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Cleaton v. Department of Justice

United States Court of Appeals, Federal Circuit

October 13, 2016

ALESTEVE CLEATON, Petitioner
v.
DEPARTMENT OF JUSTICE, Respondent

         Petition for review of the Merit Systems Protection Board in No. DC-0752-14-0760-I-1.

          Robert J. Gajarsa, Latham & Watkins LLP, Washington, DC, argued for petitioner. Also represented by Lauren M. Bennett.

          Eric 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.

          Before Dyk, Wallach, and HUGHES, Circuit Judges.

          Hughes, Circuit Judge.

         Alesteve 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.

         I

         Mr. 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 deal.").[1]

         Following 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 Court." Id.

         On May 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. 1055-56.

         On June 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." J.A. 1103.

         After 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 dismissed.

         Mr. 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.

         Mr. Cleaton appeals. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) ...


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