United States v. Sammy Dewayne Kammerdiener, 945 F.2d 300 (9th Cir. 1991). · Go Syfert
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United States v. Sammy Dewayne Kammerdiener, 945 F.2d 300 (9th Cir. 1991). Cases Citing This Book View Copy Cite
32 citation events (15 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Hovsepian (ca9, 2002-09-30) · Strongest negative: United States v. Law (cadc, 2008-06-13)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited "but see" United States v. Law
D.C. Cir. · 2008 · signal: but see · confidence high
See U.S. Sentencing Guidelines Manual § 4A1.2(j) (2007); see also United States v. Fosher, 124 F.3d 52, 58 (1st Cir.1997); Gass v. United States, 109 F.3d 677, 679-80 (11th Cir.1997); United States v. Nicolace, 90 F.3d 255, 258 (8th Cir.1996); United States v. Wacker, 72 F.3d 1453, 1479 (10th Cir.1995); United States v. Levi, 45 F.3d 453, 457 (D.C.Cir.1995) (conviction set aside under FYCA was “properly included in determining [defendant’s] sentence”); United States v. Ashbum, 20 F.3d 1336, 1343 (5th Cir.1994); United States v. McDonald, 991 F.2d at 871-72 ; but see United States v. Kam…
discussed Cited as authority (rule) United States v. Hovsepian
9th Cir. · 2002 · confidence medium
We adopted Hidalgo’s dicta in United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991), in which we held that a conviction set aside under the Act cannot be considered under the federal Sentencing Guidelines.
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
Curiously, the Hidalgo court did not discuss, let alone cite, Campbell . 25 We adopted Hidalgo's dicta in United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991), in which we held that a conviction set aside under the Act cannot be considered under the federal Sentencing Guidelines.
discussed Cited as authority (rule) United States v. Alfonso Hayden
9th Cir. · 2001 · confidence medium
In United States v. Kammerdiener, we cited Hidalgo, and concluded that a conviction set aside pursuant to the Federal Youth Corrections Act (“FYCA”) 5 may not be considered when calculating a defendant’s criminal history score. 945 F.2d 300, 301 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Hines
10th Cir. · 1998 · confidence medium
But see United States v. Beaulieau, 959 F.2d 375, 380-81 (2d Cir.1992) (holding conviction sealed under Vermont juvenile statute was expunged for purposes of the Guidelines); United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991) (holding conviction expunged under FYCA could not be counted in determining defendant’s criminal history).
discussed Cited as authority (rule) Gass v. United States
11th Cir. · 1997 · confidence medium
United States v. Nicolace, 90 F.3d 255, 258 (8th Cir.1996); United States v. Cox, 83 F.3d 336, 340 (10th Cir.1996); United States v. Cerverizzo, 74 F.3d 629, 631 (5th Cir.1996); United States v. Doe, 556 F.2d 391, 393 (6th Cir.1977); but see United States v. Doe, 980 F.2d 876, 878 (3d Cir.1992); United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Darrell H. Stanfield
6th Cir. · 1993 · confidence medium
See United States v. Beaulieau, 959 F.2d 375, 380-81 (2d Cir.1992) (Vermont statute, which provided that once the record of a prior juvenile conviction is sealed, the proceedings shall be considered never to have occurred, found to expunge prior conviction); United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991) (federal statute, which automatically set aside a youth conviction upon unconditional discharge, found to expunge prior conviction); United States v. Johnson, 941 F.2d 1102, 1112 (10th Cir.1991) (Oklahoma statute, which provided that upon completion of probation term defendant…
discussed Cited as authority (rule) United States v. Mark Allen Varela
9th Cir. · 1993 · confidence medium
We have never addressed the precise question of whether a conviction will be considered “expunged” for purposes of the Guidelines where the defendant is entitled to ex-pungement but does not follow the formal procedures specified by statute. 5 Cf. United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991) (where a statute provided that a conviction would be “automatically set aside, ” see 18 U.S.C. § 5021 (emphasis added), upon the occurrence of an event, once the event occurred the conviction could not be considered in calculating the criminal history category).
cited Cited "see" United States v. Greene
E.D. Va. · 2002 · signal: see · confidence high
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).
cited Cited "see" United States v. Lewis Theodore Wacker, United States of America v. Leroy Allen Cooley, United States of America v. John Lee Wacker, United States of America v. Edith Faye Wacker, United States of America v. Susan Mary Boyle, United States of America v. Michael L. Lipp, United States of America v. Perl Glen Van Pelt
10th Cir. · 1996 · signal: see · confidence high
See Kammerdiener, 945 F.2d at 301 .
cited Cited "see" United States v. Wacker
10th Cir. · 1995 · signal: see · confidence high
See Kammerdiener, 945 F.2d at 301 .
discussed Cited "see" United States v. Anthony Maurice McDonald
D.C. Cir. · 1993 · signal: see · confidence high
The Ninth Circuit has reached a different conclusion with respect to a California statute expressly providing that if a court “set[s] aside” a juvenile’s conviction, the youth is “released from all penalties and disabilities resulting from the offense.” Cal Welf. & Inst.Code § 1772(a); see United States v. Kammerdiener, 945 F.2d 300 (9th Cir.1991); United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991).
discussed Cited "see" United States v. Chris Edward Dillard
9th Cir. · 1992 · signal: see · confidence high
See United States v. Kammerdiener, 945 F.2d 300 (9th Cir.1991); United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991). 14 None of these cases, however, stand for the proposition that the conviction itself changes character when the defendant is sentenced under the FYCA.
discussed Cited "see, e.g." United States v. Viken Hovsepian Viken Yacoubian, Viken Hovsepian v. United States of America John Ashcroft, Attorney General, United States Department of Justice, Viken Hovsepian Viken Yacoubian v. United States of America John Ashcroft, Attorney General, United States Department of Justice
9th Cir. · 2004 · signal: see also · confidence low
However, the INS's statement was an accurate description of the state of the law at that time and does not rise to the level of "affirmative misconduct." See Wenger v. Monroe, 282 F.3d 1068, 1076 (9th Cir.2002) (holding that, in order for estoppel to be applied to the government, the government must have engaged in "affirmative misconduct going beyond mere negligence"). 8 Yacoubian argued in the alternative that the district court had authority to expunge his conviction records as part of the court's "inherent authority." We squarely rejected such an argument in Sumner, 226 F.3d at 1010 , and …
discussed Cited "see, e.g." United States v. Hovsepian
9th Cir. · 2004 · signal: see also · confidence low
See, e.g., United States v, Campbell, 724 F.2d 812 (9th Cir.1984) (holding that a set-aside conviction could be considered when sentencing a FYCA offender for a later crime and noting that FYCA set-aside does not affect nonpublic records kept by the Department of Justice); Fite v. Retail Credit Co., 537 F.2d 384 (9th Cir.1976) (upholding a refusal to enjoin a credit agency's dissemination of the facts of a defendant’s set-aside FYCA conviction because a set-aside conviction under FYCA does not disappear); see also United States v. Kammerdiener, 945 F.2d 300 (9th Cir.1991) (holding that, unde…
discussed Cited "see, e.g." United States v. Vassar
9th Cir. · 2002 · signal: see also · 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 "see, e.g." USA v. Michael Dubovsky
D.N.H. · 2001 · signal: see also · confidence medium
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).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Sammy Dewayne KAMMERDIENER, Defendant-Appellant
90-30199.
Court of Appeals for the Ninth Circuit.
Sep 23, 1991.
945 F.2d 300
Alan Zarky, Seattle, Wash., for defendant-appellant., Harry J. McCarthy and Ken Parker, Asst. U.S. Attys., Seattle, Wash., for plaintiff-appellee.
Wright, Beezer, Wiggins.
Cited by 25 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Alan Zarky, Seattle, Wash., for defendant-appellant.

Harry J. McCarthy and Ken Parker, Asst. U.S. Attys., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, BEEZER and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Lead Opinion

EUGENE A. WRIGHT, Circuit Judge:

We are faced with the question whether convictions set aside under the Federal Youth Corrections Act, 18 U.S.C. § 5021, repealed Pub.L. No. 473 § 218(a)(8), 98 Stat. 2027 (1984) (FYCA), may be considered in calculating a defendant’s criminal history category under the Sentencing Guidelines. Being bound by precedent, we conclude they may not be considered and reverse and remand for resentencing.

I

On February 26, 1990, Sammy Kammer-diener pleaded guilty to two counts each of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343. The sentencing[*301] court imposed a 27-month prison term with three years of supervised release. Restitution was also ordered.

The only issue here is the calculation of Kammerdiener’s criminal history. A three-point increase was assessed in his presen-tence report for a 1973 mail fraud conviction. The inclusion of this conviction raised his criminal history category from III to IV, increasing his sentencing range from 18-24 months to 24-30 months.

Kammerdiener timely objected to the presentence report on the grounds that the 1973 conviction was set aside under the FYCA and could not be added to his criminal history calculation. We review de novo the district court’s application of the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990).

II

The FYCA gave courts discretion to set aside youth convictions.[1] Kammerdiener argues that such a set aside is tantamount to an expungement of the conviction. Under the Guidelines an expunged conviction may not be included in a defendant's criminal history calculation. United States Sentencing Commission, Guidelines Manual, § 4A1.2(j) (Nov. 1990).[2]

This court, in United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991), recently addressed whether a set aside was an ex-pungement under section 4A1.2(j). Hidalgo was concerned with the effect of a conviction that was set aside under a California youth offender statute, which was similar to the FYCA.

In concluding that a set aside was an expungement for the purposes of the Guidelines, the Hidalgo court noted that:

The Federal Youth Corrections Act ... contained a provision which “automatically] 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.

Id. at 807. This interpretation of Tuten was a key part of the court’s reasoning and enabled it to conclude that a set-aside conviction could not be counted under section 4A1.2(j).

Being bound by the Hidalgo court’s conclusion that a set aside is equivalent to an expungement for sentencing purposes, we hold that Kammerdiener’s prior conviction, set aside under the FYCA, may not be included in his criminal history calculation.

REVERSED and REMANDED for re-sentencing.

1

18 U.S.C. § 5021 provided:

(a) Upon the unconditional discharge by the commissioner of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the commission shall issue to the youth offender a certificate to that effect.
(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.
2

U.S.S.G. § 4A1.2(j) provides:

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

Dissent

WIGGINS, Circuit Judge,

dissenting:

Because I disagree that Hidalgo and Tu-ten dictate the result in this case, and because I believe policy considerations favor the opposite result, I dissent.

In a pre-guidelines case, we acknowledged that the FYCA set-aside did not mean that the conviction was expunged for all purposes. United States v. Campbell, 724 F.2d 812, 812 (9th Cir.1984). We pointed out that the set-aside does not affect the nonpublic record retained by the Department of Justice, and that an exhaustive review of the legislative history showed

that Congress’ clear intent was to prevent public dissemination, and particular[*302] ly dissemination to prospective employers, of an FYCA conviction, [cite] Nothing in that section suggests that the record may not be retained for later use by another court.

Id. We held in Campbell that a conviction set aside under the FYCA could be considered by a later sentencing court.

The sentencing guidelines commentary express the Sentencing Commission’s intent that cases such as Campbell remain good law under the guidelines. Application note 10 to § 4A1.2 instructs a sentencing court as follows:

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. § 4A1.2(j).

The note is consistent with the policy considerations behind set-aside provisions for young offenders. The Supreme Court articulated some of these policy concerns in Tuten v. United States:

Like various state expungement statutes § 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany a criminal conviction.

460 U.S. 660, 665, 103 S.Ct. 1412, 1415, 75 L.Ed.2d 359 (1983). The idea is that if young offenders will turn from crime and become law-abiding citizens, they should not be saddled their entire lives with mistakes they made in their immaturity. For example, they should enjoy the right to vote, hold public office, serve on juries, and practice the occupation of their choice free from the stigma of criminal conviction. See id. at 664, 103 S.Ct. at 1415. However, if the young offender continues to break the law, he or she should not reap the benefits of a clean slate that is intended “to promote the rehabilitation of youth offenders.” Id. Rather, the set-aside should be counted as part of the defendant’s criminal history as the guidelines commentary directs.

A recent en banc opinion in our circuit holds that the guidelines commentary “is entitled to considerable weight, more so than ordinary legislative history, in interpreting the guidelines.” United States v. Anderson, 942 F.2d 606, 612 at 10375 (9th Cir. Aug. 6, 1991) (en banc). The opinion further directs that if the guideline and the commentary can be construed consistently, the commentary should not be ignored. Id. at 612.

In United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991), a Ninth Circuit panel, considering the effect of a conviction set aside under California law on guidelines sentencing, suggested that application note 10 “unnecessarily confuses the issue” and “appears to be somewhat internally contradictory.” 932 F.2d at 807. However, nothing in U.S.S.G. § 4A1.2 conflicts with the distinction in application note 10 between the use of set-aside and expunged convictions in calculating a defendant’s criminal history category. I believe Hidalgo’s brushing aside of the commentary has been overruled by Anderson. Therefore, application note 10 should be followed and the district court should be affirmed.[1]

The Hidalgo court and the majority in this case suggest that Tuten can be read to mandate reversal. The Supreme Court did obliquely imply in Tuten that a conviction[*303] set aside under the FYCA could not be taken into account in imposing a sentence.[2] However, the Tuten court was addressing the question whether the set-aside was valid in that case. It concluded that it was not valid because the offender had not been unconditionally discharged prior to the expiration of his sentence, as the FYCA requires. 460 U.S. at 668, 103 S.Ct. at 1417. The Court did not squarely address what effect a valid set-aside, as in our case, might have on a later sentence. Further, Tuten was a pre-guidelines case.[3] The Court was not applying U.S.S.G. § 4A1.2 or application note 10, as we are called to do in this case.

For these reasons, I dissent.

1

Hidalgo was wrongly decided for another reason. It was important to the panel that California courts refer to the California set-aside provision as "expunging" the prior youth conviction. However, the cases it cited do not support the proposition that a conviction set aside under Cal.Welf. & Inst.Code § 1772(a) is expunged for all purposes. Indeed, in People v. Jacob, 174 Cal.App.3d 1166, 1174, 220 Cal.Rptr. 520, 524 (1985), the California appeals court held that a prior conviction that has been set aside under § 1772(a) could be used to enhance a sentence for a later conviction. The Hidalgo court inexplicably ruled differently from Jacobs on the same question. See also People v. Navarro, 7 Cal.3d 248, 280, 102 Cal.Rptr. 137, 159, 497 P.2d 481 (1972) (en banc) (“It is inappropriate to attempt to here define all the penalties and disabilities intended to be released by section 1772 ...,” but a conviction set aside under the section cannot be used to keep a repeat offender out of a narcotic addicts treatment program.)

2

After deciding that the juvenile conviction in Tuten had not been set aside under the FYCA, the Court said, "The trial court was therefore free in this case to take petitioner’s previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia’s penal statute.” 460 U.S. at 668, 103 S.Ct. at 1417.

3

Tuten was also decided before Campbell, and yet we concluded in Campbell, contrary to Hi-dalgo, that a conviction set aside under the[*304] FYCA could be considered at sentencing for a later crime. Campbell, 724 F.2d at 813.