United States v. Cerverizzo

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60336

_____________________

LAWRENCE M. CERVERIZZO,

Defendant-Appellant,

v.

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________

January 29, 1996

Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:

Lawrence M. Cerverizzo appeals the sentence given him after

he pleaded guilty to one count of possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1).

Cerverizzo appeals on two grounds: first, that, in determining

his criminal history category, the district court improperly

included a prior conviction which was subject to expunction; and

second, that the government violated its plea agreement by

failing to make a motion for a downward departure from

Cerverizzo's mandatory minimum sentence pursuant to U.S.S.G. §

5K1.1. Finding no merit in Cerverizzo's arguments, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND

Lawrence M. Cerverizzo was arrested by a deputy sheriff at

the Kewanee Truck Scales in Lauderdale County, Mississippi. The

arrest followed a search of Cerverizzo's tractor-trailer rig1

prompted by a Public Service Commission employee's discovery of a

small amount of methamphetamine in the cab of the rig during a

safety inspection. In the course of the search, the deputy

sheriff discovered a large quantity of marijuana in the trailer

of the truck. Subsequent to Cerverizzo's arrest, police also

discovered a .25 caliber pistol in a suitcase in the sleeper

compartment of Cerverizzo's rig.

A three-count indictment charged Cerverizzo with (1)

possession with intent to distribute 178.4289 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1); (2) possession

of .59 grams of methamphetamine in violation of 21 U.S.C. §

844(a); and (3) carrying and using a firearm during and in

relation to a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1). Cerverizzo entered a plea of guilty to the first

count, and the second and third counts were dismissed.

Cerverizzo was sentenced to serve sixty months imprisonment and

four years of supervised release, and ordered to pay a $1000

fine.

In computing Cerverizzo's sentencing range under the

Sentencing Guidelines, the district court considered Cerverizzo's

1
The parties to this action dispute the ownership of the
tractor-trailer rig. However, the ownership of the rig is
irrelevant to this appeal.

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1989 conviction in La Paz County, Arizona, for possession of a

dangerous drug as part of his criminal history. Cerverizzo

objected to the consideration of this prior conviction on the

grounds that it was expungeable under Arizona law. However,

because Cerverizzo never took the steps required by Arizona law

to expunge the conviction, the district court overruled the

objection.

Prior to entry of the plea, Cerverizzo and the government

entered into a plea agreement under which the government agreed

to dismiss the counts of the indictment relating to

methamphetamine and firearm possession and to request a sentence

in the lowest 25% of the applicable sentencing guidelines range

determined by the court.

The trial court found the relevant sentencing guidelines

range to be fifty-one to sixty-three months. However, because

the offense which was the basis of this conviction involved more

than one hundred kilograms of marijuana, the court found that the

mandatory minimum sentence for the conviction was sixty months.

The government recommended a sixty-month sentence, which the

court imposed. Cerverizzo made no objection on the basis of the

government's recommendation before entry of judgment against him.

II. ANALYSIS

A. STANDARD OF REVIEW

"A district court's legal application of the Guidelines is

reviewed de novo . . . ." United States v. Esqueda-Moreno, 56

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F.3d 578, 580 (5th Cir. 1995). Thus, we conduct a de novo review

of the question of whether the district court erred in computing

Cerverizzo's criminal history category.

Cerverizzo never objected to the government's failure to

request a downward departure from the sentencing guidelines.

Because this complaint is raised for the first time on appeal, we

review it for plain error. United States v. Wilder, 15 F.3d

1292, 1301 (5th Cir. 1994). "The government's breach of a plea

agreement can constitute plain error." Id. at 1301. However,

under FED. R. CRIM. P. 52(b), plain error is only established when

the appellant demonstrates the following factors: (1) there was

an error; (2) the error was clear and obvious; and (3) the error

affected the substantial rights of the appellant. United States

v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc)

(citing United States v. Olano, 113 S. Ct. 1770, 1776-79 (1993)),

cert. denied, 115 S. Ct. 1266 (1995).

Furthermore, the decision to correct plain forfeited error

is within the sound discretion of the court of appeals. Olano,

113 S. Ct. at 1776. We "should correct a plain forfeited error

affecting substantial rights if the error `seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings'". Id. at 1779 (quoting United States v. Atkinson,

297 U.S. 157, 160 (1936)).

B. EXPUNCTION

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 Cerverizzo contends that his prior Arizona conviction for

possession of a dangerous drug should not have been considered in

calculating his criminal history category because the conviction

was expungeable under Arizona law. However, he admits that

neither he nor the attorney representing him in the Arizona

proceedings took the actions required under Arizona law to have

the conviction expunged.

The Sentencing Guidelines provide that "[s]entences for

expunged convictions are not counted" in calculating criminal

history category. U.S.S.G. § 4A1.2(j). While this court has not

previously addressed the issue, three other circuits have held

that the mere fact that a prior conviction is expungeable before

sentencing does not render the conviction expunged for purposes

of § 4A1.2. United States v. Varela, 993 F.2d 686, 692-93 (9th

Cir.), cert. denied, 114 S. Ct. 232 (1993); United States v. Cox,

934 F.2d 1114, 1124 (10th Cir. 1991); United States v. Bucaro,

898 F.2d 368, 372 n.6 (3rd Cir. 1990). Additionally, the Fourth

Circuit has arrived at the same conclusion in dicta. United

States v. Bagheri, 999 F.2d 80, 84-85 (4th Cir. 1993).

Cerverizzo relies on United States v. Johnson, 941 F.2d 1102

(10th Cir. 1991), for the proposition that his prior conviction

ought to be deemed expunged even though he failed to take the

steps required under Arizona law to effect expunction. In

Johnson, the court deemed the appellant's prior conviction

expunged in the absence of any affirmative act on the part of the

appellant to have the conviction expunged. Id. at 1112.

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However, in that case, the court construed the applicable

Oklahoma expunction statute2 to operate automatically because (1)

the language of the statute indicated that expunction was

mandatory, and (2) the statute enumerated no procedures that the

convicted person was required to follow in order to have a

conviction expunged. Id. at 1111-12.

The Arizona statute applicable in this case clearly does not

operate to expunge automatically convictions which meet its

criteria. The statute provides in relevant part

[E]very person convicted of a criminal offense may, upon
fulfillment of the conditions of probation or sentence and
discharge by the court, apply to the judge, justice of the
peace or magistrate who pronounced sentence or imposed
probation or such judge, justice of the peace or
magistrate's successor to have the judgment of guilt set
aside. The application to set aside the judgment may be made
by the convicted person or by his attorney or probation
officer authorized in writing. If the judge, justice of the
peace or magistrate grants the application, the judge,
justice of the peace or magistrate shall set aside the
judgment of guilt, dismiss the accusations or information
and order that the person be released from all penalties and
disabilities resulting from the conviction . . . .

ARIZ. REV. STAT. ANN. § 13-907 (West 1995). Unlike the Oklahoma

statute at issue in Johnson, the Arizona statute (1) appears to

make expunction discretionary, and (2) establishes that

affirmative steps on the part of the convicted person or a

representative are necessary to effect the expunction.

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"Upon completion of the probation term . . . the
defendant shall be discharged without a court judgment of guilt,
and the verdict or plea of guilty or plea of nolo contendere
shall be expunged from the record and said charge shall be
dismissed with prejudice to any further action." OKLA. STAT. ANN.
tit. 22, § 991c (West 1986) (emphasis added).

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 Cerverizzo relies upon § 13-912 of the Arizona Revised

Statutes3, which provides for the automatic restoration of a

first-time felony offender's civil rights, in support of his

position that § 13-907 operates automatically. However, the fact

that § 13-912 operates automatically does not indicate that § 13-

907 also operates automatically. First, § 13-912 does not

mention expunction of prior convictions, and is thus not directly

applicable. Second, any inference of a legislative intent that §

13-907 is to operate automatically which might otherwise be drawn

from the language of § 13-912 is negated by the discretionary

language in § 13-907.

Thus, because Cerverizzo failed to follow the procedure

required by Arizona law to have his prior conviction expunged,

the conviction has not been expunged and may be used in

calculating his criminal history category for purposes of the

present conviction. Accordingly, we find Cerverizzo's first

point of error without merit.

C. PLEA AGREEMENT

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The statute provides in relevant part

Upon completion of the term of probation, or upon absolute
discharge from imprisonment, and upon the completion of
payment of any fine or restitution imposed, any person who
has not previously been convicted of any other felony shall
automatically be restored any civil rights which were lost
or suspended by the conviction.

ARIZ. REV. STAT. ANN. § 13-907 (West 1995).

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 Cerverizzo next contends that the government failed to

satisfy its duties under the plea agreement because it did not

request a downward departure from the mandatory minimum sentence

pursuant to U.S.S.G. § 5K1.1. Whether the government has

violated a plea agreement is a question of law hinging upon

"whether the government's conduct is consistent with the parties'

reasonable understanding of the agreement." United States v.

Hernandez, 17 F.3d 78, 80-81 (5th Cir. 1994) (internal quotations

and footnotes omitted).

Under the plea agreement, the government agreed to recommend

a sentence "within the lowest 25% of the applicable sentencing

guidelines range as computed by the Court." The district court

found that Cerverizzo's criminal history category was two and

that his offense rating was twenty-three. The sentencing range

ordinarily available for an offender with Cerverizzo's criminal

history category and offense rating was fifty-one to sixty-three

months. U.S.S.G. ch. 5 pt. A (Sentencing Table). However,

because Cerverizzo's conviction involved more than one hundred

pounds of marijuana, he was subject to a mandatory minimum

sentence of sixty months in accordance with 21 U.S.C. §

841(b)(1)(B).

Cerverizzo argues that the "applicable sentencing guideline

range" within the meaning of the plea agreement was fifty-one to

sixty-three months, which would thus place the sixty-month

sentence requested by the government outside the bottom 25% of

the range. The government argues that the "applicable sentencing

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guideline range" as determined by the court was sixty to sixty-

three months, and that it thus fulfilled the plea agreement by

requesting a sentence of sixty months.

The only arguable basis for Cerverizzo's interpretation of

the plea agreement stems from the language of U.S.S.G. § 5G1.1,

which states that whenever a mandatory minimum sentence is within

the applicable guideline range, "the sentence may be imposed at

any point within the applicable guideline range, provided that

the sentence . . . is not less than the statutorily authorized

minimum sentence." Under this argument, the language might be

construed as establishing that, where a mandatory minimum

sentence falls within the applicable guideline range, the

applicable guideline range itself does not change, but rather the

portion of the guideline range within which the sentence may be

imposed is limited. Under such a construction, the government

would still be required to request a sentence in the lower 25% of

the fifty-one to sixty-three month range, which would necessitate

a request for a downward departure from the mandatory minimum.

However, even if we construe arguendo the plea agreement as

requiring the government to request a sentence within the lowest

25% of the fifty-one to sixty-three month range, no basis for

reversal exists because the error in this case does not affect a

substantial right of Cerverizzo. "[I]n most cases, the affecting

of substantial rights requires that the error be prejudicial; it

must affect the outcome of the proceeding." Calverly, 37 F.3d at

164. In this case, the error could not have affected the length

9
of Cerverizzo's sentence because the district court could not

have sentenced him to less than the statutorily mandated sixty-

month minimum.

Cerverizzo contends that the plea agreement required the

government to request a downward departure from the mandatory

minimum sentence pursuant to U.S.S.G. § 5K1.1. Section 5K1.1

states

Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or
prosecution of another person who has committed an offense,
the court may depart from the guidelines.

Downward departure from a mandatory minimum sentence is only

appropriate "for the purpose of reflecting a defendant's

substantial assistance." United States v. Alvarez, 51 F.3d 36,

39 (5th Cir. 1995).

In this case, Cerverizzo provided the government with no

assistance whatsoever in prosecuting another person. Thus, even

if the government had requested a downward departure from the

mandatory minimum, the district court would have been required to

deny the request and impose the mandatory minimum sentence.

Cerverizzo contends that United States v. De la Fuente, 8

F.3d 1333 (9th Cir. 1993), provides support for his position. In

that case, the Ninth Circuit held that, where the government

agreed to recommend a sentence at the low end of the defendant's

guideline range of forty-one to fifty-one months and the

defendant faced a five-year mandatory minimum sentence, the

government was required to request a downward departure from the

mandatory minimum. Id. at 1335, 1340. However, in De la Fuente,

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there was an independent basis that would allow the district

court to grant a motion for downward departure from the mandatory

minimum sentence: the defendant had provided assistance in

convicting a co-conspirator. Id. at 1340. In this case, no such

basis for granting a request for downward departure exists.

Because any failure of the government to comply with the

plea agreement could not have affected a substantial right of

Cerverizzo, any error in this regard is not plain error, and thus

provides no basis for reversal. Accordingly, we find

Cerverizzo's second point of error without merit.

III. CONCLUSION

For the foregoing reasons, the district court's judgment is

AFFIRMED.

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