United States of America v. Carmello Anthony Rolon

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0029p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARMELLO ANTHONY ROLON,
Defendant-Appellant.
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No. 24-1735
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:24-cr-00032-1—Jane M. Beckering, District Judge.
Decided and Filed: January 30, 2026
Before: SUTTON, Chief Judge; STRANCH and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Juni S. Ganguli, GANGULI LAW FIRM, Memphis, Tennessee, for Appellant.
John J. Schoettle, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
SUTTON, Chief Judge. Michigan charged Carmello Anthony Rolon, then eighteen years
old, with a state-law felony. Rolon pleaded guilty and the court, instead of entering a judgment,
placed him in a Michigan diversion program for youthful offenders that left the original charge
in place while permitting the court to enter a judgment of conviction at any time if Rolon failed
to satisfy the requirements of the program. Rolon committed a federal gun crime while still in
the diversion program. In sentencing him, the district court increased his offense level because
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he was still “under indictment” due to his pending status as a participant in the Michigan
diversion program. We agree and affirm.
I.
In 2022, Rolon pleaded guilty in a Michigan court to an information charging him with
one count of carrying a concealed weapon without a license, a felony punishable by up to five
years in prison. Information, People v. Rolon, Case No. 22-000543-FH (Mich. 30th Jud. Cir. Ct.
July 25, 2022); see Robinson v. Woods, 901 F.3d 710, 712 n.1 (6th Cir. 2018) (noting that we can
take judicial notice of proceedings in other courts of record); Mich. Comp. Laws § 750.227. The
court took Rolon’s guilty plea, and, on October 10, 2022, “deferred” “conviction” and “judgment
of guilt” pursuant to the Holmes Youthful Trainee Act, Mich. Comp. Laws §§ 762.11–762.15, a
diversion program for youthful offenders in Michigan. Judgment of Sentence, People v. Rolon,
Case No. 22-000543-FH (Mich. 30th Jud. Cir. Ct. Oct. 10, 2022). Rolon instead began an
eighteen-month term of probation, which would result in the dismissal of his charges if he
successfully completed the program. Order of Probation, People v. Rolon, Case No. 22-000543-
FH (Mich. 30th Jud. Cir. Ct. Oct. 10, 2022).
It did not take long, unfortunately, before Rolon had another run-in with the police. In
2023, while he was still on probation, Rolon drew the attention of police when an investigation
of an ongoing gang war led police to photos and videos that Rolon posted on social media of him
holding guns. On January 23, 2024, police officers in Lansing executed a search warrant for
Rolon’s home. They found a loaded Glock 19 pistol with an obliterated serial number. Rolon
admitted that the gun was in his possession and that he knew it lacked a serial number.
On February 22, the Michigan court revoked Rolon’s participation in the diversion
program. Order for Discharge from Probation, People v. Rolon, Case No. 22-000543-FH (Mich.
30th Jud. Cir. Ct. Feb. 22, 2024).
On March 7, a federal grand jury indicted Rolon for possessing a firearm with an altered
serial number. 18 U.S.C. § 922(k). Rolon pleaded guilty to the charge. At sentencing, the
district court accepted the presentence investigation report’s conclusion that Rolon’s offense
level should be increased because he possessed the gun while a “prohibited person.” R.44 at 5–

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No. 24-1735 United States v. Rolon Page 3
10; R.33 at 12, 26–27; U.S.S.G. § 2K2.1(a)(4)(B). Rolon qualified as a “prohibited person,” the
court reasoned, because his status in the state diversion program meant that the 2022 information
charging him with a state felony “remained pending” when the police caught him with an illegal
gun in January 2024. R.44 at 10. The court calculated a sentencing guidelines range of 51 to 60
months and sentenced him to 48 months.
II.
On appeal, Rolon argues that his participation in the Michigan diversion program did not
leave him “under indictment” and, as a result, the court should not have increased his offense
level as a “prohibited person.” See U.S.S.G. § 2K2.1(a)(4)(B); 18 U.S.C. § 922(n).
A.
The sentencing guideline used for firearms charges raises a defendant’s offense level if
his offense involved (1) “a semiautomatic firearm that is capable of accepting a large capacity
magazine” and (2) the “defendant [] was a prohibited person at the time” of the offense.
U.S.S.G. § 2K2.1(a)(4)(B). The associated commentary explains that a “‘prohibited person’
means any person described in 18 U.S.C. § 922(g) or § 922(n).” Id. § 2K2.1 cmt. 3.
Section 922(g) reaches a variety of situations, such as convicted felons, while § 922(n) covers
“any person who is under indictment for a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(n). An “‘indictment’ includes an . . . information in any
court under which a crime punishable by imprisonment for a term exceeding one year may be
prosecuted.” Id. § 921(a)(14).
Under the Holmes Youthful Trainee Act, an individual who committed a crime between
ages 18 and 26 may “plead[] guilty” to a criminal offense and, instead of “entering a judgment of
conviction,” the trial court may “assign that individual to the status of youthful trainee.” Mich.
Comp. Laws § 762.11(2). “A defendant assigned to youthful trainee status may, depending on
the possible sentence for the underlying offense, serve up to three years in custodial supervision,
up to one year in the county jail, or up to three years on probation.” Doe v. Mich. Dep’t of State
Police, 490 F.3d 491, 494 (6th Cir. 2007) (citing Mich. Comp. Laws § 762.13). The Act clarifies

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that an “assignment of an individual to the status of youthful trainee as provided in this chapter is
not a conviction for a crime.” Mich. Comp. Laws § 762.14(2).
While a trainee, the defendant’s criminal case remains pending and the defendant serves a
term of probation or custody. Id. § 762.13. After successfully completing the term, “the court
shall discharge the individual and dismiss the proceedings.” Id. § 762.14(1). While the trainee
remains in the program, however, the trial court “may at its discretion revoke [trainee] status any
time before the individual’s final release.” Id. § 762.12(1). If that happens, “an adjudication of
guilt is entered, and a sentence is imposed.” Id. § 762.12(3). The Act adds that an individual
who completes the diversion program and is released from youthful trainee status “shall not
suffer a civil disability or loss of right or privilege following his or her release from that status
because of his or her assignment as a youthful trainee.” Id. § 762.14(2). “The public policy
behind the [Act],” we have said, “is clear: to give youthful offenders a chance to wipe their
records clean provided that they do not violate their status as ‘youthful trainees.’” Adams v.
United States, 622 F.3d 608, 611 (6th Cir. 2010).
Rolon’s participation in the diversion program meant that he was “under indictment” and
thus a “prohibited person” for federal firearms purposes. On July 25, 2022, Michigan filed an
information charging Rolon with one count of carrying a concealed weapon, Information, People
v. Rolon, Case No. 22-000543-FH (Mich. 30th Jud. Cir. Ct. July 25, 2022), a crime “punishable”
by up to five years in prison, Mich. Comp. Laws § 750.227(3). That placed him “under
indictment” because he was subject to an “information . . . under which a crime punishable by
imprisonment for a term exceeding one year may be prosecuted.” 18 U.S.C. § 921(a)(14).
Rolon remained “under indictment” when officers caught him with a defaced firearm in
violation of federal law in January 2024. By that point, the Michigan judge had not “enter[ed] a
judgment of conviction.” Mich. Comp. Laws § 762.11. Instead, under the Holmes Youthful
Trainee Act, the state court assigned Rolon to youthful trainee status and deferred conviction and
entry of judgment. Order of Probation, People v. Rolon, Case No. 22-000543-FH (Mich. 30th
Jud. Cir. Ct. Oct. 10, 2022); Judgment of Sentence, People v. Rolon, Case No. 22-000523-FH
(Mich. 30th Jud. Cir. Ct. Oct. 10, 2022); see also Mich. Comp. Laws § 762.11. He remained in
that status, supervised by probation, when he possessed the illegal gun.

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Rolon’s trainee status left him “under indictment.” Nothing dissolved or withdrew the
original information filed by Michigan prosecutors. Nor had the court entered any judgment on
it. As Rolon acknowledges, “the charge remain[ed] pending.” Appellant’s Br. 8. Rolon does
not point to anything in the record indicating that the information was dismissed or lapsed. Had
he completed the trainee program successfully, the Michigan court would have “dismiss[ed] the
proceedings.” Mich. Comp. Laws § 762.14(1). But while Rolon was still a trainee, the
Michigan court could at “any time” revoke that status and “enter an adjudication of guilt” under
the original information. Id. § 762.12(3); see also People v. Trinity, 471 N.W.2d 626, 627
(Mich. Ct. App. 1991).
Any such conviction would come under the original information. Michigan law does not
require a new information. A court’s “discretion[ary]” revocation of the trainee program at “any
time,” Mich. Comp. Laws § 762.12(1), “will automatically result in a conviction and
sentencing,” Carr v. Midland Cnty. Concealed Weapons Licensing Bd., 674 N.W.2d 709, 713
(Mich. Ct. App. 2003). When that happens, the prosecution proceeds “on the original
information, because the assignment to youthful trainee status merely acts to suspend the
criminal proceedings.” Trinity, 471 N.W.2d at 627; see also Mich. Ct. R. 6.112(B) (“A
prosecution must be based on an information or an indictment.”); People v. Herron, 628 N.W.2d
528, 539 (Mich. 2001).
Rolon, in short, faced an active felony charge without a judgment of guilty or not guilty
when he possessed the illegal gun. His guilty plea was held open while he participated in the
diversion program, and the guilty plea and information would be dismissed if he successfully
completed the program. See Doe, 490 F.3d at 494.
Other circuits have reached the same conclusion in analyzing similar state programs. In
United States v. Saiz, the Tenth Circuit considered whether a defendant was “under indictment”
for § 922(n)’s purposes with respect to a New Mexico diversion program in which the defendant
pleaded guilty and “the [state] court entered a conditional discharge order, under which [the
defendant] was placed on probation without being adjudicated guilty of the crimes.” 797 F.3d
853, 854 (10th Cir. 2015). The court answered yes. Id. at 856. As Judge Tymkovich explained,
“[t]he charges in an indictment are not extinguished upon the guilty plea” because, “[i]f the

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indictment dissipated at the time of the guilty plea, there would be no more charges to dismiss
and no chance of a future conviction” if the individual failed to satisfy the requirements of the
diversion program. Id. at 856–57. New Mexico’s diversion program, like Michigan’s, “simply
prolongs the life of the indictment.” Id. at 857.
The Fifth Circuit took a similar approach in United States v. Valentine, 401 F.3d 609 (5th
Cir. 2005). At issue was a Texas diversion program in which the defendant pleaded guilty and
received “deferred adjudication” while on probation. Id. at 612, 614–15. Because the “deferred
adjudications leave a charge pending against the defendant,” the court held that they leave the
defendant “under indictment.” Id. at 616. We agree.
B.
Rolon sees things differently. He insists that, while on probation as part of the youthful
trainee program, he was “already serving a sentence” and thus “[t]he indictment” must have been
“extinguished.” Appellant’s Br. 10. But that characterization of the program contradicts
Michigan law, which says that the “assignment of an individual to the status of youthful
trainee . . . is not a conviction for a crime.” Mich. Comp. Laws § 762.14(2). The information
lives on to permit the trial court to enter judgment on the guilty plea on the original information
if the trainee commits a crime or the court elects to revoke the program at its discretion. See
Trinity, 471 N.W.2d at 627.
Rolon points to case law treating Michigan youthful offender status as a conviction in
other contexts. We have said that pleading guilty under Michigan’s youthful trainee program, to
use one example, “qualifies as a prior conviction for federal sentencing purposes” when
determining a defendant’s criminal history. See Adams, 622 F.3d at 612. But that does not
change anything. That setting and today’s setting, we have explained, involve “two different
issues.” United States v. Thompkins, No. 21-2904, 2022 WL 3151810, at *3 (6th Cir. Aug. 8,
2022) (applying law-of-the-case doctrine). Whether participating in the trainee program
qualifies as being “under indictment” for substantive criminal liability under 18 U.S.C. § 922(n)
does not depend on whether a “[Holmes Youthful Trainee Act] guilty plea qualified as a

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‘conviction’ for purposes of the federal sentencing Guidelines.” Id. Those are “two distinct
questions.” Id.
Michigan law draws the same distinction. A “[c]onviction” includes “[a]ssignment to
youthful trainee status” when calculating a defendant’s criminal record under Michigan’s
sentencing scheme. Mich. Comp. Laws § 777.50(4)(a)(i); see Adams, 622 F.3d at 612;
Thompkins, 2022 WL 3151810, at *2 n.1. But that status does not count as “a conviction for a
crime” for other purposes. Mich. Comp. Laws § 762.14(2). Because we must look to state law
to determine whether a defendant has a previous “conviction” for criminal liability under
§ 922(g), 18 U.S.C. § 921(a)(20), the reality that Michigan does not treat trainee status as a
conviction for criminal liability purposes indicates that a trainee remains “under indictment” for
liability under § 922(n). Michigan courts agree that the diversion program merely “suspend[s]
the criminal proceedings” so that a conviction after a defendant violates the terms of the program
comes “on the original information,” which remained pending. Trinity, 471 N.W.2d at 627.
This distinction also makes sense. Michigan created the youthful trainee program to
“give youthful offenders a chance to wipe their records clean.” Adams, 622 F.3d at 611. For
these reasons, Michigan law, together with federal law, does not burden trainees who
successfully complete the program with the loss of privileges and expanded criminal liability
associated with a felony “conviction.” But at the same time, it does not require us to close our
eyes to the reality of the defendant’s prior guilty plea to a felony information under the trainee
program when calculating his criminal history for sentencing after he has committed another
offense.
An identical result did not dissuade the Fifth Circuit. It treats a Texas “deferred
adjudication” as a “prior conviction” when calculating a defendant’s criminal history under the
Sentencing Guidelines, United States v. Stauder, 73 F.3d 56, 57 (5th Cir. 1996) (per curiam)
(quotation omitted), and under the statute we considered in Adams, see United States v. Cisneros,
112 F.3d 1272, 1282 (5th Cir. 1997) (addressing 18 U.S.C. § 841(b)(1)). At the same time, the
Fifth Circuit agreed that a “deferred adjudication” leaves a defendant “under indictment” for
§ 922(n)’s purposes. Valentine, 401 F.3d at 616.

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The same holds true in the immigration context. Rolon points to two cases where we
applied Chevron deference to an agency’s interpretation of the Immigration and Nationality Act
to include Michigan youthful trainee status as a “conviction” for purposes of that law. See
Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005); Hanna v. Holder, 740 F.3d 379, 391–92
(6th Cir. 2014). Those cases, again, considered a “different issue.” Thompkins, 2022 WL
3151810, at *2. The Fifth Circuit, too, shares our perspective. It held that a Texas “deferred
adjudication” counts as a “conviction” under the same provision of the Immigration and
Nationality Act at issue in Uritsky and Hanna before reaching its conclusion that the same
“deferred adjudication” was an “indictment” under § 922(n). See Moosa v. I.N.S., 171 F.3d 994,
1006 (5th Cir. 1999) (analyzing 8 U.S.C. § 1101(a)(48)); Valentine, 401 F.3d at 616.
We doubt, for what it is worth, that Rolon’s preference for being treated as a convict
rather than someone under indictment would make a difference. Recall that the relevant question
is whether Rolon is a “prohibited person.” U.S.S.G. § 2K2.1(a)(4)(B). He can fall into that
bucket as an individual “under indictment” under § 922(n) or as a convicted felon under
§ 922(g)(1). Id. § 2K2.1 cmt. 3. If Rolon’s youthful trainee status counted as a conviction
instead of an indictment, he would be a “prohibited person” under § 922(g)(1) instead of
§ 922(n) and the same offense-level enhancement would apply. Although Rolon argued below
that his Michigan concealed-weapon charge would not count as a felony conviction because the
Holmes Youthful Trainee Act limited the state court to imposing a jail term of one year, he
overlooks the reality that the Act allows the Michigan court to revoke trainee status “any time”
“at its discretion” and to sentence him up to the statutory maximum. Mich. Comp. Laws
§ 762.12(1). That maximum is five years. Id. § 750.227. Rolon, as a result, would have been
convicted of a crime “punishable” by imprisonment for more than a year, making him eligible
for the enhancement anyway.
Rolon seeks to distinguish the Fifth Circuit’s decision in Valentine by pointing out that
the Texas statute did not require an adjudication of guilt. But that describes rather than
distinguishes the Michigan program. Michigan courts also do not “enter[] a judgment of
conviction” after a defendant pleads guilty under the trainee program. Mich. Comp. Laws

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§ 762.11. Rolon admits as much: “Under [the trainee program], an eligible defendant may plead
guilty to the charged offense without a formal adjudication of guilt.” Appellant’s Br. 8.
Rolon directs us to United States v. Hill, 210 F.3d 881, 884 (8th Cir. 2000), in which the
Eighth Circuit held that the defendant’s suspended sentence under Missouri law didn’t count as
being “under indictment” for the purposes of § 922(n). Rolon fails to explain why Missouri’s
“suspended sentence” scheme matches Michigan’s youthful trainee program. See id. In that 10-
paragraph decision, the court did not fully explain how the Missouri program worked. It remains
unclear whether Missouri law specifies that “suspended sentences” are not convictions, as
Michigan law does for its youthful diversion program. See Valentine, 401 F.3d at 615–16
(suggesting that the Missouri program differed from the Texas diversion program and, by
extension, the Michigan diversion program). And it remains unclear why the Eighth Circuit
panel thought that satisfaction of the notice requirement was the only purpose of an indictment
under Missouri law that mattered. See Hill, 210 F.3d at 884; see also Trinity, 471 N.W.2d at
627; Mich. Ct. R. 6.112(B); Herron, 628 N.W.2d at 539. The Tenth Circuit, at all events,
convincingly rejected the Eighth Circuit’s brief reasoning because it could “find no support for
the proposition that a defendant is no longer subject to an indictment after he pleads guilty and
before he is adjudged guilty.” Saiz, 797 F.3d at 857. Michigan’s program, like the New Mexico
one at issue in Saiz, “simply prolongs the life of the indictment.” Id.; see also Trinity, 471
N.W.2d at 627. A contrary conclusion would create tension with the reality “that the defendant
is never convicted unless he violates the terms” of the trainee program or the state judge revokes
the program. Saiz, 797 F.3d at 857. Both Michigan’s and New Mexico’s programs “exist[]
precisely to give a defendant a chance to avoid a finding of guilt, while preserving the threat
posed by the indictment until the completion of probation.” Id.
We affirm.

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