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United States Court of Appeals,Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Freddie Lee SMITH, a.k.a. Fat Freddie, Defendant-Appellant, Cross-Appellee.

No. 94-4725

Decided: October 09, 1996

Before ANDERSON, BIRCH and CARNES, Circuit Judges. Jill Kramer Traina, Coral Gables, FL, for appellant. William A. Keefer, U.S. Atty., Steven A. Tyrrell, Carol Herman, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Court-appointed counsel in this direct criminal appeal has moved to withdraw and has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).   Our independent review of the entire record reveals that counsel's assessment of the relative merit of the direct appeal is correct.   Because the record reveals no issues of arguable merit, counsel's motion to withdraw is GRANTED and Smith's convictions are AFFIRMED.

The government has cross-appealed with respect to the sentence given in this case.   The sentencing court found that the government could not rely upon Smith's 1978 state court plea of nolo contendere to a felony narcotics offense, followed by a withholding of adjudication, because it was not a “conviction” within the purview of 21 U.S.C. §§ 841(b)(1)(A) and 851.  United States v. Smith, 856 F.Supp. 665, 667 (S.D.Fla.1994).

 We specifically have held that a “prior plea of nolo contendere with adjudication withheld in Florida state court is a ‘conviction’ that supports an enhanced sentence under [federal narcotics law].”  In United States v. Mejias, 47 F.3d 401, 404 (11th Cir.1995) (per curiam).   In reaching this conclusion, we noted that “[t]he meaning of the word ‘conviction’ in a federal statute is a question of federal law unless Congress provides otherwise.”  Id. at 403 (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119, 103 S.Ct. 986, 995, 74 L.Ed.2d 845 (1983)).   Because there is no indication in either 21 U.S.C. § 841 or § 851 that Congress intended that the definition of a conviction should be determined by reference to state law, we concluded that federal law was controlling.  Id. at 403-04.

Applying Mejias to this case, we VACATE the decision of the sentencing court wherein it failed to consider Smith's 1978 state felony disposition as a conviction for the purposes of 21 U.S.C. §§ 841 and 851 and REMAND to the district court for resentencing in accord with our decision in Mejias.   Smith, the cross-appellee, contends that application of Mejias in these circumstances would result in a mandatory sentence of life imprisonment and that imposition of such a sentence would constitute cruel and unusual punishment under the Eighth Amendment.   Until the district court imposes such a sentence, however, Smith's challenge is premature and not ripe for review.   If the government at resentencing again requests that a mandatory life sentence be imposed, and the court does so, Smith may raise, preserve, and pursue his Eighth Amendment challenge at that time.

Accordingly, we AFFIRM the convictions of Smith, VACATE Smith's sentence, and REMAND to the district court for resentencing.


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