Sentencing; Applicability of USSG § 2K2.1(a)(4)(B) (firearms offense enhancement for possession by a “prohibited person”); Whether a defendant who was in a youth diversion program was “under indictment” when the federal crime occurred; Effect of “youthful trainee” status under the Holmes Youthful Trainee Act (HYTA); MCL 762.14(2)

[This appeal was from the WD-MI.] The court affirmed the enhancement of defendant-Rolon’s firearm sentence under § 2K2.1(a)(4)(B) where his participation in Michigan’s HYTA program qualified him as being “under indictment” and thus, a “prohibited person” for federal firearms purposes. Rolon pled guilty to a state felony and was placed in the HYTA diversion program, on 18 months’ probation. This “deferred” his conviction and entry of judgment. While in this program, he committed the federal gun crime giving rise to this case, and his participation in the program was revoked. He pled guilty in this case to possessing a stolen firearm with an altered serial number. In sentencing him, the district court increased his sentence two levels under § 2K2.1(a)(4)(B), reasoning that he was still “under indictment” for his state offense because it “‘remained pending’ when” he committed the federal offense. The district court sentenced him to 48 months. The court agreed that Rolon’s participation in the diversion program meant that he was “under indictment” and thus was a “prohibited person” under federal firearm laws when he committed the federal crime. “Nothing dissolved or withdrew the original information filed by Michigan prosecutors” and the state court had not “entered any judgment on it.” Rolon acknowledged that “‘the charge remain[ed] pending.’” As long as he remained “a trainee, the Michigan court could at ‘any time’ revoke that status and ‘enter an adjudication of guilt’ under the original information.” A new information is not required under Michigan law. The court rejected Rolon’s claim that he was “already serving” his sentence when he was on probation, noting that MCL 762.14(2) provides that “‘assignment of an individual to the status of youthful trainee . . . is not a conviction for a crime.’” Moreover, he would still be a “prohibited person” whether he was an individual “under indictment” or a convicted felon.