                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4394


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

TYRIUS EUGENE SMITH,

                   Defendant - Appellant.



United States District Court for the Western District of North Carolina, at Asheville.
Martin K. Reidinger, District Judge. (1:17-cr-00098-MR-DLH-1)


Argued: May 8, 2019                                      Decided: September 27, 2019


Before MOTZ, WYNN, and RICHARDSON, Circuit Judges.


Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Motz
and Judge Wynn joined.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
RICHARDSON, Circuit Judge:

       Tyrius Smith was convicted of being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g). While there is no doubt that he possessed a firearm, we must decide

whether he was a felon under federal law. Answering that question is surprisingly difficult.

Federal law treats someone as a felon if “convicted” of a crime punishable by more than

one year in prison. 18 U.S.C. § 922(g)(1). But what exactly counts as a “conviction”? In

some cases the answer seems easy—for example, where a federal judge imposes a sentence

after a jury has found the defendant guilty. In other cases it is hard; this is one of them.

Smith’s only alleged conviction is a North Carolina larceny offense where the state-court

judge imposed a “conditional discharge,” as provided for by state statute, after a plea. So

we must determine whether a conditional-discharge plea is a “conviction.” And by statute,

we must follow North Carolina law in making that determination. 18 U.S.C. § 921(a)(20).

       The district court found that, under North Carolina law, a plea of guilty followed by

conditional-discharge probation is a conviction. We disagree and conclude that the North

Carolina Supreme Court, if faced with the question before us, would hold that a

conditional-discharge plea is not a conviction for purposes of §§ 921 and 922. So Smith

was not a felon, and his federal felon-in-possession conviction must be reversed.

                                             I.

       In 2016, Smith pleaded guilty to Larceny by Employee, N.C. Gen. Stat. § 14-74, a

state-law felony punishable by imprisonment for between four and twenty-five months, id.

at § 15A-1340.17. The judge, under statutory authority and with the consent of the

prosecutor, imposed a “conditional discharge.” This meant that “without entering a

                                             2
judgment of guilt,” the court “defer[ed] further proceedings and place[d] the person on

probation . . . for the purpose of allowing the defendant to demonstrate the defendant’s

good conduct.” Id. at § 15A-1341(a4). If Smith fulfilled the probation conditions imposed,

then “any plea or finding of guilty previously entered shall be withdrawn and the court

shall discharge the person and dismiss the proceedings against the person.” Id. at § 15A-

1341(a6).   But if Smith were to violate a condition, then “the court may enter an

adjudication of guilt” and go on to impose a sentence. Id.

       While serving his conditional-discharge probation, Smith was caught with pistols

twice. His firearm possession violated the terms of his state probation. But before the state

court resolved this violation, a federal grand jury indicted Smith for being a felon in

possession of a firearm. Smith agreed to a bench trial and was found guilty. The federal

court sentenced him to time served and three years of supervised release.

       Smith appeals his federal conviction, and we have jurisdiction to review it under 28

U.S.C. § 1291. He argues that his federal conviction is invalid because he had no prior

convictions prohibiting his possession of the firearms. The Government relies on Smith’s

2016 conditional-discharge plea, which Smith argues did not constitute a conviction.

                                             II.

       Federal law generally prohibits the possession of a firearm by any person “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). To be guilty of this offense, the individual must

knowingly possess a firearm and know that he had been “convicted” of such an offense

when he possessed it. Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019).

                                             3
       A disqualifying conviction may be either a federal or state conviction. What

constitutes a “conviction” “shall be determined in accordance with the law of the

jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). So, for a state-

law criminal offense, the law of the prosecuting jurisdiction determines whether something

counts as a conviction. Beecham v. United States, 511 U.S. 368, 371 (1994); United States

v. Walters, 359 F.3d 340, 344 (4th Cir. 2004). 1

       Smith’s larceny proceedings were held in North Carolina. We must thus determine

how North Carolina’s Supreme Court would decide whether an individual on conditional-

discharge probation had a “conviction” under the federal felon-in-possession prohibition.

As North Carolina has not been called to decide this state-law question in the context of

this federal criminal statute, we look at various sources of North Carolina law for evidence

of how the North Carolina Supreme Court would rule.

       North Carolina law lacks a single, general-use definition of conviction. Instead, the

applicable definition in North Carolina depends on the context. See State v. Bandy, 189

S.E.2d 773, 774 (N.C. Ct. App. 1972) (“[T]he word ‘conviction’ may mean a verdict or

may refer to a verdict upon which judgment has been entered depending upon the context



       1
        In Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111–12 (1983), the
Supreme Court had held that what constituted a conviction for federal gun control statutes
was a question of federal, not state, law. Three years later, Congress amended § 921(a)(20)
to make state law controlling. See Firearm Owners’ Protection Act, Pub. L. 99–308,
§ 101(5), 100 Stat. 449 (1986) (currently codified at 18 U.S.C. § 921); see also Logan v.
United States, 552 U.S. 23, 27–28 (2007) (noting that Congress acted “in response to
Dickerson’s holding that, for purpose of federal firearm disabilities, state law did not
determine the present impact of a prior conviction”).

                                             4
in which it is used.”); cf. Turlington v. McLeod, 374 S.E.2d 394, 398 (N.C. 1988) (noting

that interpreting a statutory term requires considering the differing contexts in which it is

used).

         We begin by looking at how conviction is defined in the most analogous context:

North Carolina’s own felon-in-possession statute, N.C. Gen. Stat. § 14-415.1. To be clear,

whether North Carolina’s felon-in-possession statute prohibited Smith from possessing a

firearm does not control our inquiry. See United States v. Walters, 359 F.3d 340, 345 (4th

Cir. 2004) (“Nowhere does the federal firearm law limit its applicability to the parameters

of the state firearm law.”). But when a state has no all-purpose definition of conviction,

courts must look somewhere. And whether a defendant has been “convicted” for the

purpose of the state’s own felon-in-possession statute is a good place to start. See United

States v. Chubbuck, 252 F.3d 1300, 1304 (11th Cir. 2001) (“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.” (emphasis

added)).

         The North Carolina felon-in-possession ban defines “conviction” as “a final

judgment in any case in which felony punishment, or imprisonment for a term exceeding

one year . . . is authorized, without regard to the plea entered or to the sentence imposed.”

N.C. Gen. Stat. § 14-415.1(b) (emphasis added). Smith’s guilty plea and conditional

discharge—as required by statute—was done “without entering a judgment of guilt.”




                                             5
JA16; see also id. (deferring “further proceedings”). 2 And without entry of a judgment,

and until the anticipated “further proceedings” take place, the conditional discharge does

not lead to a final judgment. In sum, because this definition of “conviction” requires a final

judgment, and Smith had no final judgment, there was no conviction.

       The Government points to a different definition of “conviction” from North

Carolina’s sentencing scheme, N.C. Gen. Stat. § 15A-1331(b). This provides: “For the

purpose of imposing sentence, a person has been convicted when he has been adjudged

guilty or has entered a plea of guilty or no contest.” Id. Since a person is “convicted” after

entering a plea of guilty, and a conditional discharge requires a guilty plea, a conditional

discharge necessarily involves a conviction. But this definition is limited “[f]or the purpose

of imposing sentence.” Id. And even within the sentencing context, other provisions

suggest a different result.    A separate sentencing statute provides that a “convicted

offender” may be placed on probation for no more than five years while someone receiving

“a conditional discharge” is limited to two years. N.C. Gen. Stat. § 15A-1342(a). This

provision suggests that North Carolina sentencing law does not always treat a conditional

discharge as a conviction.




       2
         A conditional discharge also fails to constitute the imposition of a “final” sentence,
instead deferring it. By statute, the initial conditional-discharge probation may be followed
by punishment if the defendant violates “a term or condition of a conditional discharge.”
N.C. Gen. Stat. § 15A-1341(a6). This punishment extends to the full extent of the
punishment provided by the underlying offense. Id. Thus, the initial conditional-discharge
probation is not a final sentence but merely a step along the path to determining the final
sentence. Cf. id. at § 15A-101(4a) (“Judgment is entered when sentence is pronounced.”).

                                              6
          Similarly unavailing are the Government’s citations to North Carolina sentencing

cases. Govt. Br. at 8. These cases do not adopt a bright-line rule that a guilty plea is a

conviction for all purposes. For example, in North Carolina v. Thompson, the court noted

that a “valid guilty plea acts as a conviction of the offense charged” for purpose of

establishing the aggravating factors used to sentence the defendant on that guilty plea. 336

S.E.2d 78, 81 (N.C. 1985) (emphasis added). Yet the fact that the plea “acts” as a

conviction in this specific circumstance suggests, if anything, that it is not a conviction in

others.       Cf. United States v. Waters, 359 F.3d 340, 346 (4th Cir. 2004) (“That an

adjudication is treated as a conviction in specific circumstances implies that it is not so

treated as a general rule.”). 3 Thompson thus serves to confirm our conclusion above: a

guilty plea may serve as a conviction for sentencing, not necessarily for all purposes.

          The Government also seeks to analogize Smith’s conditional discharge to a “prayer

for judgment continued,” which the North Carolina Court of Appeals has held qualified as

a conviction barring issuing a firearm permit. Friend v. North Carolina, 609 S.E.2d 473,

476 (N.C. Ct. App. 2005). A prayer for judgment continued is a unique procedure of North

Carolina criminal law that allows the court to delay sentencing a defendant who has

pleaded guilty until a later term of the court. In Friend, the North Carolina court analyzed



          3
         In North Carolina v. Sidberry, the court noted that a guilty plea “is equivalent to a
conviction” for the purpose of North Carolina Rule of Evidence 609(a). 448 S.E.2d 798,
800 (N.C. 1994). As in Thompson, the court did not say that a guilty plea was in fact a
conviction; the plea was only “equivalent” to a conviction. And it did so in the context of
determining whether a guilty plea with a “prayer for judgment continued” could be used to
attack the credibility of a witness.

                                              7
whether someone who has entered such a prayer falls within the scope of a statute that

prohibits issuing a firearm permit to anyone “who is under an indictment or information

for or has been convicted . . . of a felony.” N.C. Gen. Stat § 14-404(c)(1). Relying largely

on judicial decisions in other contexts that treated a guilty plea as a conviction, the court in

Friend reasoned that, despite the lack of any sentence, a plea followed by a prayer for

judgment continued counted as a conviction under § 14-404(c)(1). See Friend, 609 S.E.2d

at 475.

          For two reasons, we conclude that the North Carolina Supreme Court would not

apply Friend’s holding to a conditional discharge.

          First, while we generally treat intermediate appellate-court decisions as good

evidence of state law, we have doubts about Friend’s persuasiveness. Friend appears to

find that a plea with a prayer for a judgment continued constitutes a “judgment,” making

the plea and prayer a conviction. Friend, 609 S.E.2d at 476 (noting that a conviction is a

“judgment”). But this conflicts with an earlier North Carolina Supreme Court decision:

“When the prayer for judgment is continued there is no judgment—only a motion or prayer

by the prosecuting officer for a judgment.” State v. Griffin, 100 S.E.2d 49, 51 (N.C. 1957).

And it conflicts with a North Carolina statute: “Prayer for judgment continued upon

payment of costs, without more, does not constitute the entry of judgment.” N.C. Gen.

Stat. § 15A-101(4a).

          Only if the judge also “imposes conditions amounting to punishment (fine or

imprisonment)” does a prayer for judgment order become a “final judgment.” Griffin, 100

S.E.2d at 51. For when the prayer and punishment occur at the same time, the court must

                                               8
treat the prayer as surplusage because the punishment creates a final judgment, subject to

appeal. Since punishment has already been inflicted, “the court has exhausted its power

and cannot thereafter impose additional punishment.” Id. 4 Thus, a key predicate of

Friend’s holding—that a “prayer for judgment continued” constitutes a “judgment”—

appears to be inconsistent with North Carolina law. 5

       Second, even if we accepted Friend’s analysis of prayers for judgment continued,

we would find conditional discharges distinguishable. In 2014, the North Carolina General

Assembly amended the state’s law on “Probation Generally” to authorize courts to grant a

conditional discharge. N.C. Gen. Stat. § 15A-1341(a4). True, the statute requires the

imposition of consequences in the form of probation with conditions, which makes it look

somewhat like a conviction. Yet the imposition of probation as part of a conditional

discharge is done “without entering a judgment of guilt” and instead “defer[s] further

proceedings.” Id. This procedure permits the court to impose consequences in the form of

conditions and fines as part of the conditional-discharge probation while leaving open the



       4
          The broad rationales employed by Friend are also hard to square with North
Carolina cases explaining that the meaning of the word “conviction” varies “depending
upon the context in which it is used.” See Bandy, 189 S.E.2d at 774. Compare N.C. Gen.
Stat. § 14-415.1 (conviction is a “final judgment[,] … without regard to the plea entered
or to the sentence imposed”) (emphasis added), with id. at § 15A-1331(b) (conviction
includes a “plea of guilty”).
        5
          Nor do the cases that Friend cited provide much support for its analysis. Like
Sidberry and Thompson discussed above, these cases provide little clue about whether a
conditional discharge should be treated as a conviction under North Carolina law for the
federal felon-in-possession ban. For example, in North Carolina v. Watts, 325 S.E.2d 83
(N.C. Ct. App. 1985), the appellate court summarily found that a “no contest” plea counted
as a conviction without discussion of whether the defendant had been sentenced.

                                            9
possibility of punishment. Id. at § 15A-1341(a6). 6 As a result, even if a prayer for

judgment continued is properly treated as a “judgment” (as Friend held) and thus a

conviction, the governing statute tells us that a conditional discharge is not a “judgment.”

       Looking for a last bastion, the Government suggests that we resolve any uncertainty

by looking at the punitive purpose of the federal law. Even were we to turn to purpose, the

Government gets it exactly backwards. If we were unsure about how North Carolina law

would treat Smith’s conditional-discharge guilty plea, the punitive nature of the law—

particularly where Smith must know that he had been “convicted,” Rehaif, 139 S. Ct. at

2194—would point us to the rule of lenity and require us to find for Smith. See generally

United States v. Davis, 139 S.Ct. 2319, 2333 (2019); State v. Cates, 573 S.E.2d 208, 210

(N.C. Ct. App. 2002).

                               *             *             *

       Based on our review of North Carolina statutes and caselaw, we conclude that the

North Carolina Supreme Court would not treat a plea of guilty followed by conditional

discharge as a conviction in the context of the federal felon-in-possession statute. Thus,

Smith’s conditional discharge from 2016 was not a conviction under § 921(a)(20). So

Smith could not have violated § 922(g)’s prohibition on possessing a firearm after being

“convicted” of a felony. Smith’s federal conviction is therefore

                                                                               REVERSED.


       6
        In contrast, a prayer for judgment continued to the next term of court prohibits a
court from dismissing the proceeding absent a habeas corpus petition or motion for
appropriate relief. State v. Popp, 676 S.E.2d 613, 615 (N.C. Ct. App. 2009).

                                             10
