NOT RECOMMENDED FOR PUBLICATION File Name: 20a0214n.06
Case No. 19-5279
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 15, 2020 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) KENTUCKY RAMIRO RICO DE LEON, ) ) Defendant-Appellant. )
BEFORE: CLAY, COOK and WHITE, Circuit Judges.
COOK, Circuit Judge. After Ramiro Rico De Leon pled guilty to a controlled substance
offense, the district court sentenced him to prison followed by supervised release. De Leon
challenges both the court’s computation of his sentencing range and a post-release condition.
Because the court neither abused its discretion in calculating the sentencing range nor plainly erred
in imposing the condition, we AFFIRM.
I.
A. De Leon’s Criminal History Score
In calculating De Leon’s criminal history score, the district court assessed one point for a
2013 Kentucky controlled substance conviction that Kentucky later voided. De Leon posits that
the court abused its discretion by counting that voided point in sentencing him. Case No. 19-5279, United States v. De Leon
The Sentencing Guidelines assign at least one criminal history point to “each prior
sentence.” U.S.S.G. § 4A1.1. “The term ‘prior sentence’ means any sentence previously imposed
upon adjudication of guilt.” U.S.S.G. § 4A1.2(a)(1). But “[s]entences for expunged convictions
are not counted.” U.S.S.G. § 4A1.2(j). Did Kentucky expunge De Leon’s 2013 conviction (and
sentence)? If so, the district court abused its discretion by including it. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Shor, 549 F.3d 1075, 1077 (6th Cir. 2008).
We review a district court’s criminal history score calculations for abuse of discretion,
accepting factual findings unless clearly erroneous and scrutinizing anew its legal conclusions.
Gall, 552 U.S. at 51–52; United States v. Rayyan, 885 F.3d 436, 440 (6th Cir.), cert. denied, 139 S.
Ct. 264 (2018); United States v. Talley, 470 F. App’x 495, 496 (6th Cir. 2012).
De Leon contends that Kentucky effectively expunged his conviction when it “void[ed]”
and “seal[ed]” it, arguing that a void conviction “is tantamount to” and “equivalent to an
expunged” one. The Government disagrees, maintaining that Kentucky’s voiding here did not
equate to “expunging” under the Guidelines.
Because the answer to the question is not self-evident from the text of the Guideline, we
consult the Guidelines Commentary that addresses the differing import accorded to various
procedures by which states may “set aside” prior convictions. See U.S.S.G. § 4A1.2, cmt. n.10.
The Commentary confirms the distinction the drafters accorded to post-conviction indulgences
“for reasons unrelated to innocence or errors of law.” Id. That is, if the convicting jurisdiction
later grants a pardon, the Commentary explains that those convictions are to be counted in the
defendant’s criminal history score, but expunged convictions (innocence or legal error established)
are not counted. Id.
-2- Case No. 19-5279, United States v. De Leon
Our cases concerning which type of prior convictions merit criminal history points scoring
adhere to this Commentary by distinguishing between those post-conviction developments driven
by guilt concerns, and those that stem from some form of indulgence. In Shor, Michigan sentenced
the juvenile defendant under a diversion program featuring no “civil disability or loss of right or
privilege.” 549 F.3d at 1076–78. We upheld the district court’s counting that conviction in the
criminal history score as within its discretion, referencing the “quite clear” Guidelines
Commentary “distinguish[ing] between” convictions that a jurisdiction expunged and those
retaining an “adjudication of guilt.” Id. at 1078 (citing U.S.S.G. § 4A1.2, cmt. n.10). Because
Steven Shor’s “adjudication of guilt” persisted under his diversion program, “the district court
properly counted” the conviction. Id. at 1077–78.
We made a similar distinction in United States v. Sturgill, 761 F. App’x 578 (6th Cir.),
cert. denied sub nom. Owens v. United States, 139 S. Ct. 2704 (2019). Though Kentucky
“expunged” three of Melissa Owens’s convictions, we upheld their inclusion in her criminal
history score because “Kentucky’s expungement procedure does not demand a showing of
innocence or legal error, and [the defendant] offered nothing at sentencing to show that such
considerations led to the expungements in her case.” Id. at 582–83.
For the same reasons, the district court sentenced within its discretion here. Yes, Kentucky
voided De Leon’s conviction. But the sentencing court found that he failed to establish that
Kentucky did so due to circumstances affecting validity or guilt. See United States v. French, 974
F.2d 687, 701 (6th Cir. 1992) (“The burden is upon the defendant to prove the invalidity and/or
unconstitutionality of the prior conviction.”). Indeed, according to the Commonwealth’s order,
Kentucky voided the conviction because De Leon “ha[d] successfully completed the terms of
treatment, probation or sentence[.]”
-3- Case No. 19-5279, United States v. De Leon
Well what about this court’s recent Havis decision, argues De Leon in response? He points
to the en banc opinion as instructing courts to avoid reliance on the Commentary to understand the
meaning of the Guidelines. But De Leon misreads the court’s decision in United States v. Havis,
927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). True, the court recognized that “the
application notes are interpretations of, not additions to, the Guidelines themselves.” Id. at 386
(quoting United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016)) (emphasis deleted). But the
court also explained that Commentary is binding when “the guideline which the commentary
interprets will bear the construction.” Id. (quoting Stinson v. United States, 508 U.S. 36, 46
(1993)). Because § 4A1.2, cmt n.10 explains the un-defined term “expunged,” and so conforms
to the permissible Commentary interpretation of the Guideline, we are bound to follow it. Id.;
United States v. Thomas, 933 F.3d 605, 610 (6th Cir. 2019) (noting that Commentary “helps
interpret” obstruction-of-justice Guideline by defining the term “obstructed”); United States v.
Buchanan, 933 F.3d 501, 514 n.2 (6th Cir. 2019) (finding Guidelines Commentary that “explains
the meaning of” an un-defined term “binding on federal courts under . . . Havis”). Havis, by
contrast, asked the Circuit to review Commentary that modified a Guideline by expanding an
existing definition. Havis, 927 F.3d at 386–87.
De Leon also attempts to distinguish Shor and Sturgill. He faults Shor for “[f]ocusing on
the prior adjudication of guilt” rather than the permissible “future use[s]” of the defendant’s
conviction under Michigan law. Federal courts, however, need not concern themselves with state
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0214n.06
Case No. 19-5279
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 15, 2020 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) KENTUCKY RAMIRO RICO DE LEON, ) ) Defendant-Appellant. )
BEFORE: CLAY, COOK and WHITE, Circuit Judges.
COOK, Circuit Judge. After Ramiro Rico De Leon pled guilty to a controlled substance
offense, the district court sentenced him to prison followed by supervised release. De Leon
challenges both the court’s computation of his sentencing range and a post-release condition.
Because the court neither abused its discretion in calculating the sentencing range nor plainly erred
in imposing the condition, we AFFIRM.
I.
A. De Leon’s Criminal History Score
In calculating De Leon’s criminal history score, the district court assessed one point for a
2013 Kentucky controlled substance conviction that Kentucky later voided. De Leon posits that
the court abused its discretion by counting that voided point in sentencing him. Case No. 19-5279, United States v. De Leon
The Sentencing Guidelines assign at least one criminal history point to “each prior
sentence.” U.S.S.G. § 4A1.1. “The term ‘prior sentence’ means any sentence previously imposed
upon adjudication of guilt.” U.S.S.G. § 4A1.2(a)(1). But “[s]entences for expunged convictions
are not counted.” U.S.S.G. § 4A1.2(j). Did Kentucky expunge De Leon’s 2013 conviction (and
sentence)? If so, the district court abused its discretion by including it. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Shor, 549 F.3d 1075, 1077 (6th Cir. 2008).
We review a district court’s criminal history score calculations for abuse of discretion,
accepting factual findings unless clearly erroneous and scrutinizing anew its legal conclusions.
Gall, 552 U.S. at 51–52; United States v. Rayyan, 885 F.3d 436, 440 (6th Cir.), cert. denied, 139 S.
Ct. 264 (2018); United States v. Talley, 470 F. App’x 495, 496 (6th Cir. 2012).
De Leon contends that Kentucky effectively expunged his conviction when it “void[ed]”
and “seal[ed]” it, arguing that a void conviction “is tantamount to” and “equivalent to an
expunged” one. The Government disagrees, maintaining that Kentucky’s voiding here did not
equate to “expunging” under the Guidelines.
Because the answer to the question is not self-evident from the text of the Guideline, we
consult the Guidelines Commentary that addresses the differing import accorded to various
procedures by which states may “set aside” prior convictions. See U.S.S.G. § 4A1.2, cmt. n.10.
The Commentary confirms the distinction the drafters accorded to post-conviction indulgences
“for reasons unrelated to innocence or errors of law.” Id. That is, if the convicting jurisdiction
later grants a pardon, the Commentary explains that those convictions are to be counted in the
defendant’s criminal history score, but expunged convictions (innocence or legal error established)
are not counted. Id.
-2- Case No. 19-5279, United States v. De Leon
Our cases concerning which type of prior convictions merit criminal history points scoring
adhere to this Commentary by distinguishing between those post-conviction developments driven
by guilt concerns, and those that stem from some form of indulgence. In Shor, Michigan sentenced
the juvenile defendant under a diversion program featuring no “civil disability or loss of right or
privilege.” 549 F.3d at 1076–78. We upheld the district court’s counting that conviction in the
criminal history score as within its discretion, referencing the “quite clear” Guidelines
Commentary “distinguish[ing] between” convictions that a jurisdiction expunged and those
retaining an “adjudication of guilt.” Id. at 1078 (citing U.S.S.G. § 4A1.2, cmt. n.10). Because
Steven Shor’s “adjudication of guilt” persisted under his diversion program, “the district court
properly counted” the conviction. Id. at 1077–78.
We made a similar distinction in United States v. Sturgill, 761 F. App’x 578 (6th Cir.),
cert. denied sub nom. Owens v. United States, 139 S. Ct. 2704 (2019). Though Kentucky
“expunged” three of Melissa Owens’s convictions, we upheld their inclusion in her criminal
history score because “Kentucky’s expungement procedure does not demand a showing of
innocence or legal error, and [the defendant] offered nothing at sentencing to show that such
considerations led to the expungements in her case.” Id. at 582–83.
For the same reasons, the district court sentenced within its discretion here. Yes, Kentucky
voided De Leon’s conviction. But the sentencing court found that he failed to establish that
Kentucky did so due to circumstances affecting validity or guilt. See United States v. French, 974
F.2d 687, 701 (6th Cir. 1992) (“The burden is upon the defendant to prove the invalidity and/or
unconstitutionality of the prior conviction.”). Indeed, according to the Commonwealth’s order,
Kentucky voided the conviction because De Leon “ha[d] successfully completed the terms of
treatment, probation or sentence[.]”
-3- Case No. 19-5279, United States v. De Leon
Well what about this court’s recent Havis decision, argues De Leon in response? He points
to the en banc opinion as instructing courts to avoid reliance on the Commentary to understand the
meaning of the Guidelines. But De Leon misreads the court’s decision in United States v. Havis,
927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). True, the court recognized that “the
application notes are interpretations of, not additions to, the Guidelines themselves.” Id. at 386
(quoting United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016)) (emphasis deleted). But the
court also explained that Commentary is binding when “the guideline which the commentary
interprets will bear the construction.” Id. (quoting Stinson v. United States, 508 U.S. 36, 46
(1993)). Because § 4A1.2, cmt n.10 explains the un-defined term “expunged,” and so conforms
to the permissible Commentary interpretation of the Guideline, we are bound to follow it. Id.;
United States v. Thomas, 933 F.3d 605, 610 (6th Cir. 2019) (noting that Commentary “helps
interpret” obstruction-of-justice Guideline by defining the term “obstructed”); United States v.
Buchanan, 933 F.3d 501, 514 n.2 (6th Cir. 2019) (finding Guidelines Commentary that “explains
the meaning of” an un-defined term “binding on federal courts under . . . Havis”). Havis, by
contrast, asked the Circuit to review Commentary that modified a Guideline by expanding an
existing definition. Havis, 927 F.3d at 386–87.
De Leon also attempts to distinguish Shor and Sturgill. He faults Shor for “[f]ocusing on
the prior adjudication of guilt” rather than the permissible “future use[s]” of the defendant’s
conviction under Michigan law. Federal courts, however, need not concern themselves with state
courts’ use of state convictions. Indeed, the Guidelines Commentary directs our attention away
from such considerations and toward a simple question: has the defendant proffered evidence of a
post-conviction determination of innocence or legal error? U.S.S.G. § 4A1.2, cmt. n.10. Here, as
in Shor, no.
-4- Case No. 19-5279, United States v. De Leon
His quarrel with Sturgill fares no better. De Leon points out that Kentucky voided his
conviction under different Kentucky statutes than used in Sturgill. If anything, this distinction
hurts De Leon’s case. The statute in Sturgill permits the “expungement” of certain convictions,
Ky. Rev. Stat. Ann. § 431.078, while the statutes here “void” convictions, Ky. Rev. Stat. Ann.
§§ 218A.275(8), 218A.276(8). These labels alone suggest that Kentucky never expunged De
Leon’s conviction. Plus, under Sturgill’s statute, a conviction “shall be deemed never to have
occurred,” Ky. Rev. Stat. Ann. § 431.078(6), while the provisions at bar here merely seal records
and make the void conviction “not be deemed a first offense” under Kentucky’s penal code, Ky.
Rev. Stat. Ann. §§ 218A.275(8)–(10), 218A.276(8)–(10). The district court thus proceeded within
its discretion in concluding that, even after Kentucky voided his conviction, De Leon’s
adjudication of guilt stands.
B. Supervised Release Condition
De Leon contends that the court imposed an unconstitutionally vague supervised release
condition when it barred him from “frequent[ing] places where controlled substances are illegally
sold, used, distributed or administered.” Because he failed to object to this condition at sentencing,
we review for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
First, a word about the Government’s view that De Leon’s challenge here is not ripe for
decision. As both parties acknowledge, when it “is mere conjecture” whether the Government will
ever enforce a condition, we lack jurisdiction to consider it. United States v. Lee, 502 F.3d 447,
450–51 (6th Cir. 2007). The Government sees De Leon’s challenge as unripe because he faces
mandatory deportation upon release and thus “is extremely unlikely to be subjected to the
condition.” De Leon counters that we may review the condition now because it imposes a
“mandatory” prohibition.
-5- Case No. 19-5279, United States v. De Leon
It seems this court has yet to decide whether a defendant facing deportation upon release
immediately may appeal a supervised release condition. Two other circuits have, and they found
review constitutionally permissible. The Ninth reasoned that because a supervised release
condition “is a part of the district court’s sentence, which is a final judgment subject to immediate
appeal,” “a defendant may challenge . . . [it on] direct appeal.” United States v. Rodriguez-
Rodriguez, 441 F.3d 767, 771–72 (9th Cir. 2006). So too the Tenth: “Conditions of supervised
release form a part of the criminal judgment and thus, in the Article III sense, a challenge to them
involves a genuine case or controversy because the judgment is a final court order binding on an
incarcerated defendant at the time of his appeal.” United States v. Vaquera-Juanes, 638 F.3d 734,
736 (10th Cir. 2011).
The Government contends that the Tenth Circuit case supports its position because the
Circuit dismissed the appeal as unripe. But as the Government recognizes, that resolution resulted
from prudential matters not affecting the question we consider here, i.e., our constitutional
jurisdiction to decide the issue. Vaquera-Juanes, 638 F.3d at 736; see also Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010). “[W]here, as here, the issue of ripeness
goes only to prudential considerations as opposed to constitutional concerns, we are free to
exercise jurisdiction over the case.” Rucci v. Cranberry Twp., 130 F. App’x 572, 576 n.7 (3d Cir.
2005); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1013 (1992); cf. Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 167 (2014) (explaining that “a federal court’s obligation to hear
and decide cases within its jurisdiction is virtually unflagging” (citation and internal quotation
marks omitted)). “[F]or reasons of finality and judicial economy,” Rucci, 130 F. App’x at 576 n.7,
we reach the merits of De Leon’s challenge.
-6- Case No. 19-5279, United States v. De Leon
As for the vagueness argument, both parties acknowledge that the challenged condition
lacks an explicit mens rea requirement. To De Leon, this renders the condition unconstitutionally
vague and “exposes [him] to strict liability for any violations.” The Government responds that a
“commonsense” reading of the challenged condition reveals “an implicit requirement that De Leon
have knowledge that a place he is frequenting is involved with drugs[.]” Because we review for
plain error, Vonner, 516 F.3d at 386, De Leon’s argument fails.
Even where a district court errs, it does not plainly err if it “lack[ed] binding case law that
answers the question presented,” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015), or
if other circuits split on the issue, United States v. Madden, 515 F.3d 601, 608 (6th Cir. 2008).
Both situations exist here.
This court issued one non-precedential decision addressing supervised release conditions
that don’t specify a mens rea. If anything, that case supports rejecting De Leon’s challenge. In
United States v. Smith, we rejected a similar challenge where the defendant objected to standard
conditions of supervision that the Northern District of Ohio had since clarified “to provide, among
other things, a ‘knowledge’ requirement.” 695 F. App’x 854, 858 (6th Cir. 2017). These changes
reflected corresponding revisions to the Guidelines that took effect in 2016. Id. (citing N.D. Ohio
Gen. Order No. 2016-24 App’x B; U.S.S.G. § 5D1.3(c)). In light of the intervening changes, we
declined to read the conditions at issue as imposing strict liability. Id. Here, De Leon’s judgment
shows that the Eastern District of Kentucky has likewise incorporated a knowledge requirement
into its standard conditions of supervision. Although the particular condition De Leon challenges
is a special condition and does not include an explicit knowledge requirement, as in Smith, it would
defy common sense to interpret it as imposing strict liability where it is otherwise clear that the
court has incorporated a mens rea requirement into its conditions of supervision.
-7- Case No. 19-5279, United States v. De Leon
And it seems other circuits split on this same issue of whether a condition of supervision
must specify a mens rea. The Seventh Circuit struck down a condition that, if “read literally,
improperly imposes strict liability because there is no requirement that [the defendant] know or
have reason to know or even just suspect that [prohibited] activities are taking place.” United
States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) (internal quotation marks omitted). But the
Ninth and Tenth Circuits upheld similar conditions because a “reasonable” person would
understand that they require knowledge of nearby controlled substances. See United States v.
Muñoz, 812 F.3d 809, 822–23 (10th Cir. 2016); United States v. Phillips, 704 F.3d 754, 768 (9th
Cir. 2012). Given this circuit split, the district court did not plainly err. Madden, 515 F.3d at 608.
II.
We AFFIRM.
-8-