United States v. Carmello Anthony Rolon -Western District of Michigan at Grand Rapids
Split Score
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Case Summary
Disposition
Affirmed
The Sixth Circuit held that a defendant who had pleaded guilty in a Michigan Holmes Youthful Trainee Act diversion program was still "under indictment" when he later possessed a firearm with an obliterated serial number. Because the original felony information remained pending until he completed (or was revoked from) the program, the court affirmed the district court’s application of the U.S.S.G. § 2K2.1 prohibited-person enhancement and upheld the 48-month sentence.
Circuit Split Identified
Legal Issue
Whether a defendant who has pleaded guilty and is participating in a state diversion/deferred-adjudication program remains "under indictment" for purposes of 18 U.S.C. § 922(n) and the corresponding U.S.S.G. § 2K2.1 prohibited-person enhancement.
Circuit Positions
Diversion/deferred-adjudication leaves the defendant "under indictment" under § 922(n).
Diversion/suspended-sentence defendants are not "under indictment" under § 922(n).
Conflict Summary
The Fifth, Sixth, and Tenth Circuits treat a guilty-plea diversion or deferred-adjudication program as leaving the original information/indictment pending, so the defendant is still "under indictment." The Eighth Circuit holds that once the defendant pleads guilty and receives a suspended sentence, the indictment is extinguished and § 922(n) no longer applies.