicted” of the 2001 offense for the purpose of supporting a charge under 18

U.S.C. § 922(g)(1) – i.e., for the purpose of determining whether Santiago is a

convicted felon. Santiago concedes that his 2005 and 2006 convictions are

predicate convictions for a § 922(g)(1) violation, amply establishing Santiago’s

status as a convicted felon. Indeed, Santiago pleaded guilty to the instant charge

that he possessed a firearm in violation of 18 U.S.C. § 922(g), the felon-in-

possession statute. The question in this case is instead whether Santiago was

“convicted” of the 2001 offense such that his sentence must be enhanced under 18

U.S.C. § 924(e). Because Orellanes, Grinkiewicz, and Chubbuck did not address

the question of what constitutes a conviction for the purpose of enhancing a

sentence under the ACCA, those holdings do not control the question before us.4

Following the directive of § 921(a)(20), we therefore turn anew to Florida law.



       4
         Because in this case we do not face the issue in Orellanes, Grinkiewicz, and Chubbuck,
we need not address Santiago’s argument that more recent Florida cases have eroded the holding
of our cases concerning the precise contours of Florida law as to what constitutes a conviction for
purposes of establishing a person’s status as a convicted felon in the felon-in-possession statute.

                                                 7
      As we noted in Chubbuck, the definition of “conviction” under Florida law

is fluid and context specific. Chubbuck, 252 F.3d at 1304. See Raulerson v. State,

763 So. 2d 285, 291 (Fla. 2000) (per curiam) (“[T]he 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.” (quoting State v. Keirn, 720

So.2d 1085, 1086 (Fla. 4th DCA 1998))). Given that the definition of the term

“conviction” is context specific, we must initially determine the appropriate Florida

law context for this case. Because 18 U.S.C. § 924(e) is a sentence enhancement

provision, United States v. Sweeting, 933 F.2d 962, 967 (11th Cir. 1991), we

believe the appropriate source of law in this situation is Florida law concerning

sentencing enhancements for habitual felony offenders, Fla. Stat. Ann. § 775.084.

See United States v. Jefferson, 88 F.3d 240, 243-45 (3d Cir. 1996) (relying on

Pennsylvania and New Jersey law concerning sentencing enhancements when

determining definition of “conviction” for purpose of enhancing defendant’s

sentence under 18 U.S.C. § 924(e)); cf. Chubbuck, 252 F.3d at 1304 (suggesting

that law concerning Florida’s unlawful possession of a firearm by a felon statute is

appropriate source for definition of “conviction” for purpose of a violation of the

federal felon-in-possession statute, 18 U.S.C. § 922(g)(1)).

      Accordingly, we turn to Florida law concerning sentencing enhancements for

                                          8
habitual felony offenders. The Florida law in this regard is clear.

       For the purposes of this section,[5] the placing of a person on
       probation or community control without an adjudication of guilty
       shall be treated as a prior conviction.

Fla. Stat. Ann. § 775.084(2) (West 2005 & Supp. 2010). Thus, it is clear that, in

the appropriate context of Florida’s treatment of prior convictions for purposes of

enhancing the sentence of a violent career criminal or habitual felony offender,

Florida law would treat a prior guilty plea followed by a sentence of probation as a

prior conviction without regard to whether or not adjudication was withheld.

       In Franklin v. State, 887 So. 2d 1063, 1068 (Fla. 2004), the Florida Supreme

Court distinguished the current version of Fla. Stat. § 775.084 from the previous

version under which “an offense for which adjudication of guilt had been withheld

would not have qualified as a predicate for habitual offender sentencing unless the

subsequent offenses [sic] pending for sentencing was committed while the

offender was on probation or community control after the withhold of

adjudication.” The comparison drawn by the Florida Supreme Court reinforces

the plain meaning drawn from the text of the statute. The statute recognizes no

exception for the completion of probation before the commission of the offense for


       5
         Section 775.084 is titled: “Violent career criminals; habitual felony offenders and
habitual violent felony offenders; three-time violent felony offenders; definitions; procedure;
enhanced penalties or mandatory minimum prison terms.”

                                                 9
which the defendant is to be sentenced as an habitual felony offender. Indeed,

Santiago concedes that the 2001 offense would be counted as a conviction for

enhancement purposes under Florida law. Therefore, we now hold that a guilty

plea followed by a sentence of probation and a withholding of adjudication

constitutes a conviction under Florida law for the purpose of enhancing a

defendant’s sentence pursuant to 18 U.S.C. § 924(e), and that successful

completion of probation on the Florida offense for which adjudication was

withheld is immaterial to whether that offense can be used to enhance a

defendant’s sentence under the ACCA.

      Santiago makes an interesting, and superficially appealing, argument against

the foregoing interpretation. Santiago notes that 18 U.S.C. § 924(e)(1) provides:

“In the case of a person who violates § 922(g) of this title and has three previous

convictions by any court referred to in § 922(g)(1) for a violent felony or a serious

drug offense,” such person shall receive an enhanced sentence including a

mandatory minimum sentence of fifteen years. Santiago argues that the reference

to “convictions . . . referred to in § 922(g)(1)” incorporates the context of a §

922(g)(1) conviction – namely, a conviction that disqualifies a person from

possessing a firearm, and thereby makes it unlawful under § 922(g)(1) for such a




                                          10
person to possess a firearm. We reject Santiago’s interpretation.6

       We conclude that Santiago’s interpretation is strained. Section 924(e)

clearly constitutes an enhancement context. When § 924(e) uses the phrase

“previous convictions . . . referred to in § 922(g)(1),” we do not believe Congress

intended to incorporate peculiar state law in an entirely different context (i.e., the

different context of whether a prior conviction renders a person a felon for a felon-

in-possession offense). A more natural and reasonable reading of the statute

would interpret the phrase – “convictions . . . referred to in § 922(g)(1)” – as

incorporating merely the language of § 922(g)(1) – “convicted in any court, of a

crime punishable by imprisonment for a term exceeding one year” – which

language in turn incorporates the definition of those precise words as set out in §

921(a)(20). And, as noted above, § 921(a)(20) looks to the relevant state law to

determinate what constitutes a conviction, which state law, in the case of Florida,

varies with the context. Not only is this construction of § 924(e) more natural

grammatically, it comports with the common sense notion that the context of the

state law to which we look to ascertain the meaning of the “three previous


       6
         Santiago assumes that the phrase “referred to in § 922(g)(1)” refers to “convictions”
rather than to the immediately preceding term “by any court.” We need not decide that issue. If
the phrase modified “by any court,” Santiago’s argument could be rejected summarily. Thus, we
assume arguendo, only for discussion of Santiago’s argument, that the phrase “referred to in §
922(g)(1)” modifies the word “convictions.”

                                              11
convictions” in § 924(e) should match the context of § 924(e) itself – i.e., an

enhancement context. Accordingly, we reject Santiago’s preferred interpretation,

and hold that the relevant state law to which we should look for guidance in

determining what constitutes a conviction with respect to the 2001 prior Florida

guilty plea in this case is the Florida law in the enhancement context – i.e., the

Florida law concerning enhancement for habitual felony offenders. As noted

above, the Florida habitual felony offender laws clearly provide that placing a

person on probation without an adjudication of guilt shall be treated as a prior

conviction for purposes of enhancing the sentence of a habitual felony offender.

      Not only does our holding in this regard comport with common sense, it is

consistent with the only federal circuit court opinion to have addressed the issue.

In United States v. Jefferson, 88 F.3d 240 (3d Cir. 1996), the Third Circuit

construed 18 U.S.C. § 924(e) as we do today. The issue before the court was

whether a previous Pennsylvania guilty plea and a previous New Jersey guilty plea

constituted “convictions” for purposes of § 924(e) even though the charged

offense the sentence for which was being enhanced occurred before sentencing in

the two previous offenses. Although the determination of whether the prior

offense constituted a conviction differed depending upon the context, the Third

Circuit looked to the state law in the enhancement context to determine whether

                                          12
the previous guilty pleas constituted convictions for purposes of § 924(e). Id. at

243-44. With respect to both previous convictions, the state law in an

enhancement context would treat the guilty pleas as a conviction even though

sentencing had not yet occurred. Accordingly, the Third Circuit counted those

previous convictions and enhanced the sentence for the instant offense pursuant to

§ 924(e).7 Id. at 245.

                                                III.

       Looking to Florida law in the appropriate enhancement context, Santiago’s

guilty plea followed by a sentence of probation and a withholding of adjudication

on the 2001 Florida offense constitutes a conviction for the purpose of enhancing


       7
          We do not think United States v. Drayton, 113 F.3d 1191 (11th Cir. 1997) (per curiam),
indicates a different result. It is true that Drayton did involve the enhancement context – i.e., the
determination of whether a prior conviction qualified as a conviction for purposes of § 924(e). It
is also true that the opinion discussed United States v. Willis, 106 F.3d 966 (11th Cir. 1997). In
the context of determining whether Willis was a felon for purposes of § 922(g) (the federal felon-
in-possession statute), Willis held that a previous Florida plea of nolo contendere followed by a
withholding of adjudication was not a prior conviction rendering Willis a felon. Id. at 970. In
Drayton, the panel was addressing the defendant’s argument that Willis meant that Drayton’s
prior Florida nolo contendere pleas could not be counted as prior convictions. Drayton, 113 F.3d
at 1192. The panel distinguished Willis because Drayton’s nolo pleas had been followed by
adjudications of guilt. Id. at 1193. Thus “Willis [was] of no benefit to [Drayton].” Id. We
conclude that the panel in Drayton merely rejected Drayton’s argument based on Willis. The
panel did not discuss the fact that Willis was decided in the context of determining whether
Willis was a felon at all, and not in the different enhancement context of the Drayton case.
Apparently, no argument was made to the Drayton panel that the context might be significant, or
that the Florida law might vary with the context. We are satisfied that Drayton made no holding
that § 924(e) determinations should be guided by the Florida law as to what constitutes a
conviction for purposes of rendering a person a felon, rather than the more appropriate
enhancement context matching the enhancement context of § 924(e).

                                                 13
his sentence under the ACCA. Therefore, it was error for the district court not to

count Santiago’s 2001 offense as a qualifying conviction for the purpose of

enhancing his sentence pursuant to 18 U.S.C. § 924(e). The sentence imposed by

the district court is vacated, and the case remanded for sentencing consistent with

this opinion.

      VACATED AND REMANDED.




                                         14
