California convictions dismissed under California Penal Code § 1203.4 continue to count for criminal history purposes

Case: United States v. Carver, Nos. 23-4105 23-4107, issued April 2, 2025

Panel: Richard C. Tallman, Sandra S. Ikuta, and Morgan B. Christen, Circuit Judges

Author: Judge Ikuta

Robert Carver pleaded guilty to fraud-related charges pursuant to a plea agreement. Carver’s offense level was uncontested, but not his criminal history category. The district court calculated a CHC III based on two 1994 California convictions (each resulting in a sentence of at least 60 days) that had been dismissed pursuant to California Penal Code § 1203.4(a)(1), rejecting Carver’s argument that the convictions had been expunged for purposes of U.S.S.G. § 4A1.2(j).

Carver appealed. (The plea agreement reserved Carver’s right to appeal the CHC calculation.) He acknowledged that United States v. Hayden, 255 F.3d 768 (9th Cir. 2001), had held that convictions dismissed under § 1203.4 are not expunged for purposes of § 4A1.2(j), but he argued that Hayden is clearly irreconcilable with Kisor v. Wilkie, 588 U.S. 558 (2019).

The panel disagreed. Although Hayden noted that the § 4A1.2 commentary distinguished between expunged convictions and a “more limited remedy, afforded for reasons unrelated to innocence or errors of law,” the decision reviewed the Guidelines de novo to determine whether the defendant’s convictions had been expunged by the state court or merely set aside. It started with the dictionary definitions of “expunge” (erase or destroy) and “expungement of record” (the removal of a conviction from a person’s criminal record). It then compared those definitions with the text of § 1203.4(a)(1) as interpreted by California courts. Critically, the plain language of § 1203.4(a) indicates that California courts may use convictions set aside pursuant to § 1203.4(a) when sentencing the petitioner if he is later convicted of another crime. (Apparently, such convictions may also support a felon-in-possession prosecution, as well as the suspension of professional and other licenses). Hayden therefore concluded that § 1203.4(a) does not erase or expunge a prior conviction.

Because Hayden used the traditional tools of interpretation, and did not rely on the commentary, it is not clearly irreconcilable with Kisor.

The decision is here.