for review of the Merit Systems Protection Board in No.
J. Gajarsa, Latham & Watkins LLP, Washington, DC, argued
for petitioner. Also represented by Lauren M. Bennett.
John Singley, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Benjamin C. Mizer, Robert
E. Kirschman, Jr., Scott D. Austin.
Dyk, Wallach, and HUGHES, Circuit Judges.
Hughes, Circuit Judge.
Cleaton was removed from his position as Correctional Officer
pursuant to 5 U.S.C. § 7371, which mandates the removal
of any law enforcement officer who is convicted of a felony.
Mr. Cleaton appeals the Merit Systems Protection Board's
decision sustaining his removal. Because the Board did not
err in finding that Mr. Cleaton was convicted of a felony on
May 6, 2014, we affirm.
Cleaton was a Correctional Officer with the Bureau of Prisons
(BOP) at the Federal Correctional Complex in Petersburg,
Virginia. On December 17, 2013, Mr. Cleaton was indicted in
Virginia State court on a felony charge for possession of
marijuana with intent to distribute. J.A. 1097. During a
hearing on March 20, 2014, Mr. Cleaton pled no contest to the
felony charge pursuant to a plea deal. Pet. Br. at 7
("After his indictment, Mr. Cleaton pled no contest to
the charge against him pursuant to a plea
the hearing, on May 6, 2014, the trial court entered an order
noting that "defendant was arraigned and plead [sic]
guilty to the charge in the indictment." J.A. 1059. The
court further noted that "having heard the evidence,
[the court] accepted defendant's plea of guilty, and
found him guilty of possessing] marijuana with intent."
Id. The court deferred the imposition of the
sentence "upon the condition that defendant cooperate
fully with the requests for information made by the Probation
Officer, who is directed to conduct a thorough investigation
and to file a long-form presentence report with the
9, 2014, BOP proposed to remove Mr. Cleaton from his position
pursuant to 5 U.S.C. § 7371(b). J.A. 1057-58. Mr.
Cleaton was notified on May 20, 2014, that he would be
removed from his position effective May 31, 2014. J.A.
5, 2014, Mr. Cleaton appealed his removal to the Board
asserting that he was not convicted on May 6, 2014. The
Administrative Judge issued an initial decision on October 3,
2014, finding that Mr. Cleaton was properly removed under 5
U.S.C. § 7371(b) because he was "convicted of a
felony" that was "recorded on May 6, 2014."
Mr. Cleaton was removed, he obtained new counsel and on
November 20, 2014, he entered into a revised plea agreement.
J.A. 1143-49. The revised plea agreement added a misdemeanor
charge for contempt, but did not change Mr. Cleaton's
previous no contest plea to the felony. J.A. 1141. The court
accepted the plea agreement noting that "Defendant pled
no contest to both charges and stipulated that evidence was
sufficient to convict him on both charges." Id.
But, pursuant to the plea agreement the court "withheld
a finding [of guilt] for a period of 2 years."
Id. The court placed Mr. Cleaton on supervised
probation for two years and, upon successful completion of
the probation period, the charges against Mr. Cleaton will be
Cleaton appealed the Administrative Judge's initial
decision to the Board, arguing that pursuant to the revised
plea agreement the court withheld a finding of guilt and
therefore he was not convicted of a felony on May 6, 2014.
The Board disagreed and upheld Mr. Cleaton's removal.
Cleaton appeals. We have jurisdiction under 5 U.S.C. §