Joseph Carey plead guilty to conducting an illegal gambling business in 2003. As a convicted felon he is ineligible to possess a gun. In Heller the Supreme Court specifically excluded convicted felon from those who could possess weapons.

Carey now wants to have a gun. Therefore he moved in the United States District Court to expunge his record. The motion was denied, without a hearing, on the basis that the court did not have jurisdiction.

Carey appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit held that “[a]n order on a motion to expunge a conviction is within the equitable jurisdiction” of the District Court. Therefore the proper action for the Sixth Circuit to take is to return the case to the District Court for it to consider whether or not, using its equitable jurisdiction it should grant the motion to expunge. But instead the Sixth Circuit affirmed the District Court decision saying that the District Court properly used its discretion in denying Carey a hearing and in denying his motion. The problem is that the District Court never used its discretion in denying the motion since it wrongly decided that it did not have jurisdiction.

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.