THIS COURT SHOULD DISMISS COUNT ONE

In Count One of the indictment, Mr. * is charged with being a deported alien in the United States and with having been deported after a conviction for an aggravated felony. See 8 U.S.C. § 1326(b) (2) . The alleged aggravated felony is a California conviction for possession of a controlled substance under Health & Safety § 11351. According to discovery provided by the government, imposition of sentence was suspended in that case, and Mr. * was placed on probation. See Report -Indeterminate Sentence or Other Sentence Choice attached hereto as Exhibit A. That offense did not result in a conviction for the purposes of § 1326 (b) (2) .

Section 1326(b)(2) provides for draconian penalties in the event that the alien in question is one "whose deportation was subsequent to a conviction for commission of an aggravated felony . . . . The term "conviction" is defined at 8 U.S.C. § 1101 (a) (48) (A) :

The term 'conviction' means..... a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where -- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty of nolo contenders or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty is imposed.

In short, the definition of conviction includes two wide categories of adjudications: (1) cases where there is a final judgment and (2) cases where there is riot an adjudication of guilt so long as this category of cases includes most of the attributes of a finding of guilt accompanied by some imposition on the liberty of the individual. In order to qualify as an aggravated felon, then, Mr. *Is alleged conviction must come within one of these two categories.

A. Mr. *Is Conviction Does Not Constitute A Final Judgment.

The first category of cases that qualify as "convictions" requires that there be a "formal judgment of guilt of the alien entered by a court." 8 U.S.C. § 1101(a)(48)(A). In Mr. *'s August 1990 conviction for possession of heroin for sale -- the conviction alleged in Count One -- imposition of sentence was suspended. See Exhibit A. When imposition of sentence is suspended in a California case, no final judgment is entered. Stephens v. Toomey, 51 Cal. 2d 864, 871, 338 P.2d 182, 183 (1959). Accord United States v. Qualls, 108 F.3d 1019 (9th Cir. 1997). In cases "where the court withholds imposition of judgment, suspends further proceedings on the plea or verdict and places the defendant on probation on such conditions as are reasonable and for such time as authorized by law, . . there is no judgment pending against the probationer." Id. Because imposition of sentence was suspended in the August 1990 case alleged in Count One, that case did not result in the entry of a formal judgment by the court that granted probation. Thus, Mr. *'s purported aggravated felony does not constitute a conviction

by virtue of a formal judgment entered by a court. It is, therefore, not a predicate judgment under § 1101 (a) (48) (A)

B. Adjudication of Guilt Was Not Withheld.

The second category of cases establishes an exception to the entry of formal judgment rule in cases where "adjudication of guilt has been withheld." 8 U.S.C. § 1101 (a) (48) . The key issue here is what constitutes a withholding of adjudication of guilt. Although no definition is provided, the legislature chose not to create an exception based upon the failure to enter a formal judgment. In other words, the second clause in § 1101 (a) (48) (A) was not drafted so as to apply to every case in which there was not a formal judgment entered. Rather, § 1101 (a) (48) (A) addresses cases in which an adjudication of guilt was withheld. The category of cases in which an adjudication of guilt is withheld is not, however, necessarily coextensive with the category of cases in which no formal judgment of guilt is entered. Thus, in cases in which there is an adjudication of guilt without entry of formal judgment, neither of the two formulations of the term "conviction" would be applicable.

In California, a guilty plea coupled with suspension of sentence does not require that "adjudication of guilt . . . be withheld." Rather, under California law, a plea of guilty is sufficient to establish a "conviction" as that term is employed in California. Stephens v. Toomey, 52 Cal. 2d at 869, 338 P.2d at 184. Accord People v. Rosburv, 15 Cal. 4th 206, 932 P.2d 207, 61 Cal. Rptr. 2d 635 (1997). The fact of imposition of probation is "immaterial" in assessing whether there is a conviction under California -- as opposed to federal -- law. Id. at 207 (citations omitted). Indeed, a plea of guilty followed by a suspension of imposition of sentence is considered to be a prior felony conviction for the purposes of California's Three Strikes Law. Id. at 207. Thus, because the guilty plea results in a conviction, adjudication of guilt is not withheld; it is simply not formally entered. As a consequence, the probationary disposition received by Mr. * in his 1990 case was not one in which an adjudication of guilt was withheld nor was it one in which a formal judgment of guilt was entered. As a consequence, the prior "conviction" alleged in count one fits into neither of the two categories. He, therefore, does not have a conviction as that term is employed in § 1101 (a) (48) (A) .

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