Opinion
Argued and Submitted Oct. 18, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Jerry R. Albert, Esq., Bruce M. Ferg, Esq., Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.
Michael L. Brown, Esq., Law Office of Michael L. Brown, Tucson, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona; Hector C. Estrada, Magistrate Judge, Presiding. D.C. No. CR-01-00221-DCB-HC E.
Before: REINHARDT, RYMER, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Luke Frazier appeals the 60-month sentence he received after pleading guilty to
Page 852.
two drug charges. The district court found that Frazier had two prior state convictions that rendered him ineligible for the "safety valve" provision contained in 18 U.S.C. § 3553(f); accordingly, although it believed the sentence to be high, the district court sentenced Frazier to the applicable 60-month mandatory minimum term of imprisonment. On appeal, Frazier argues that his prior state convictions are invalid and therefore may not be counted under the Sentencing Guidelines, and thus for safety valve purposes. We review de novo the district court's decision on that question. United States v. Dominguez, 316 F.3d 1054, 1056 (9th Cir.2003).
In a motion before the Tuscon City Court, Frazier argued, inter alia, that his 2001 conviction was invalid because he had not been advised of the consequences of his plea. The Tuscon City Court "set aside" the 2001 conviction in response to this motion. We hold that the 2001 conviction may not be counted at federal sentencing. Under United States v. Guthrie, 931 F.2d 564 (9th Cir.1991), "[w]hen a state court vacates a defendant's prior state conviction, the sentence resulting from that conviction may not influence the defendant's criminal history score under the Guidelines.... Once the court vacates a conviction, that conviction expires in the eyes of the State.... [T]he [federal] district court may believe the state court's decision overturning the prior conviction is incorrect, but that is beside the point, for the Guidelines are concerned only with the state court's final determination, not with the soundness of its reasoning." Id. at 572.
Contrary to the dissent's suggestion, Nichols v. United States, 511 U.S. 738, 748, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), holds only that the failure to advise a criminal defendant of the consequences of his plea does not violate due process. Nichols does not hold that a state court may not set aside a conviction because of such failure or that, when it does, the conviction is not set aside for an "error of law."
The Arizona Supreme Court uses the terms "set aside" and "vacate" interchangeably. See, e.g., Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26, 32-33 (2004) (en banc). We, like the district court, find that the state court "vacated" Frazier's 2001 conviction when it "set aside" that conviction. The district court counted the conviction even though it recognized that the state court had "vacated" it, commenting that "the city court just blithely sets aside a valid conviction, and so I have to find [that point] count[s]." Earlier, it stated, "that just shows you how much we can rely on city court judges." We may not treat state court decisions so cavalierly. We conclude that the 2001 conviction may not be counted against Frazier, and Frazier is safety-valve eligible. Affording the state court decision the deference to which it is entitled under Guthrie, we reverse and remand to the district court for resentencing. In doing so, we do not reach the question whether Frazier's 2000 conviction is countable.
REVERSED AND REMANDED.
RYMER, Circuit Judge, dissenting.
I do not agree that when the state court "set aside" Frazier's 2001 conviction it "vacated" it in any way that counts under Application Notes 6 and 10 to U.S. S.G. § 4A1.2. To be canceled under the commentary, a conviction must have been overturned for legal error or innocence, or have been expunged. As Frazier did not show that his 2001 conviction was "set aside" or "vacated" for legal error, and his 2000 conviction was not constitutionally infirm, the district court's conclusion as to them and as to applicability of the safety valve should stand.
Innocence is not at issue. Frazier contended that his conviction was uncounseled, which certainly would be constitutional error, but the city court rejected that argument. He also argued that he was inadequately advised of the consequences of his conviction, but this, too, is no basis for vacating the plea. See Nichols v. United States, 511 U.S. 738, 748, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). The only other ground Frazier offered was that he would receive a less harsh sentence in federal court were it not for the conviction. Setting aside a conviction to remove a disability would be consistent with Arizona law, see Ariz.Rev.Stat. § 13-907, but not cause for disregarding it under the Guidelines.
Given these circumstances and the commentary, it does not matter that the Arizona Supreme Court uses the terms "set aside" and "vacate" interchangeably. The question is not what words are used, but what the judgment does. United States v. Guthrie, 931 F.2d 564, 572 (9th Cir.1991), is not to the contrary as it did not involve a claim that the set-aside was to remove a disability, and it does not purport to rewrite Application Notes 6 and 10 which clearly provide that only set-asides for reasons of legal error or innocence, and expungements, operate to cancel convictions. Nothing that Frazier presented to the district court indicates that the city court's set-aside was for legal error or that as a result of its decision, the conviction expired, or was expunged, in the eyes of Arizona. But regardless of whether "vacate" and "set aside" may be used interchangeably, the city court appeared to use the terms advisedly, not interchangeably, because it denied Frazier's motion to "vacate plea"--which it would not have done if there had been legal error--yet granted the motion to "set aside"--which it could do to remove a disability.
As the district court's finding with respect to Frazier's 2002 conviction was not clearly erroneous, he is ineligible for safety valve relief and I would affirm.