USA v. Michael Dubovsky CR-99-37-B 01/24/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 99-37-B

Michael Dubovskv

MEMORANDUM

Before I sentence Michael Dubovsky, I must decide whether to

include in his criminal history calculation a prior possession of

marijuana charge that the sentencing judge initially continued

without a finding, later dismissed, and ultimately ordered

sealed. Dubovsky argues that this charge should not be counted

in determining his criminal history because it was expunged.

I. BACKGROUND

Dubovsky pleaded guilty in this court on May 16, 2000 to a

charge of conspiracy to distribute LSD between on or about

October 13, 1998 and on or about April 1, 1999. He is scheduled

to be sentenced on January 24, 2001. Dubovsky's Presentence Report ("PSR") states that he must be

sentenced to a 10-year prison term because the conspiracy charge

he pleaded guilty to involved more than 10 grams of a mixture

containing LSD, see

(b)(1)(A)(v), and Dubovsky has

too many criminal history points to claim the benefit of the

"safety valve" provided for in

(f).

The probation officer based his determination that Dubovsky

is ineligible for the safety valve on a 1996 possession of

marijuana charge.1 In May 1996, Dubovsky admitted to sufficient

facts to support a conviction on the charge in Milford,

Massachusetts District Court. Rather than finding Dubovsky

guilty, however, the sentencing judge continued the charge

without a finding until November 12, 1998, on the condition that

Dubovsky remain outside the state during the period of the

continuance. Nearly two years later, after Dubovsky had been

1 The probation officer assigned Dubovsky one criminal history point for the 1996 possession of marijuana charge, and two criminal history points because he was on unsupervised probation on the possession of marijuana charge when he engaged in the LSD conspiracy. The probation officer also assigned Dubovsky one criminal history point for a 1993 breaking and entering conviction. A defendant is ineligible for the safety valve if he has more than one criminal history point. See

5 5 3 (f) (1) (2000) .

- 2 - charged in this case, he filed a motion to seal all records

concerning the possession of marijuana charge. The state court

granted the motion on November 2, 2000.

If Dubovsky could claim the benefit of the safety valve, he

would be facing a sentence of between 46 and 57 months rather

than the 120-month sentence required by

(b)(1)(A).

II. ANALYSIS

A. The Sentencing Guidelines

The Sentencing Guidelines provide that a sentencing court

should not consider a conviction in determining a defendant's

criminal history if the conviction has been "expunged." U.S.S.G.

§ 4Al.2(j). Application Note 10 to § 4Al.2(j) elaborates on this

point by stating that

a number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may by pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted.

U.S.S.G. § 4A1.2, Commentary, Applic. N. 10.

- 3 - Three distinct approaches have emerged in the circuit courts

concerning when a dismissed or vacated conviction should be

treated as if it has been expunged. The prevailing view is that

a conviction that has been dismissed or vacated cannot be

considered to have been expunged unless the conviction was set

aside because of innocence or errors of law. See United States

v. Hines,

(10th Cir. 1998); United States

v. Cox,

(10th Cir. 1996); United States v.

Ashburn,

(5th Cir. 1994), reinstated in part

and vacated in part b y . United States v. Ashburn,

(5th Cir. 1994) (en banc); United States v. McDonald,

(D.C. Cir. 1993) . This approach is based on the

language of application note 10 which suggests this result.

The Second Circuit uses a different standard. In a line of

cases culminating in United States v. Matthews,

(2d

Cir. 2000), that court has determined that a dismissed or vacated

conviction will be deemed to have been expunged, regardless of

the reasons why the conviction was set aside, if the applicable

state law "eliminate[s ] all trace of the prior adjudication."

I d . at 548; see also United States v. Beaulieau,

(2d Cir. 1992).

- 4 - Finally, the Ninth Circuit has determined that a dismissed

or vacated conviction should be deemed to have been expunged even

though the conviction was set aside for reasons unrelated to

innocence or errors of law and state law does not eliminate all

trace of the adjudication that led to the conviction. See

United States v. Hidalgo,

(9th Cir. 1991); see

also United States v. Kammerdiener,

(9th Cir.

1991). The Ninth Circuit has declined to follow Application Note

10 because the court concluded that "[t]he commentary sheds

little light on the proper outcome and appears to be somewhat

internally contradictory." Hidalgo,

.

The First Circuit has not taken a definitive position on the

issue. See, e.g.. United States v. Fosher,

(1st

Cir. 1997) (declining to treat conviction discharged pursuant to

Federal Youth Corrections Act as an expunged conviction).

Accordingly, I examine Dubovsky's claim under all approaches.

B. Application

I cannot grant Dubovsky the relief he seeks under the

prevailing interpretation of § 4Al.2(j) because the sentencing

court did not dismiss the 1996 possession of marijuana charge and

seal his case either for errors of law or because he was

- 5 - innocent. In sealing the charge, the state court was acting

pursuant to Mass. Gen. Laws. Ann. ch. 94C § 34. This statute

authorizes a court to seal all records concerning certain drug

possession charges if: (1) the charge is the defendant's first

drug related conviction; (2) the court either continued the

charge without a finding to a date certain, or placed the

defendant on probation; and (3) the defendant did not violate

any condition of the continuance or probation.2 See Mass. Gen.

Laws. Ann. ch. 94C § 34. The obvious purpose of this sealing

provision is to give a defendant a fresh start. It has nothing

to do with the defendant's innocence or whether errors of law

were committed in the proceedings that led to his conviction.

Accordingly, I cannot treat the 1996 possession of marijuana

charge as an expunged conviction under the prevailing

interpretation of § 4Al.2(j).

Dubovsky also cannot claim relief under the Second Circuit's

view of § 4Al.2(j). Mass. Gen. Laws. Ann. ch. 94C § 34 does not

2 Dubovsky failed to inform the sentencing judge of the fact that he had been charged with another drug possession offence in 1993 that had been continued without a finding. See P.S.R. 1 3. If the state court judge had known of this fact, he could not have granted Dubovsky's motion to seal.

- 6 - permit a court to eliminate "all trace" of a defendant's prior

conviction. Instead, it requires the probation office to

maintain a record of the conviction "solely for the purpose of

use by the courts in determining whether or not in subsequent

proceedings such person qualifies under this section." Mass.

Gen. Laws. Ann. ch. 94C § 34. Because the probation office must

maintain a record of the conviction and is instructed to use it

for certain limited purposes, I cannot conclude that state law

eliminated "all trace of the prior adjudication." See, e.g.,

Matthews,

(Youthful offender conviction that

has been vacated, replaced by youthful offender finding, and

sealed has not been expunged because records are still available

to probation department for use in carrying out its duties).

Finally, while I could treat the 1996 marijuana possession

charge as an expunged conviction if I were to follow the Ninth

Circuit's view of the issue, I decline to do so because its

reasoning is foreclosed by binding Supreme Court precedent. In

Stinson v. United States,

(1993), the Supreme Court

directed the lower courts to apply the commentary to the

sentencing guidelines unless it violates the Constitution or a

federal statute or is a plainly erroneous interpretation of the

- 7 - guideline it seeks to explain. I d . at 45; see also United States

v. Burns,

(1st Cir. 1998). Dubovsky does not

contend that the commentary to § 4A 1 .2 is plainly erroneous,

unconstitutional, or in violation of federal law. Accordingly, I

am not free, as the Ninth Circuit suggests, to disregard the

commentary simply because it appears to be "internally

inconsistent."

III. CONCLUSION

For the reasons set forth in this memorandum, I determine

that Dubovsky's 1996 conviction for possession of marijuana

cannot be treated as an expunged conviction.

SO ORDERED.

Paul Barbadoro Chief Judge January 24, 2001

cc: Mark Howard, Esq. Paul Haley, Esq.