NM Conditional Discharge Counts as being "Under Indictment"

United States v. Saiz, 2015 WL 4901840 (8/18/2015) (NM) (published): Saiz’s sentence for having unlawfully possessed a firearm was enhanced because he was “under indictment” for other state offenses when he committed the federal offense. Specifically, at the time he was on probation for state offenses in New Mexico. After he had pleaded guilty to the state charges, they were conditionally discharged under state law, which meant that if he completed a term of probation they would be dismissed. At sentencing, the court ruled Saiz qualified as a “prohibited person” as defined in USSG § 2K2.1(a)(4)(B). Prohibited persons include anyone described in 18 U.S.C. §§ 922(g) or 922(n). Section 922(n) includes “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year.” Saiz argued a conditional discharge does not count as being “under indictment.” The panel disagreed.

Saiz argued that an indictment dissipates when the accused pleads guilty in state court and the court imposes probation and a conditional discharge. In other words, the indictment serves no further purpose - after all, if the accused violates probation he will not then be able to litigate his innocence. The court simply imposes a sentence based on his earlier guilty plea. The panel disapproved of this interpretation. Without citing any authority, it declared that an indictment is not extinguished upon a guilty plea or verdict. Instead, it “remain[s] in suspension until the defendant completes his term of probation.” But the panel conceded that no formal process is necessary for a court to adjudicate an accused guilty if he violates the conditions of probation. Still, it concluded - again without citing any authority - that “[t]o the extent that a conditional discharge puts off a finding of guilt, it simply prolongs the life of the indictment.” The panel acknowledged a circuit split on this issue. It decided to side with the 5th Circuit’s opinion in U.S. v. Valentine, 401 F.3d 609, 611 (5th Cir. 2005) rather than the 8th’s opinion in U.S. v. Hill, 210 F.3d 881 (8th Cir. 2000). That being so, this issue is worth preserving, especially considering what the panel had to go through to get around the compelling legal arguments laid before it.