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Federal criminal history points calculations

Los Angeles, CA |

I have a previous state case in which I received 3 years probation for a misdemeanor. After 1 1/2 years served on probation I had my case expunged and was released from probation.

Now I have been FEDERALLY indicted for another case, in calculating my criminal history points does that expunged misdemeanor count as one point?

see also U.S.S.G. § 4A1.2 cmt. n.10
(prior convictions that have been set aside are to be counted;
however, expunged convictions are not counted).

Attorney Answers 2

  1. As there is no expungement in CA, your prior is likely to be counted. PC 1203.4 which is what you probably had done is not an expungement. It is a dismissal of a conviction. Your record still shows the arrest, conviction and now a dismissal.

  2. Unfortunately, there is substantial case law in the Ninth Circuit establishing that 1203.4 relief is not an expungement within the meaning of U.S.S.G. 4a1.1. There is also case law about early termination of probation entered after the commission of a federal offense. You do not give dates, nature of the charges or time in custody, all of which may affect the criminal history category calculations.

    But that is just as well since, you should talk to your lawyer in the federal case and she or he will do a guidelines calculation to give you an idea of what you are looking at. Of course, the lawyer can also talk to you about defenses to the charges and give you general legal advice regarding your specific case.

    Having said that, you lawyer can also talk to you about post-Booker approaches to sentencing if your case seems headed in that direction. the Guidelines are now only guidelines and you can be creative in the right case.

    So, talk to your lawyer and good luck!

    This is not legal advice. In order to get legal advice, you need to retain a lawyer and establish an attorney client relationship. So, talk to your lawyer!

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