United States v. Sammy Dewayne Kammerdiener

945 F.2d 300, 91 Daily Journal DAR 11650, 91 Cal. Daily Op. Serv. 7580, 1991 U.S. App. LEXIS 22122, 1991 WL 183877

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 1991
• Docket: 90-30199
• Status: Published

Opinions

EUGENE A. WRIGHT, Circuit Judge:

We are faced with the question whether convictions set aside under the Federal Youth Corrections Act, 18 U.S.C. § 5021, repealed Pub.L. No. 473 § 218(a)(8), 98 Stat. 2027 (1984) (FYCA), may be considered in calculating a defendant’s criminal history category under the Sentencing Guidelines. Being bound by precedent, we conclude they may not be considered and reverse and remand for resentencing.

I

On February 26, 1990, Sammy Kammer-diener pleaded guilty to two counts each of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343. The sentencing court imposed a 27-month prison term with three years of supervised release. Restitution was also ordered.

The only issue here is the calculation of Kammerdiener’s criminal history. A three-point increase was assessed in his presen-tence report for a 1973 mail fraud conviction. The inclusion of this conviction raised his criminal history category from III to IV, increasing his sentencing range from 18-24 months to 24-30 months.

Kammerdiener timely objected to the presentence report on the grounds that the 1973 conviction was set aside under the FYCA and could not be added to his criminal history calculation. We review de novo the district court’s application of the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990).

II

The FYCA gave courts discretion to set aside youth convictions.¹ Kammerdiener argues that such a set aside is tantamount to an expungement of the conviction. Under the Guidelines an expunged conviction may not be included in a defendant's criminal history calculation. United States Sentencing Commission, Guidelines Manual, § 4A1.2(j) (Nov. 1990).²

This court, in United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991), recently addressed whether a set aside was an ex-pungement under section 4A1.2(j). Hidalgo was concerned with the effect of a conviction that was set aside under a California youth offender statute, which was similar to the FYCA.

In concluding that a set aside was an expungement for the purposes of the Guidelines, the Hidalgo court noted that:

The Federal Youth Corrections Act ... contained a provision which “automatically] set aside” a conviction if the offender was unconditionally discharged prior to the expiration of his or her sentence. In Tuten v. United States, 460 U.S. 660, 103 S.Ct. 1412, 75 L.Ed.2d 359 (1983), the Supreme Court sets out the purposes and legislative history of 18 U.S.C. § 5021 in a series of footnotes. Tuten, 460 U.S. at 664-65, notes 6-9, 103 S.Ct. at 1415, notes 6-9. The Court clearly understood the term “set aside" to mean “expunged” for purposes of the Act.

Id. at 807. This interpretation of Tuten was a key part of the court’s reasoning and enabled it to conclude that a set-aside conviction could not be counted under section 4A1.2(j).

Being bound by the Hidalgo court’s conclusion that a set aside is equivalent to an expungement for sentencing purposes, we hold that Kammerdiener’s prior conviction, set aside under the FYCA, may not be included in his criminal history calculation.

REVERSED and REMANDED for re-sentencing.

1 . 18 U.S.C. § 5021 provided:

(a) Upon the unconditional discharge by the commissioner of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the commission shall issue to the youth offender a certificate to that effect.

(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.

2 . U.S.S.G. § 4A1.2(j) provides:

Sentences for expunged convictions are not counted, but may be considered under § 4A1.3 (Adequacy of Criminal History Category).