NINTH CIRCUIT RULES THAT IDAHO PARDON COUNTS TOWARDS FEDERAL GUIDELINES CRIMINAL HISTORY DETERMINATION

The Ninth Circuit Court of Appeals ruled yesterday that an Idaho conviction for which the defendant received a pardon under Idaho law remains a prior conviction for the purpose of the Sentencing Guidelines.

Clinton DeWitt Bays, Jr. pleaded guilty to a charges of being a drug user in possession of a firearm and possession with intent to distribute methamphetamine. He was sentenced to 78 months in the Federal Penitentiary and he appealed claiming that the District Court judge wrongly considered 1992 convictions in Idaho for two counts of vehicular manslaughter and one count of aggravated driving under the influence. The state charges were pardoned in 2007 by State of Idaho Commission of Pardons and Parole. The pardon restored “all civil, political, and other rights enjoyed prior to the commission of the crime.”

Section 4A1.2(j) of the United States Sentencing Guidelines
. . . states that sentences for expunged convictions are not included when determining a defendant’s criminal history category. U.S. Sentencing Guidelines Manual § 4A1.2(j) (2008). Application Note 10 to section 4A1.2 states, however, that previous convictions which are “set aside or . . . pardoned for reasons unrelated to innocence or errors of law” are to be counted. Id. § 4A1.2 cmt.
n.10.

The Ninth Circuit ruled that the Idaho pardon was not an expungement for the purpose of the Guidelines because it was not a complete removal from Bays’ criminal record. Nor was it necessarily unrelated to innocence or errors of law. Rather it was given in order to restore his civil rights and to remove the stigma associated with a conviction. As such it is not an expungement under the Guideline and it can be used to determine Bays’ criminal history. In fact Idaho has a separate expungement statute which allows a defendent to petition the court for an expungement that vacates the conviction and it becomes a nullity. While this statute was not before the Ninth Circuit it is likely that an expunged conviction under this statute would not count in determining a criminal history score.

The one thing that is certain is that each state has different pardoning and expungement statutes. Each pardon statute and each expungement statute must be considered separately to determine whether it is exempt from the criminal history score granted as part of a guidelines determination.