Tuesday, August 18, 2015


New Mexico offers a conditional discharge order -- plead guilty, successfully live down a probationary term, and the case is dismissed without any adjudication of guilt. Fail, and the conditional discharge is withdrawn and the court may impose a finding of guilt. N.M. Stat. Ann. § 31-20-13(A). Other states offer similar dispositions, including Texas (Tex.Code Crim. Proc. Ann., Art. 42.12, § 5 (Vernon 2006 Supp. Pamphlet)) and Oklahoma (22 Okl.St.Ann. § 991c).  

Back to New Mexico. Mr. Saiz was mid-probation after a discharge order when he was arrested for federal firearm charges. The issue in US v. Saiz is one of sentencing guidelines: Was he a prohibited person by reason of being "under indictment", which increases the offense level under USSG 2K2.1, or not? 

The 10th said yes. "The charges in an indictment are not extinguished upon the guilty plea or verdict. Instead, they remain in suspension until the defendant completes his term of probation. . . .  Saiz remained under indictment in New Mexico at the time he committed the federal firearms offenses at issue here because the charges were never dismissed." But the Court helpfully (well, not helpful to Mr. Saiz, but maybe to one of our clients) pointed out that Missouri has a similar suspension of adjudication, and that the Eighth Circuit has held that when a guilty plea is entered, as it is in both Missouri and New Mexico, the indictment's primary function is extinguished. The Tenth simply chose to disagree with the Eighth, adding to the circuit split.

This case is only about "prohibited person" as defined in USSG 2K2.1, and could extend to the weapons possession charge in 18 USC 922(n). But it does not address how these deferred dispositions count in criminal history. That is found in USSG 4A1.2(f), Diversionary Dispositions. Here is the key -- if the "judicial process" did not include a finding or admission of guilt, it (usually) does not count. But a judicial proceeding that includes a finding or admission of guilt, even without adjudication, does. 

Remember, it must be within a judicial proceeding; out-of-court agreements are not judicial proceedings, and presentation of a diversion or deferment to a court is not necessarily a judicial proceeding with a finding of guilt. For that reason, the common requirement of a factual stipulation should be confined to just that -- facts without any admission of legal guilt. 

As always, there are many shades from many different state and local statutes. Saiz' deferral probably counted in criminal history because there was a judicial finding of guilt, just no conviction. A Missouri deferred adjudication may not. Because of the many variations, though, the only way to know the answer in a particular case is research.  

-- Melody

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