Argued: May 8, 2019
States District Court for the Western District of North
Carolina, at Asheville. Martin K. Reidinger, District Judge.
Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
MOTZ, WYNN, and RICHARDSON, Circuit Judges.
Richardson, Circuit Judge.
Smith was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). While there
is no doubt that he possessed a firearm, we must decide
whether he was a felon under federal law. Answering that
question is surprisingly difficult. Federal law treats
someone as a felon if "convicted" of a crime
punishable by more than one year in prison. 18 U.S.C. §
922(g)(1). But what exactly counts as a
"conviction"? In some cases the answer seems
easy-for example, where a federal judge imposes a sentence
after a jury has found the defendant guilty. In other cases
it is hard; this is one of them. Smith's only alleged
conviction is a North Carolina larceny offense where the
state-court judge imposed a "conditional discharge,
" as provided for by state statute, after a plea. So we
must determine whether a conditional-discharge plea is a
"conviction." And by statute, we must follow North
Carolina law in making that determination. 18 U.S.C. §
district court found that, under North Carolina law, a plea
of guilty followed by conditional-discharge probation is a
conviction. We disagree and conclude that the North Carolina
Supreme Court, if faced with the question before us, would
hold that a conditional-discharge plea is not a conviction
for purposes of §§ 921 and 922. So Smith was not a
felon, and his federal felon-in-possession conviction must be
2016, Smith pleaded guilty to Larceny by Employee, N.C. Gen.
Stat. § 14-74, a state-law felony punishable by
imprisonment for between four and twenty-five months,
id. at § 15A-1340.17. The judge, under
statutory authority and with the consent of the prosecutor,
imposed a "conditional discharge." This meant that
"without entering a judgment of guilt, " the court
"defer[ed] further proceedings and place[d] the person
on probation . . . for the purpose of allowing the defendant
to demonstrate the defendant's good conduct."
Id. at § 15A-1341(a4). If Smith fulfilled the
probation conditions imposed, then "any plea or finding
of guilty previously entered shall be withdrawn and the court
shall discharge the person and dismiss the proceedings
against the ...