United States Court of Appeals
For the First Circuit
No. 01-1212
UNITED STATES,
Appellee,
v.
MICHAEL ROBERT DUBOVSKY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Paul J. Haley, Law Office of Paul J. Haley, on brief, for
appellant.
Paul M. Gagnon, United States Attorney, with whom Mark E.
Howard, Assistant United States Attorney, was on brief, for
appellee.
*Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
January 29, 2002
JOHN R. GIBSON, Senior Circuit Judge. Michael Dubovsky
appeals from the sentence imposed after he pled guilty to one
count of conspiring to distribute Lysergic Acid Diethylamide
(LSD). See 21 U.S.C. §§ 841(a)(1), 846 (1994). At sentencing,
the district court determined that Dubovsky was not eligible for
the "safety valve" provisions of 18 U.S.C. § 3553(f) (1994 &
Supp. V 1999) and U.S. Sentencing Guidelines Manual § 5C1.2
(1998)1 because an earlier adjudication for possession of
marijuana, the records of which had been sealed, had not been
expunged for the purposes of U.S. Sentencing Guidelines Manual
§ 4A1.2(j) (1998). United States v. Dubovsky, No. CRIM. 99-37-
B, 2001 WL 274730 (D.N.H. Jan. 24, 2001) (unpublished
memorandum). As a result he received the mandatory minimum
sentence of ten years pursuant to 21 U.S.C. § 841(b)(1)(A)(v)
(1994). Dubovsky argues on appeal that the sealing of the
records relating to his marijuana possession charge constituted
an expungement and that therefore he should have been eligible
1"When applicable, these provisions mandate both reduction
of the defendant's offense level and judicial disregard of
statutes imposing mandatory minimum sentences." United States
v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000).
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for a sentence of between forty-six and fifty-seven months. He
asks that the sentence imposed be set aside and the safety valve
considered. We affirm the sentence imposed by the district
court.
I.
In 1996, Dubovsky admitted in Massachusetts state court
to sufficient facts to support a conviction on a charge of
possession of marijuana. The judge continued the charge
without a finding of guilt, on the condition that Dubovsky
remain outside the state during the period of continuance. In
1998, the proceedings were dismissed pursuant to Massachusetts
law. See Mass. Gen. Laws ch. 94C, § 34 (1997).
In May of 2000, Dubovsky found himself in federal
court, where he pled guilty to the unrelated drug conspiracy
charge at issue here. Thereafter, Dubovsky filed a motion in
Massachusetts state court to seal all records concerning the
earlier possession of marijuana charge. This motion was granted
on November 2, 2000.2 Dubovsky was sentenced in this case two
months later.
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. If
the state court judge had known of this fact, he could not have
granted Dubovsky's motion to seal." Dubovsky, 2001 WL 274730,
at *2 n.2.
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The quantity of drugs involved in Dubovsky's conspiracy
offense (more than ten grams) mandates a minimum ten-year
sentence, unless the safety valve provision is applicable. See
18 U.S.C. § 3553(f); 21 U.S.C. § 841(b)(1)(A)(v); U.S.
Sentencing Guidelines Manual § 5C1.2 (1998). The safety valve
provision is only applicable if the defendant has no more than
one criminal history point. U.S. Sentencing Guidelines Manual
§ 5C1.2 (1998). Under the guidelines, criminal history points
are assessed on the basis of prior sentences. U.S. Sentencing
Guidelines Manual § 4A1.1 (1998). When a Massachusetts court
enters a continuance without a finding in accordance with the
procedures set out in Massachusetts Rules of Criminal Procedure
12,3 that continuance is considered a prior sentence for the
purposes of § 4A1.1. United States v. Morillo, 178 F.3d 18 (1st
Cir. 1999). However, sentences for expunged convictions4 are not
counted. U. S. Sentencing Guidelines § 4A1.2(j) (1998).
What constitutes expungement for the purposes of
determining criminal history under the Guidelines is clarified
3Dubovsky acknowledges that the state court complied with
all required procedures.
4The use of the term "convictions" in § 4A1.2(j) does not
render that section inapplicable here. See Morillo, 178 F.3d
at 20-21 (treating admission of sufficient facts to support a
conviction under Massachusetts law as a guilty plea); United
States v. Stowe, 989 F.2d 261, 263 (7th Cir. 1993) (applying §
4A1.2(j) to guilty plea resulting in diversionary disposition).
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in an application note:
A number of jurisdictions have various procedures
pursuant to which previous convictions may be set
aside or the defendant may be pardoned for
reasons unrelated to innocence or errors of law,
e.g., in order to restore civil rights to remove
the stigma associated with a criminal conviction.
Sentences resulting from such convictions are to
be counted. However, expunged convictions are
not counted. § 4A1.2(j).
U.S. Sentencing Guidelines Manual § 4A1.2(j), cmt. n.10 (1998).
Sentencing guideline application notes are authoritative unless
they violate the Constitution or a federal statute or are
inconsistent with the guideline. Stinson v. United States, 508
U.S. 36, 38 (1993). Thus, since excluding Dubovsky's prior
admission of marijuana possession, which we treat as a guilty
plea, see Morillo, 178 F.3d at 21, from his criminal history
calculation would have made him eligible for the safety valve
provision (as the government concedes), the crucial issue for
the district court was whether Dubovsky's adjudication had been
expunged.
The district court received briefs from both parties
concerning the use of the sealed dispositions, heard extensive
oral argument from counsel, and finally concluded that the 1996
adjudication could not be treated as expunged under the
Guidelines. Dubovsky, 2001 WL 274730, at *3. The district
court found that Dubovsky's marijuana charge was not dismissed,
-5-
and his case was not sealed, for reasons of innocence or errors
of law, and that the related records were not completely
destroyed. Id. at *2. Therefore, Dubovsky's admission could
not be considered expunged, he was not entitled to the safety
valve, and a ten-year mandatory minimum sentence was required.
Id.
We review the district court's application of the
Sentencing Guidelines de novo. United States v. Gonzalez-
Arimont, 268 F.3d 8, 14 (1st Cir. 2001).
II.
Dubovsky's case can be seen as a story with two
chapters. In Morillo, we addressed the issue constituting the
first chapter of his story when we concluded that a continuance
without a finding, entered as a result of an admission to facts
sufficient to warrant a finding of guilt under Massachusetts
law, is counted as a sentence for the purposes of calculating
criminal history points in sentencing. 178 F.3d at 21. Now we
must resolve the issue raised by the second chapter: What effect
does the dismissal of a charge continued without a finding under
Massachusetts law, and the sealing of the records related to
that charge, have upon the calculation of criminal history
points? We conclude that the language of the sentencing
guidelines and related application notes make abundantly clear
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that Dubovsky's sentence has not been expunged for the purposes
of calculating his criminal history points, and that this
conclusion is in accord with Massachusetts law.
The district court identified "three distinct
approaches" in the circuit courts for determining whether a
dismissed conviction should be treated as expunged. Dubovsky,
2001 WL 274730, at *1. It cited the Tenth, Fifth, and D.C.
Circuits as exemplifying the "prevailing view," focusing on
whether "the conviction was set aside because of innocence or
errors of law." Id. (citing United States v. Hines, 133 F.3d
1360 (10th Cir. 1998); United States v. Ashburn, 20 F.3d 1336
(5th Cir. 1994); United States v. McDonald, 991 F.2d 866 (D.C.
Cir. 1993)). It distinguished this view from that of the Second
Circuit, which it described as focusing on whether "all trace of
the prior adjudication" had been eliminated. Id. at *2.
(quoting United States v. Matthews, 205 F.3d 544, 548 (2d Cir.
2000)). Finally, it characterized the Ninth Circuit as taking
the position 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."
Id. (citing United States v. Hidalgo, 932 F.2d 805 (9th Cir.
1991)). The district court cited our decision in United States
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v. Fosher, 124 F.3d 52 (1st Cir. 1997), for the proposition that
we had "not taken a definitive position on the issue." Id.
Dubovsky urges us to adopt a hybrid of the approaches
attributed to the Second and Ninth Circuits above, such that we
could conclude that expungement exists where records are
"constructively purged" by the Massachusetts statute. However,
we are persuaded that expungement within the meaning of the
Guidelines's structure is best determined by considering whether
the conviction was set aside because of innocence or errors of
law. We are convinced that the explicit language of note ten to
Guideline § 4A1.2(j) specifically so requires.5 See Gonzalez-
5
To the extent that a split exists among the circuits, we
thus side with what the district court characterized as the
"prevailing view." There is an argument to be made, however,
that there is in fact no meaningful circuit split. For example,
while the Tenth Circuit, in Hines, did state that "[a]
conviction is 'expunged' for Guideline purposes only if the
basis for the expungement under state law is related to
'constitutional invalidity, innocence, or errors of law,'" it
also looked to the fact that "the Act does not permit the
physical destruction of records." 133 F.3d at 1364-65; see also
Ashburn, 20 F.3d at 1342-44 (analyzing whether statute in
question "eliminate[d] all evidence of the conviction").
Similarly, while the Second Circuit, in Matthews, may have
focused on the fact that the "statute does not eliminate all
trace of the prior adjudication," it described its analysis as
the same as the one in Hines. 205 F.3d at 546, 548; see also
United States v. Reyes, 13 F.3d 638, 641 (2d Cir. 1994)
(concluding that defendant's prior conviction could be included
in calculating his criminal history where he did not argue "that
the motion was granted because of innocence or legal error").
Finally, the Ninth Circuit has recently stated that in
"[a]pplying the commentary's definition of 'expunged
convictions,' we must decide whether the relief . . . is a more
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Arimont, 268 F.3d at 15 ("We held in [Fosher], that a set-aside
under the Federal Youth Corrections Act is 'for reasons
unrelated to innocence or errors of law' and therefore not
expungement.") (quoting Fosher, 124 F.3d at 57 (quoting U.S.
Sentencing Guidelines Manual § 4A1.2(j), cmt. n.10 (1998))).
Applying that approach to this case, we conclude that the
district court correctly found that Dubovsky's marijuana charge
was not dismissed, nor were the related records sealed, on
account of innocence or legal errors.6 Under Massachusetts law,
there was no requirement that Dubovsky make a showing of either.
See Mass. Gen. Laws ch. 94C, § 34 (authorizing a court to
dismiss proceedings and seal records of any first-time drug
offender who has complied with conditions of continuance).
Dubovsky cites a portion of the Massachusetts statute
which states that once sealed, a conviction "shall not be deemed
a conviction for [any] purpose." Mass. Gen. Laws ch. 94C, § 34.
limited remedy, afforded 'for reasons unrelated to innocence or
errors of law.'" United States v. Hayden, 255 F.3d 768, 771
(9th Cir. 2001) (quoting U.S. Sentencing Guidelines § 4A1.2(j)
(1998)).
6 Indeed, Dubovsky does not challenge the district court's
finding on this issue, and his failure to argue this point
constitutes a waiver. Ortega Cabrera v. Municipality of
Bayamon, 562 F.2d 91, 102 n.10 (1st Cir. 1977). As we discuss,
his argument instead is that the sealing of his records by
operation of Massachusetts law constitutes an expungement
nonetheless.
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He argues that for the federal courts to allow the prior
adjudication here to count for the purposes of criminal history
would be contrary to the intent of the Massachusetts
Legislature. However, even if this argument is valid, 7 it is
unavailing. The intent of the state legislature is relevant to
show whether the sealing procedure is related to innocence or
legal errors. See Hines, 133 F.3d at 1364 ("A conviction is
'expunged' for Guideline purposes only if the basis for the
expungement under state law is related to 'constitutional
invalidity, innocence, or errors of law.' We must therefore
7
The Massachusetts Legislature knows the difference between
"sealing" and "expunging," having used both terms in § 34 before
amending that statute to eliminate all reference to "expunged"
records. The view that the Massachusetts Legislature's use of
the term "seal" conveys an intent to accomplish something less
than a total ban on future use of the record is borne out by the
opinions of the Supreme Judicial Court of Massachusetts. See
Commonwealth v. Vickey, 412 N.E.2d 877, 879 (Mass. 1980)
("Despite considerable confusion in applying this terminology,
the Massachusetts Legislature made clear its knowledge of the
distinctions involved by changing the language of G.L. c. 94C,
s 44 from 'expungement' to 'sealing.' . . . Sealed records []
may be made available to . . . 'any court.'") (quoting G.L. c.
276, s. 100A); Police Comm'r v. Mun. Court, 374 N.E.2d 272, 277
(Mass. 1978) ("[T]he distinction between expungement of a record
and sealing of a record is important. . . . The latter term
refers to those steps taken to segregate certain records from
the generality of records and to ensure their confidentiality to
the extent specified in the controlling statute."). As we
stated in Fosher, an intent to benefit an offender "by providing
a second chance" so that he or she can live "without the stigma
of a criminal conviction, . . . [is] not meant to allow a
recidivist to avoid increased penalties based on earlier
criminal convictions." 124 F.3d at 58.
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examine the basis for the expungement of [the] conviction under
[state] law.") (quoting United States v. Cox, 83 F.3d 336, 339
(10th Cir. 1998)); Fosher, 124 F.3d at 58 (examining
congressional intent). 8 But any collateral consequences of
sealing under state law are irrelevant to the application of the
federal Sentencing Guidelines, which have their basis in
congressional, not state policy. See United States v. Gray, 177
F.3d 86, 93 (1st Cir. 1999) ("[States] may not dictate how the
federal government will vindicate its own interests in punishing
those who commit federal crimes."); United States v. Daniels,
929 F.2d 128, 129 (4th Cir. 1991) ("Even if the juvenile
proceedings had been sealed pursuant to state law, that law
could not bar consideration of them by a federal court in
determining a sentence, when federal law provides otherwise.").
Here, we agree with the district court that "[t]he obvious
purpose of this sealing provision is to give a defendant a fresh
start," Dubovsky, 2001 WL 274730, at *2, not to correct errors
of law or vindicate innocence.
III.
For the foregoing reasons, we affirm the sentence of
8As noted above, examining the basis of the asserted
expungement may also include determining whether the records
were destroyed. See Hines, 133 F.3d at 1365; Fosher, 124 F.3d
at 58. In Dubovsky's case they were not. See Dubovsky, 2001 WL
274730, at *2; Mass. Gen. Laws ch. 94C, § 34.
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the district court.
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