FILED
NOT FOR PUBLICATION APR 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50055
Plaintiff - Appellee, D.C. No. 2:03-cr-00570-TJH-9
v.
MEMORANDUM *
RAFAEL ALEMAN MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Submitted April 8, 2010 **
Pasadena, California
Before: PREGERSON and THOMPSON, Circuit Judges, and CONLON, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
The defendant, Rafael Aleman Martinez, appeals his sentence for conspiracy
to manufacture and distribute methamphetamine. The district court sentenced the
defendant to the 10-year mandatory minimum sentence under the United States
Sentencing Guidelines because he had a prior firearms conviction that rendered
him ineligible for safety valve relief under 18 U.S.C. § 3553(f). We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
In 1997, the defendant plead no contest to exhibiting a firearm in violation
of California Penal Code § 417(A)(2). In 2004, the defendant plead guilty to
conspiracy to manufacture and distribute methamphetamine in federal court. After
his guilty plea, but prior to his sentencing for the methamphetamine conviction, the
defendant filed a “Petition for Expungement,” pursuant to California Penal Code §
1203.4, for his 1997 firearms conviction. The Los Angeles Superior Court granted
the Petition, “sett[ing] aside and vacat[ing]” the defendant’s guilty plea for the
firearms conviction.
The defendant contends that the district court erred in concluding that he
was ineligible for safety valve relief because of his prior firearms conviction.
According to the defendant, because his prior firearms conviction was “expunged”
under California Penal Code § 1203.4, it could no longer be counted as part of his
criminal history under the Sentencing Guidelines, and he was therefore entitled to
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safety valve relief. See U.S.S.G. § 4A1.2(j) (“Sentences for expunged convictions
are not counted . . . .”).
In Alba-Flores, however, we confirmed that California Penal Code “section
1203.4 relief does not result in an expungement” for the purpose of safety valve
relief under the Sentencing Guidelines. 577 F.3d 1104, 1108 (9th Cir. 2009); see
also United States v. Hayden, 255 F.3d 768, 774 (9th Cir. 2001) (“A conviction set
aside pursuant to California Penal Code section 1203.4 is not ‘expunged’ under
Sentencing Guideline § 4A1.2(j).”); United States. v. Stoterau, 524 F.3d 988, 1001
(9th Cir. 2008) (same).
The Sentencing Guidelines make clear that where, as here, a prior conviction
is “set aside . . . for reasons unrelated to innocence or errors of law . . . [s]entences
resulting from such convictions are to be counted.” U.S.S.G. § 4A1.2, cmt. n.10;
see also id. at cmt. n.6. The defendant sought to set aside his prior firearms
conviction because he had “fulfilled the conditions of [his] probation.” Because
the defendant’s prior firearms conviction was not expunged or set aside under the
Sentencing Guidelines on the basis of innocence or legal error, it “remained
countable,” Alba-Flores, 577 F.3d at 1111, even after the California Court’s order
pursuant to California Penal Code § 1203.4.
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The defendant argues that Hayden, on which our decision in Alba-Flores
relied, is no longer good law, because after Hayden was decided, California added
the word “expungement” to its § 1203.4 order form. This argument lacks merit.
See Alba-Flores, 577 F.3d at 1108, 1111 n.14; see also Stoterau, 524 F.3d at 1001
(citing Hayden with approval).
AFFIRMED.
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