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U.S. v. Davis

United States Court of Appeals, Ninth Circuit
Aug 28, 2001
17 F. App'x 652 (9th Cir. 2001)

Opinion


17 Fed.Appx. 652 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Brian L. DAVIS, Defendant-Appellant. No. 00-10616. D.C. No. CR-99-00219-LDG. United States Court of Appeals, Ninth Circuit. August 28, 2001

Submitted August 13, 2001 .

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant was convicted, in the United States District Court for the District of Nevada, Lloyd D. George, J., of possession and distribution of controlled substance, and he appealed sentence. The Court of Appeals held that counting of defendant's prior guilty plea conviction for domestic violence as diversionary disposition for sentencing purposes was not plainly erroneous.

Affirmed.

Page 653.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding.

Before HAWKINS, TASHIMA, and GOULD, Circuit Judges.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Brian L. Davis appeals his 135-month sentence, imposed following his guilty plea to possession and distribution of a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Davis contends that the district court miscalculated his sentence by including in his criminal history score a prior guilty plea conviction for domestic violence, treating it as a diversionary disposition under U.S. S.G. § 4A1.2(f). Because Davis failed to raise this claim below, we review for plain error. United States v. Scrivner, 114 F.3d 964, 966 (9th Cir.1997). We reject this contention because it lacks merit.

The uncontested presentence report reflects that as a result of Davis' prior guilty plea, he was sentenced to community service, two days in jail with credit for time served, counseling, a fine, and instructions to stay out of trouble for seven months. Sixteen months later, the guilty plea was withdrawn and the case was dismissed. Because nothing in the record establishes that Davis' conviction was set aside due to innocence or errors of law, or that it was expunged, we cannot say that the district court plainly erred in counting the domestic violence conviction as a diversionary disposition. U.S. S.G. § 4A1.2(f), cmt. n. 9 (stating that diversionary disposition resulting from finding or admission of guilt in a judicial proceeding is counted for sentencing purposes); see Skinner v. State, 113 Nev. 49, 930 P.2d 748, 749-50 (Nev.1997) (permitting withdrawal of plea on grounds unrelated to innocence); cf. United States v. Hayden, 255 F.3d 768, 774 (9th Cir.2001) (concluding that California procedure by which defendants can withdraw guilty plea after successful completion of probation does not result in "expunged conviction").

Nothing in this opinion prevents Davis from seeking to expunge the conviction in state court, then filing a motion in the district court to correct his sentence. See United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir.1999) (as amended) (holding that "a defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction").

AFFIRMED.


Summaries of

U.S. v. Davis

United States Court of Appeals, Ninth Circuit
Aug 28, 2001
17 F. App'x 652 (9th Cir. 2001)
Case details for

U.S. v. Davis

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Brian L. DAVIS…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 28, 2001

Citations

17 F. App'x 652 (9th Cir. 2001)