FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30124
Plaintiff-Appellee, D.C. No.
v. 1:08-CR-00050-
CLINTON DEWITT BAYS, JR., BLW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Idaho
William F. Downes, Chief District Judge
for the District of Wyoming, Presiding
Submitted December 10, 2009*
Seattle, Washington
Filed December 17, 2009
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Roger T. Benitez,** District Judge.
Opinion by Judge Tallman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
16587
UNITED STATES v. BAYS 16589
COUNSEL
Dennis Benjamin, Nevin, Benjamin, McKay & Bartlett LLP,
Boise, Idaho, for the defendant-appellant.
Thomas E. Moss, United States Attorney, and Christian S.
Nafzger, Assistant United States Attorney, Boise, Idaho, for
the plaintiff-appellee.
16590 UNITED STATES v. BAYS
OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Clinton DeWitt Bays, Jr. pleaded
guilty to a charge of being a drug user in possession of a fire-
arm and a charge of possession with intent to distribute
methamphetamine. The district court calculated a criminal
history category of II for Bays and sentenced him to a 78-
month term of imprisonment on each count, to run concur-
rently. Bays timely appeals this sentence arguing that the dis-
trict court incorrectly calculated his criminal history category.
He argues that a pardon he received in 2007 from the State of
Idaho Commission of Pardons and Parole completely
expunged an earlier state conviction. Under section 4A1.2(j)
of the United States Sentencing Guidelines, expunged convic-
tions should not be calculated when determining a defendant’s
criminal history category. U.S. Sentencing Guidelines Manual
§ 4A1.2 (2008). We find that the pardon does not constitute
an expungement and the district court correctly considered the
prior state convictions when calculating Bays’s criminal his-
tory category. We affirm the sentence imposed by the district
court.
I
On March 12, 2008, Clinton DeWitt Bays, Jr. was charged
with various narcotics and firearms offenses in a nineteen-
count indictment. Pursuant to a Second Amended Rule 11
Plea Agreement, Bays pleaded guilty to one count of being a
drug user in possession of a firearm and one count of posses-
sion with intent to distribute methamphetamine. In return for
the guilty plea, the prosecution dismissed the remaining
counts of the indictment.
At the sentencing hearing for the federal firearm and drug
convictions, Bays argued that certain prior state convictions
should not be included when calculating his criminal history
UNITED STATES v. BAYS 16591
category because they were expunged by a pardon. In 1992,
an Idaho state court convicted Bays on two counts of vehicu-
lar manslaughter and one count of aggravated driving while
under the influence. Bays received a seven-year sentence for
the vehicular manslaughter convictions and a five-year sen-
tence for the aggravated driving under the influence charge,
with the sentences to run concurrently. On January 11, 2007,
the State of Idaho Commission of Pardons and Parole
(“Commission”) pardoned Bays. The pardon restored “all
civil, political, and other rights enjoyed prior to the commis-
sion of the crime.”
Section 4A1.2(j) of the United States Sentencing Guide-
lines (“Sentencing Guidelines”) states that sentences for
expunged convictions are not included when determining a
defendant’s criminal history category. U.S. Sentencing Guide-
lines Manual § 4A1.2(j) (2008). Application Note 10 to sec-
tion 4A1.2 states, however, that previous convictions which
are “set aside or . . . pardoned for reasons unrelated to inno-
cence or errors of law” are to be counted. Id. § 4A1.2 cmt.
n.10.
The district court rejected Bays’s arguments regarding the
effect of the pardon on the prior convictions, finding that the
pardon was granted to restore Bays’s civil liberties pursuant
to Article IV, Section 7 of the Idaho Constitution. As such,
the pardon fell under Application Note 10 and the prior con-
victions could be counted to declare Bays’s criminal history
category of II and to sentence him to two concurrent terms of
78-months imprisonment. The district court entered judgment
on March 13, 2009. Bays filed his timely notice of appeal on
March 20, 2009.
II
The question whether a prior conviction is counted under
the Sentencing Guidelines is reviewed de novo. United States
v. Felix, 561 F.3d 1036, 1040 (9th Cir.2009), cert. denied, 130
16592 UNITED STATES v. BAYS
S. Ct. 256 (2009); see also United States v. Newman, 912 F.2d
1119, 1123 (9th Cir. 1990) (distinguishing between the factual
determinations concerning a prior conviction, which are
reviewed for clear error, and the legal determination that the
conviction is within the scope of the Sentencing Guidelines,
which is reviewed de novo). Because Bays challenges
whether the district court correctly included his prior convic-
tions under the Sentencing Guidelines, not whether the prior
convictions actually occurred, we review the issue de novo.
[1] Although section 4A1.2(j) of the Sentencing Guidelines
clearly states that an expunged conviction cannot be counted
when calculating a defendant’s criminal history category, the
Sentencing Guidelines do not expressly define “expunged
conviction.” We have taken guidance from Application Note
10 to section 4A1.2, which draws a distinction between par-
doned convictions and expunged convictions. See United
States v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001), cert.
denied, 534 U.S. 969 (2001). The commentary in Application
Note 10 is “authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” Id. at 771 (quoting Stinson v.
United States, 508 U.S. 36, 38 (1993)).
[2] Application Note 10 states that prior convictions that
are set aside or 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,” are
to be counted in the criminal history category calculation.
U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.10. We
have interpreted this language to mean that expungement
requires a complete removal of the conviction from the defen-
dant’s record and that a limited remedy given for reasons
unrelated to innocence or errors of law may not equal an “ex-
punged conviction” for purposes of section 4A1.2(j). Hayden,
255 F.3d at 771 (examining California law to determine
“whether the relief afforded . . . is ‘expungement,’ or whether
it is a more limited remedy, afforded ‘for reasons unrelated to
UNITED STATES v. BAYS 16593
innocence or errors of law’ ”). We must examine the Idaho
Commission’s authority to grant pardons in order to define
the scope and purpose of the pardon given to Bays. See id.
The Commission derives its authority to grant pardons from
Article IV, Section 7 of the Constitution of the State of Idaho.
This provision states that the Commission has the power
“only as provided by statute, to grant commutations and par-
dons after conviction and judgment, either absolutely or upon
such conditions as they may impose.” Idaho Const. art. IV,
§ 7. The Idaho legislature implemented the constitutional
grant of authority by enacting Idaho Code section 20-240. The
statutory provision limits the types of sentences for which the
Commission can grant pardons and gives the Commission
rulemaking power over creating procedures for granting par-
dons. Idaho Code Ann. § 20-240.
[3] Although there are no Idaho cases discussing the scope
of pardons granted pursuant to this state constitutional and
statutory authority, the Supreme Court of Idaho has succinctly
defined “pardon” as used in Article IV, Section 7. In Standlee
v. Idaho, 538 P.2d 778, 781 (Idaho 1975), the state supreme
court pronounced that a pardon “does away with both the pun-
ishment and the effects of a finding of guilt.” Bays relies on
this language to argue that his state convictions have been
expunged. He argues that because the pardon eliminated the
punishment and effects of his convictions, the convictions
have been fully expunged.
[4] We do not read the Supreme Court of Idaho’s definition
so generously. In Hayden, we recognized that “expunge” is
synonymous with “erase” or “destroy” and that an “expunge-
ment of record” requires that the conviction be removed from
the defendant’s criminal record. 255 F.3d at 771 (citing
Black’s Law Dictionary 603 (7th ed. 1999)). The state
supreme court’s explanation of an Article IV, Section 7 par-
don does not state that the underlying convictions are erased
or removed from the defendant’s record. Rather, its explana-
16594 UNITED STATES v. BAYS
tion implies that the underlying conviction remains; it is sim-
ply the punishment and effects of the pardoned conviction
that are negated. We do not believe that the removal of the
punishment or effects of a conviction is extensive enough to
qualify as an expunged conviction for the purposes of section
4A1.2(j).
[5] In fact, the Idaho legislature has implemented statutory
procedures which enable a defendant to request that a prior
conviction be expunged.1 Idaho Code Ann. §§ 19-2604, 20-
525A. Idaho courts have discussed the relief afforded by these
statutory provisions. See Idaho v. Parkinson, 172 P.3d 1100,
1102-03 (Idaho 2007); Idaho v. Dorn, 94 P.3d 709, 711
(Idaho Ct. App. 2004). Sections 19-2604 and 20-525A require
that a defendant petition a state court for dismissal or
expungement of the underlying conviction. Idaho Code Ann.
§§ 19-2604, 20-525A. If the state court grants the requested
relief, the conviction is vacated and becomes a nullity.
Parkinson, 172 P.3d at 1102-03. It is treated as though the
judgment was never rendered and “there are no limits or con-
ditions on the rights defendant regains.” Id. at 1103. This
relief is more extensive than the mere removal of the punish-
ment and effects of a finding of guilt. Thus, a pardon granted
pursuant to Article IV, Section 7 does not constitute an
expungement.
[6] Additionally, Application Note 10 appears to specify
that a conviction is expunged only when relief is given
because of innocence or errors of law. Such relief would elim-
inate any reference to the conviction on the defendant’s
record, not just negate the effects of the conviction. The par-
don granted to Bays does not state that he is innocent or that
there were errors in the criminal proceedings. It merely
restores to Bays “all civil, political, and other rights enjoyed
1
The Court of Appeals of Idaho stated that the two statutes are the only
methods a defendant can use to have a conviction expunged. Idaho v.
Dorn, 94 P.3d 709, 711 (Idaho Ct. App. 2004).
UNITED STATES v. BAYS 16595
prior to the commission of the crime.” The fact that the par-
don restores civil liberties, but does not state that it is based
on innocence or errors of law, supports the conclusion that it
is exactly the type of pardon encompassed in Application
Note 10. Such a pardon should not preclude the prior convic-
tions from being included when calculating a defendant’s
criminal history category.
[7] Furthermore, the constitutional provision gives the
Commission authority to grant pardons “upon such conditions
as they may impose,” Idaho Const. art. IV, § 7, and the statu-
tory provision states the Commission may “attach such condi-
tions as it deems appropriate” to a pardon. Idaho Code Ann.
§ 20-240. The ability to attach conditions to a pardon inher-
ently includes the ability to revoke the pardon if the condi-
tions are violated. If the relief can be revoked, it does not
result in all reference to the conviction being erased, making
the relief more limited than expungement. Relief granted
because a defendant is innocent or because there were errors
in the criminal proceeding could not be qualified by the issu-
ing authority—the finding of innocence or errors of law
would prevent anyone from taking any further action based on
the conviction. Following the logic of Hayden, relief that is
more limited in scope than expungement falls within the pur-
view of Application Note 10 and should be counted when cal-
culating a defendant’s criminal history category. See Hayden,
255 F.3d at 771-72.
Bays also argues that his pardon is analogous to the relief
given in United States v. Hidalgo, 932 F.2d 805 (9th Cir.
1991). In Hidalgo, we found that the conviction was
expunged because the guilty verdict was vacated and the
underlying information was dismissed. Id. at 807. Addition-
ally, the California statute authorizing the relief released the
defendant “from all penalties and disabilities resulting from
the offense or crime for which he or she was committed.” Id.
(quoting Cal. Welf. & Inst. Code § 1772(a)). Finally, Califor-
16596 UNITED STATES v. BAYS
nia courts had consistently referred to the relief as “expung-
ing” the prior conviction. Id.
This case is distinguishable for several reasons. First, as
discussed above, the Idaho constitutional and statutory author-
ity underlying the relief does not erase all reference to the
prior convictions. Instead, the relief can be qualified by the
Commission. While the pardon reinstated Bays’s civil liber-
ties, it did not explicitly remove the prior convictions from his
record. Similarly, although the statute does not define the
extent of Bays’s relief, the language of the pardon does. The
Commission states that Bays is pardoned and restores his civil
and political rights; it does not state that the convictions are
vacated. This limited remedy is not similar to the extensive
release given in Hidalgo. Finally, the constitutional and statu-
tory provisions consistently refer to the relief as a “pardon.”
Idaho case law recognizes that there are statutory procedures
for requesting that a prior conviction be “expunged.” See Par-
kinson, 172 P.3d at 1102-03; Dorn, 94 P.3d at 711. However,
relief given pursuant to Article IV, Section 7 is still referred
to as a “pardon.” These distinctions from the California stat-
ute at issue in Hidalgo support our conclusion that Bays’s
prior Idaho convictions were pardoned, not expunged.
[8] A pardon given by the Commission under the authority
granted by Article IV, Section 7 of the Constitution of the
State of Idaho and section 20-240 of the Idaho Code is a lim-
ited remedy provided for the purpose of restoring civil rights
and liberties to a defendant. Application Note 10 to section
4A1.2 of the Sentencing Guidelines expressly directs federal
courts to count the convictions underlying these pardons in
criminal history category calculations. Thus, the district court
did not err when it counted Bays’s prior Idaho convictions in
the calculation of his criminal history category.
III
The pardon issued by the Commission did not afford a rem-
edy extensive enough to constitute an expungement under
UNITED STATES v. BAYS 16597
Sentencing Guidelines section 4A1.2(j). We hold that the dis-
trict court did not err in considering Bays’s prior Idaho con-
victions when calculating his criminal history category.
AFFIRMED.