United States v. Michael Anthony Hidalgo, 932 F.2d 805 (9th Cir. 1991). · Go Syfert
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United States v. Michael Anthony Hidalgo, 932 F.2d 805 (9th Cir. 1991). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2009 · …from all penalties and disabilities resulting from the offense or crime for which he or she was committed. ✓
cited 2× by 2 distinct cases, last quoted 2002 · …set out the purposes and legislative history of the fyca set aside provision in a series of footnotes. ⚠ not in text
50 citation events (29 in the last 25 years) across 12 distinct courts.
Strongest positive: (HC) Johnson v. Matteson (caed, 2023-06-20) · Strongest negative: United States v. Singleton (vawd, 2009-06-11)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
cited Cited "but see" United States v. Singleton
W.D. Va. · 2009 · signal: but cf. · confidence high
But cf. United States v. Hidalgo, 932 F.2d 805, 806-07 (9th Cir.1991) (holding conviction expunged for federal guidelines purposes under youthful offender act). 7 .
discussed Cited as authority (rule) (HC) Johnson v. Matteson
E.D. Cal. · 2023 · confidence medium
Superior Court’s ruling [that petitioner was not entitled to 17 resentencing] was based on an error of state law, much less an error of federal constitutional 18 magnitude arising from an ‘egregious’ misapplication of state law or the unlawful deprivation of 19 a protected ‘liberty interest.’”). 20 Finally, Petitioner’s reliance on United States v. Hildago, 932 F.2d 805, 807 (9th Cir. 21 1991), decided more than twenty years before Senate Bill 625 became effective, is unavailing.
discussed Cited as authority (rule) United States v. Viken Hovsepian Viken Yacoubian, Viken Hovsepian v. United States of America United States Immigration and Naturalization Service, Viken Hovsepian Viken Yacoubian v. United States of America United States Immigration and Naturalization Service
9th Cir. · 2002 · confidence medium
We stressed, "Nothing in [the Act] suggests that the [conviction] may not be retained for later use by another court." Id. 24 We backtracked from Campbell in United States v. Hidalgo, 932 F.2d 805, 806-07 (9th Cir.1991), where we were asked to decide whether a conviction expunged pursuant to a California statute could be used under the federal Sentencing Guidelines.
discussed Cited as authority (rule) United States v. Hovsepian
9th Cir. · 2002 · confidence medium
We backtracked from Campbell in United States v. Hidalgo, 932 F.2d 805, 806-07 (9th Cir.1991), where we were asked to decide whether a conviction expunged pursuant to a California statute could be used under the federal Sentencing Guidelines.
discussed Cited as authority (rule) United States v. Vassar
9th Cir. · 2002 · confidence medium
See United States v. Hayden, 255 F.3d 768, 773-74 (9th Cir.2001) (conviction not expunged for Guidelines criminal history purpose if statute allows for use of dismissed convictions in subsequent prosecutions); United States v. Hidalgo, 932 F.2d 805, 807 (9th Cir.1991) (state statute providing that defendant would “thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed” expunged conviction; Supreme Court has equated “set aside” with “expunged,” and state courts considered the statute to “expunge” a prior c…
cited Cited as authority (rule) United States v. Greene
E.D. Va. · 2002 · confidence medium
See United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir. 1991); United States v. Hi-dalgo, 932 F.2d 805, 807 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Alfonso Hayden
9th Cir. · 2001 · confidence medium
Hayden argues that we have held that statutes similar to section 1203.4 expunge prior convictions, and that we should follow those decisions and hold that his prior convictions were “expunged.” In United States v. Hidalgo, we held that a conviction set aside pursuant to California Welfare and Institutions Code section 1772, 4 *773 the state’s juvenile probation statute, is “expunged” under § 4A1.2(j). 932 F.2d 805, 807 (9th Cir.1991).
cited Cited as authority (rule) Byron Paredes-Urrestarazu v. U.S. Immigration and Naturalization Service
9th Cir. · 1994 · confidence medium
Finally, Petitioner relies upon United States v. Hidalgo, 932 F.2d 805, 807 (9th Cir.1991), for the proposition that, as a matter of federal law, the BIA must give effect to the diversion regime.
cited Cited as authority (rule) Byron Paredes-Urrestarazu v. U.S. Immigration and Naturalization Service
9th Cir. · 1994 · confidence medium
Finally, Petitioner relies upon United States v. Hidalgo, 932 F.2d 805, 807 (9th Cir.1991), for the proposition that, as a matter of federal law, the BIA must give effect to the diversion regime.
discussed Cited as authority (rule) United States v. Mark Allen Varela
9th Cir. · 1993 · signal: cf. · confidence medium
See generally United States v. Anderson, 942 F.2d 606, 612 (9th Cir.1991) (en banc) (Guidelines commentary is entitled to considerable weight, more so than ordinary legislative history); cf. Hidalgo, 932 F.2d at 805 (where the conviction has actually been set aside, the conviction will be considered expunged).
cited Cited as authority (rule) United States v. Joseph Edmund Beaulieau, A/K/A Ed Beaulieau and Thomas Townsend
2d Cir. · 1992 · confidence medium
United States v. Hidalgo, 932 F.2d 805, 807 (9 Cir.1991) (interpretation of Cal.Welf. & Inst.Code § 1772(a)).
cited Cited "see" USA v. Michael Dubovsky
D.N.H. · 2001 · signal: see · confidence high
See United States v. Hidalgo, 932 F.2d 805, 807 (9th Cir. 1991); see also United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir. 1991).
cited Cited "see" United States v. Anthony Maurice McDonald
D.C. Cir. · 1993 · signal: see · confidence high
See Hidalgo, 932 F.2d at 807 .
discussed Cited "see, e.g." United States v. Raymond Gene A/K/A Butch, A/K/A \Butch\" Moreno"
9th Cir. · 1993 · signal: see also · confidence medium
See also United States v. Hidalgo, 932 F.2d 805, 806 (9th Cir.1991) (expunged convictions not included in determining criminal history under U.S.S.G. § 4A1.2(j)). 7 Montana law does not provide for the automatic expunction of deferred sentences: 2 8 [A]fter termination of the time period during which imposition of sentence has been deferred, upon motion of the court, the defendant, or the defendant's attorney, the court may allow the defendant to withdraw his plea of guilty or may strike the verdict of guilty from the record and order that the charge or charges against him be dismissed. 9 M.C…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Anthony HIDALGO, Defendant-Appellant
89-50457.
Court of Appeals for the Ninth Circuit.
May 8, 1991.
932 F.2d 805
91 Cal. Daily Op. Serv. 3388
1991 U.S. App. LEXIS 8995
1991 WL 71439
Paul L. Abrams, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant., Patricia A. Beaman, Asst. U.S. Atty., Los Angeles, Cal, for plaintiff-appellee.
Nelson, Reinhardt, Tanner.
Cited by 33 opinions  |  Published
TANNER, District Judge:

Michael Anthony Hidalgo appeals his sentence under the sentencing guidelines, after a guilty plea, for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). He argues that the district court erred by including a 1977 robbery conviction and then determining that he was a career offender pursuant to U.S.S.G. § 4B1.1 et seq. [1] We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand to the district court for resentencing.

I

On May 2, 1989, an indictment was filed which charged Hidalgo with four counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Hidalgo pled guilty on June 19, 1989 to Count One of the indictment which charged him with committing a March 17, 1989 robbery of American Savings and Loan Association in La Puente, California.

A presentence report was ordered and prepared. In that report, the probation officer determined that Hidalgo was included within the career offender guidelines, U.S.S.G. § 4B1.1 et seq., because the instant offense (unarmed bank robbery) is a crime of violence and Hidalgo has two prior convictions for crimes of violence within the meaning of U.S.S.G. § 4B1.2. One of the prior convictions was a 1977 robbery conviction which was “set aside” pursuant to California Welfare and Institutions Code § 1772(a). [2] Pursuant to U.S.S.G. § 4B1.1 defendant’s offense level was set at 32 with a criminal history category of YI resulting in a guideline range of 210-262 months. The district court agreed with the probation officer’s calculations.

On August 28, 1989, Hidalgo was sentenced to 210 months in the custody of the Attorney General. He made the same arguments before the district court at his sentencing hearing that he advances before this court on appeal.

II

In calculating Hidalgo’s criminal history, the district court included a 1977 California state conviction for second degree robbery which was set aside pursuant to Cal.Welf. & Inst.Code § 1772. The straightforward issue on this appeal is whether the “set aside” conviction is an “expunged” conviction under U.S.S.G. § 4A1.2(j) [3] and therefore not included in determining a defendant’s criminal history.

[*807] Initially it appears elementary to us that when the verdict of guilty was vacated and set aside and the information dismissed as to Hidalgo’s 1977 second degree robbery conviction, that conviction no longer exists. Cal.Welf. & Inst.Code § 1772(a). Therefore, there is nothing to count for purposes of calculating defendant’s criminal history. Indeed, the California statute specifically releases the juvenile delinquent “from all penalties and disabilities resulting from the offense or crime for which he or she was committed....” Id.

Relying on the above quoted language and U.S.S.G. § 4A1.2(j) it appears obvious that the 1977 conviction was erroneously counted. Unfortunately, the commentary to U.S.S.G. § 4A1.2 unnecessarily confuses this issue. [4] The commentary sheds little light on the proper outcome and appears to be somewhat internally contradictory. However, its final sentence supports the conclusion we reach here.

The Federal Youth Corrections Act provides a useful analogy. The Act, 18 U.S.C. § 5021 (repealed), contained a provision which “automatic[ally] set aside” a conviction if the offender was unconditionally discharged prior to the expiration of his or her sentence. In Tuten v. United States, 460 U.S. 660, 103 S.Ct. 1412, 75 L.Ed.2d 359 (1983), the Supreme Court sets out the purposes and legislative history of 18 U.S.C. § 5021 in a series of footnotes. Tuten, 460 U.S. at 664-65, notes 6-9, 103 S.Ct. at 1415, notes 6-9. The Court clearly understood the term “set aside” to mean “expunged” for purposes of the Act. See Id.

Furthermore, California courts when discussing the set aside provision of section 1772 consistently refer to this statute as a rule “expunging” a prior conviction. See e.g., People v. Navarro, 7 Cal.3d 248, 277-281, 102 Cal.Rptr. 137, 158-60, 497 P.2d 481, 502-04 (1972); People v. Jacob, 174 Cal.App.3d 1166, 220 Cal.Rptr. 520 (1985).

Therefore, in applying both a federal and California explanation of “expunge” to the clear language of U.S.S.G. § 4A1.2(j), we hold that Hidalgo’s 1977 conviction was expunged and cannot be used as a prior conviction under U.S.S.G. § 4B1.2.

REVERSED and REMANDED for RE-SENTENCING.

1

. Hidalgo raises two other issues. He argues that the sentencing guidelines violate due process; however this court has recently decided that issue adversely to Hidalgo in United States v. Brady, 895 F.2d 538, 544 (9th Cir.1990). He also argues that based upon a recent amendment to U.S.S.G. § 4B1.1, he is entitled to a two-point reduction in his base offense level for acceptance of responsibility. Because we agree that Hidalgo was wrongly determined to be a career offender, we need not address this issue.

2

. Section 1772(a) provides:

(a) Every person honorably discharged from control by the Youthful Offender Parole Board who has not, during the period of control by the authority been placed by the authority in a state prison shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed, and every person discharged may petition the court which committed him or her, and the court may upon such petition set aside the verdict of guilty and dismiss the accusation or information against the petitioner who shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed, including, but not limited to any disqualification for any employment or occupational license, or both, created by any other provision of law. However, such a person shall not be eligible for appointment as a peace officer employed by any public agency if his or her appointment would otherwise be prohibited by § 1029 of the Government Code.

Cal.Welf. & Inst.Code § 1772(a).

3

.Section 4A1.2Q) provides:

Sentences for expunged convictions are not counted, but may be considered under § 4A1.3 (Adequacy of Criminal History Category).

U.S.S.G. § 4A1.2(j).

4

. U.S.S.G. § 4A1.2 comment, (n. 10) provides:

Convictions Set Aside or Defendant Pardoned. 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 or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. Section 4A1.2Q.