In a recent post, we pointed out that 18 U.S.C. § 922 criminalizes the possession of a firearm by a convicted felon. To be charged and convicted under § 922, the felon must have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. This statute has three essential elements: (1) knowing possession of a firearm, (2) possession that is in or affecting commerce, and (3) the defendant has a prior conviction of a crime whose penalty was exceeded by a term of imprisonment of one year.
With respect to this statute, one of the questions the John T. Law Firm most frequently fields is whether a Texas deferred adjudication probation can be used to convict someone under this Federal law. Article 42.12 § 5(a), Texas Code of Criminal Procedure, authorizes deferred adjudication for a defendant found guilty of certain crimes. The Texas Court of Criminal Procedure described this penalty as “a type of community supervision.” That’s because a judge, after a defendant enters a guilty plea or a plea of no contest and the judge finds evidence of the defendant’s guilt, the judge may “defer” further proceedings and place the defendant on community supervision without an “adjudication of guilt” being entered.
Art. 42.12 § 5(c) authorizes the judge to dismiss the proceedings and discharge the defendant from custody, and the defendant “may not be deemed [to have] a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”
There are substantial benefits to a defendant stemming from a deferred adjudication proceeding. The primary benefit is that if the defendant successfully completes the period of community supervision without the judge making a finding of guilt, he has no conviction. Therefore, while there is a record of the arrest and the deferred adjudication, the defendant can legally report he has no conviction.
At least two federal courts have addressed the issue of whether a deferred adjudication can be used as the predicate conviction in a § 922 case: the Tenth Circuit Court of Appeals has held that a deferred adjudication issued under Oklahoma law could not support a federal felon in possession prosecution, and likewise, a U.S. District Court in Maine found that a deferred adjudication under Texas law could not be used as a predicate conviction under the Federal gun statute.
The Fifth Circuit, however, has sort of been all over the map on the use of deferred adjudications. The appeals court has held that deferred adjudications can be considered a “prior conviction” under the both U.S. Sentencing Guidelines and the Immigration and Nationality Act. However, the appeals court has also held that since a deferred adjudication under Texas law is not a conviction, it cannot be used for impeachment purposes under Rule 609 of the Federal Rules of Evidence. Similarly, the appeals court held a defendant truthfully stated on a firearm purchase form that he had no prior felony conviction given that he had successfully completed a deferred adjudication on a stolen vehicle charge.
Given the specific language of § 922(a)(20) which stated that a “conviction” shall be determined “in accordance with the law of the jurisdiction in which the proceedings were held” and given that under Texas law a “conviction” requires an adjudication of guilt which does not occur under Art. 42.12 § 5(c), a Texas deferred adjudication should not be used as a predicate “conviction” under § 922. As the U.S. District Court in the Maine case said in 2003: “whether something constitutes a conviction for purposes of the Sentencing Guidelines or the INA is a wholly different question than whether the same is a conviction under the federal gun laws.”
We agree. The intent of Congress when it enacted § 922 was to allow the states to determine who will be subject to prosecution under this law. Thus, courts should consider the provisions of Art. 42.12 § 5(c) as overriding determinative factors in deciding whether a Texas deferred adjudication can be used in a § 922 case.
Our research failed to discover a case in which the Fifth Circuit addressed this precise issue head on. And until the U.S. Supreme Court squarely addresses the issue in a case involving a Texas deferred adjudication, we will remain convinced that a deferred adjudication is not a “conviction” for § 922 purposes.
However, our advice to concerned clients is that possessing firearms after successfully completing a deferred adjudication must be done responsibly and with caution, unless one risks becoming a test case under one of the federal government’s “get tough on crime” programs.