A recent appeals court decision addresses whether pleading no contest to a state felony charge as the result of a plea deal is nevertheless a “conviction” for purposes of federal law that requires removal for such convictions. (Cleaton v. Department of Justice (CAFC No. 2015-3126, 10/13/16))
Mr. Cleaton worked for the Bureau of Prisons as a corrections officer at Petersburg, Virginia. Virginia indicted him for felony possession of marijuana with intent to distribute. His attorney worked out a plea deal and Cleaton entered a “no contest” plea. The trial court accepted Cleaton’s plea and “found him guilty” of the charge. (p. 2)
Three days later the BOP proposed to remove Cleaton in accordance with federal law 5 USC 7371(b). That law reads in pertinent part: “[a]ny law enforcement officer who is convicted of a felony shall be removed from employment as a law enforcement officer on the last day of the first applicable pay period following the conviction notice date.” (p. 4) In other words, removal is mandatory by law. The agency has no discretion.
Cleaton argued this law was not triggered because he pled no contest. He even tried to get the Virginia court to throw out the first plea deal and enter a new one that would not look like a conviction. All of his arguments and efforts were to no avail. The court points to “Congress’s main concern in enacting [this law] was prohibiting individuals that were guilty of felonies from serving the public as law enforcement officers. Before [this law] an agency had discretion regarding removal … [and it was] Congress’s intent to remove that discretion in order to maintain the public’s trust in the federal law enforcement system.” (p. 6)
As to Cleaton’s contention that the law did not apply because he never actually was sentenced, the court found no basis for that in the law’s language or the legislative history. “Further, when an individual is placed on probation, a court does not need to necessarily issue a formal adjudication of guilt because ‘one cannot be placed on probation if the court does not deem him to be guilty of a crime.’” (p. 6)
This precedential decision is important in that it clarifies that the mandatory removal applies to convictions in state court as well as federal court and that a no contest plea will not provide an out.