USA v. Hayden

• Decision Date: 12 April 2001
• Docket Number: PLAINTIFF-APPELLEE,No. 00-16042,DEFENDANT-APPELLANT,00-16042
• Citation: 255 F.3d 768
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. ALFONSO HAYDEN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 768

255 F.3d 768 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v.ALFONSO HAYDEN, DEFENDANT-APPELLANT.

No. 00-16042

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 12, 2001--San Francisco, California

Filed June 25, 2001

Kenneth D. Noel, of San Francisco, California, for the defendant-appellant.

John W. Kennedy, Assistant U.S. Attorney(argued), Robert S. Mueller, III, U.S. Attorney for the Northern District of California, J. Douglas Wilson, Chief, Appellate Section, of San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California William H. Orrick, Jr., Senior District Judge, Presiding D.C.Nos. CV-00-1196-WHO, CR-92-00001-1-WHO

Before: Diarmuid F. O'Scannlain and William A. Fletcher, Circuit Judges, and Robert J. Kelleher, District Judge.^*

O'scannlain, Circuit Judge

Opinion by Judge O'Scannlain

OPINION

We must decide whether a conviction "set aside " pursuant to the California probation statute is an "expunged" conviction under the United States Sentencing Guidelines.

I.

In a superseding indictment filed in the Northern District of California on August 27, 1991, the government charged Alfonso Hayden and his 16 co-defendants with 92 counts of cocaine and heroin trafficking, possession and use of firearms, passing counterfeit currency, and money laundering.On August 28, 1993, Hayden pleaded guilty to conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 846.Hayden's guilty plea was pursuant to a plea bargain, in which Hayden and the government stipulated to all of the pertinent Sentencing Guidelines factors, including a base offense level of 32 and a criminal history category of III.The parties agreed that the applicable sentencing range was 151 to 188 months, and jointly recommended a 15-year (180-month) sentence to the district court.The parties also agreed to waive their rights to appeal any sentence within that 151 to 188 month range.On September 30, 1993, the district court accepted Hayden's guilty plea, and sentenced him to a term of 15 years of imprisonment, to be followed by five years of supervised release.

On February 8, 1995, Hayden filed his first §§ 2255 habeas petition to set aside his judgment and sentence, and he filed an amended version of this petition on September 21, 1994.On January 31, 1996, the district court denied this petition, which argued that two of Hayden's prior convictions were invalid because he had not been represented by counsel.¹On September 17, 1996, Hayden filed an untimely notice of appeal from the district court order, and we dismissed that appeal for lack of jurisdiction on October 23, 1996.

On December 30, 1998, Hayden petitioned the Alameda County, California, Municipal Court(the "Municipal Court") to set aside his September 28, 1987 conviction for carrying a concealed weapon, pursuant to California Penal Code section 1203.4.The Municipal Court granted the petition on June 9, 1999.On December 31, 1998, Hayden filed a similar petition to dismiss his August 23, 1990 conviction for assault with a deadly weapon, and the Municipal Court granted this petition on July 30, 1999.²

On March 30, 2000 Hayden filed this second §§ 2255 petition, in which he argues for a recalculated sentence in light of the state orders setting aside these two prior convictions.The district court concluded that the state convictions were not "expunged" within the meaning of the Sentencing Guidelines, and held that Hayden did not establish his right to a recalculated sentence.Hayden filed a timely notice of appeal and motion for a certificate of appealability on April 26, 2000.The district court, noting that we have never discussed the use in sentencing of a conviction set aside pursuant to section 1203.4, issued Hayden a certificate of appealability on May 2, 2000.³

II.

Hayden argues that the state court orders setting aside his 1987 and 1990 convictions entitle him to review of his 1993 federal sentence, with a new sentence to be calculated based on an adjusted criminal history score which does not reflect these two convictions."[A]defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction."United States v. LaValle, 175 F.3d 1106, 1108(9th Cir.1999).

Sentencing Guidelines Manual§§ 4A1.2 governs the calculation of a defendant's criminal history, and states that, "Sentences for expunged convictions are not counted, but may be considered under §§ 4A1.3(Adequacy of Criminal History Category)."U.S. Sentencing Guidelines Manual§§ 4A1.2(j).The commentary to §§ 4A1.2 explains what is, and what is not, an "expunged conviction:"

A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g. , in order to restore civil rights or to remove the stigma associated with a criminal conviction.Sentences resulting from such convictions are to be counted.However, expunged convictions are not counted.

U.S. Sentencing Guidelines Manual§§ 4A1.2(j), cmt. n.10."The commentary in the Sentencing Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."Stinson v. United States, 508 U.S. 36, 38(1993).Applying the commentary's definition of "expunged convictions, "we must decide whether the relief afforded by California Penal Code section 1203.4 is "expungement," or whether it is a more limited remedy, afforded "for reasons unrelated to innocence or errors of law."

To "expunge" is "to erase or [to] destroy," and an "expungement of record" is "[t]he removal of a conviction (esp. for a first offense) from a person's criminal record."Black's Law Dictionary 603 (7th ed. 1999).The text of California Penal Code section 1203.4 describes a more limited form of relief:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation . . . the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. . . .However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.

Cal. Penal Code §§ 1203.4(a)(West 2001)(emphasis added).

The plain language of section 1203.4(a) indicates that the California courts may use convictions set aside pursuant to this statute when sentencing the petitioner if he is later convicted of another crime.The California courts have recognized that the statute"simply and justly provides that persons who have refused to profit by the grace extended to them upon the first offense shall, upon conviction of a subsequent felony, suffer the penalty of the law as prescribed for the punishment of all other offenders."People v. Hainline, 28 P.2d 16, 17-18(Cal.1993).Just last year, the California Court of Appeal held that a defendant whose conviction was set aside pursuant to section 1203.4 remained subject to prosecution for possession of a firearm by an ex-felon.SeePeople v. Frawley, 98 Cal. Rptr. 2d 555(Cal. Ct. App.2000).In reaching this conclusion, the Court of Appeal stated that,

[W]hile a number of courts have used forms of the word `expunge' to describe the relief made available by section 1203.4, the statute does not in fact produce such a dramatic result. . . .

Section 1203.4 does not, properly speaking, `expunge' the prior conviction.The statute does not purport to render the conviction a legal nullity.Instead it provides that, except as elsewhere stated, the defendant is `released from all penalties and disabilities resulting from the offense.'The limitations on this relief are numerous and substantial . . . .

Indeed, section 1203.4 contains a sweeping limitation on the relief it offers, stating that `in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.'This provision alone precludes any notion that the term `expungement' accurately describes the relief allowed by the statute.

Id. at 559-60(citations omitted; emphasis added).See alsoPeople v. Diaz, 49 Cal. Rptr. 2d 252(Cal. Ct. App.1996)(applying the statute's plain language to hold that a conviction set aside pursuant to section 1203.4 could be counted as a "strike" under California's "three strikes " law).

The California courts also have held that convictions set aside pursuant to section 1203.4 may be used in a variety of civil and evidentiary contexts, and the California legislature has authorized these uses via statute.For example, such convictions may be used to suspend a medical license, disbar an attorney, revoke a liquor license, and impeach a witness.SeeCrain v. Med. Bd. of Cal., 84 Cal. Rptr. 2d 586, 589(Cal. Ct. App.1999)(citingMeyer v. Bd. of Med. Examiners, 206 P.2d 1085, 1086-88(Cal.1949))...