                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0214n.06

                                         Case No. 19-5279

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                    Apr 15, 2020
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )      ON APPEAL FROM THE UNITED
                                                      )      STATES DISTRICT COURT FOR
v.                                                    )      THE EASTERN DISTRICT OF
                                                      )      KENTUCKY
RAMIRO RICO DE LEON,                                  )
                                                      )
       Defendant-Appellant.                           )


       BEFORE: CLAY, COOK and WHITE, Circuit Judges.

       COOK, Circuit Judge. After Ramiro Rico De Leon pled guilty to a controlled substance

offense, the district court sentenced him to prison followed by supervised release. De Leon

challenges both the court’s computation of his sentencing range and a post-release condition.

Because the court neither abused its discretion in calculating the sentencing range nor plainly erred

in imposing the condition, we AFFIRM.

                                                 I.

                               A. De Leon’s Criminal History Score

       In calculating De Leon’s criminal history score, the district court assessed one point for a

2013 Kentucky controlled substance conviction that Kentucky later voided. De Leon posits that

the court abused its discretion by counting that voided point in sentencing him.
Case No. 19-5279, United States v. De Leon


       The Sentencing Guidelines assign at least one criminal history point to “each prior

sentence.” U.S.S.G. § 4A1.1. “The term ‘prior sentence’ means any sentence previously imposed

upon adjudication of guilt.” U.S.S.G. § 4A1.2(a)(1). But “[s]entences for expunged convictions

are not counted.” U.S.S.G. § 4A1.2(j). Did Kentucky expunge De Leon’s 2013 conviction (and

sentence)? If so, the district court abused its discretion by including it. Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Shor, 549 F.3d 1075, 1077 (6th Cir. 2008).

       We review a district court’s criminal history score calculations for abuse of discretion,

accepting factual findings unless clearly erroneous and scrutinizing anew its legal conclusions.

Gall, 552 U.S. at 51–52; United States v. Rayyan, 885 F.3d 436, 440 (6th Cir.), cert. denied, 139 S.

Ct. 264 (2018); United States v. Talley, 470 F. App’x 495, 496 (6th Cir. 2012).

       De Leon contends that Kentucky effectively expunged his conviction when it “void[ed]”

and “seal[ed]” it, arguing that a void conviction “is tantamount to” and “equivalent to an

expunged” one. The Government disagrees, maintaining that Kentucky’s voiding here did not

equate to “expunging” under the Guidelines.

       Because the answer to the question is not self-evident from the text of the Guideline, we

consult the Guidelines Commentary that addresses the differing import accorded to various

procedures by which states may “set aside” prior convictions. See U.S.S.G. § 4A1.2, cmt. n.10.

The Commentary confirms the distinction the drafters accorded to post-conviction indulgences

“for reasons unrelated to innocence or errors of law.” Id. That is, if the convicting jurisdiction

later grants a pardon, the Commentary explains that those convictions are to be counted in the

defendant’s criminal history score, but expunged convictions (innocence or legal error established)

are not counted. Id.




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Case No. 19-5279, United States v. De Leon


       Our cases concerning which type of prior convictions merit criminal history points scoring

adhere to this Commentary by distinguishing between those post-conviction developments driven

by guilt concerns, and those that stem from some form of indulgence. In Shor, Michigan sentenced

the juvenile defendant under a diversion program featuring no “civil disability or loss of right or

privilege.” 549 F.3d at 1076–78. We upheld the district court’s counting that conviction in the

criminal history score as within its discretion, referencing the “quite clear” Guidelines

Commentary “distinguish[ing] between” convictions that a jurisdiction expunged and those

retaining an “adjudication of guilt.” Id. at 1078 (citing U.S.S.G. § 4A1.2, cmt. n.10). Because

Steven Shor’s “adjudication of guilt” persisted under his diversion program, “the district court

properly counted” the conviction. Id. at 1077–78.

       We made a similar distinction in United States v. Sturgill, 761 F. App’x 578 (6th Cir.),

cert. denied sub nom. Owens v. United States, 139 S. Ct. 2704 (2019). Though Kentucky

“expunged” three of Melissa Owens’s convictions, we upheld their inclusion in her criminal

history score because “Kentucky’s expungement procedure does not demand a showing of

innocence or legal error, and [the defendant] offered nothing at sentencing to show that such

considerations led to the expungements in her case.” Id. at 582–83.

       For the same reasons, the district court sentenced within its discretion here. Yes, Kentucky

voided De Leon’s conviction. But the sentencing court found that he failed to establish that

Kentucky did so due to circumstances affecting validity or guilt. See United States v. French, 974

F.2d 687, 701 (6th Cir. 1992) (“The burden is upon the defendant to prove the invalidity and/or

unconstitutionality of the prior conviction.”). Indeed, according to the Commonwealth’s order,

Kentucky voided the conviction because De Leon “ha[d] successfully completed the terms of

treatment, probation or sentence[.]”


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Case No. 19-5279, United States v. De Leon


       Well what about this court’s recent Havis decision, argues De Leon in response? He points

to the en banc opinion as instructing courts to avoid reliance on the Commentary to understand the

meaning of the Guidelines. But De Leon misreads the court’s decision in United States v. Havis,

927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). True, the court recognized that “the

application notes are interpretations of, not additions to, the Guidelines themselves.” Id. at 386

(quoting United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016)) (emphasis deleted). But the

court also explained that Commentary is binding when “the guideline which the commentary

interprets will bear the construction.” Id. (quoting Stinson v. United States, 508 U.S. 36, 46

(1993)). Because § 4A1.2, cmt n.10 explains the un-defined term “expunged,” and so conforms

to the permissible Commentary interpretation of the Guideline, we are bound to follow it. Id.;

United States v. Thomas, 933 F.3d 605, 610 (6th Cir. 2019) (noting that Commentary “helps

interpret” obstruction-of-justice Guideline by defining the term “obstructed”); United States v.

Buchanan, 933 F.3d 501, 514 n.2 (6th Cir. 2019) (finding Guidelines Commentary that “explains

the meaning of” an un-defined term “binding on federal courts under . . . Havis”). Havis, by

contrast, asked the Circuit to review Commentary that modified a Guideline by expanding an

existing definition. Havis, 927 F.3d at 386–87.

       De Leon also attempts to distinguish Shor and Sturgill. He faults Shor for “[f]ocusing on

the prior adjudication of guilt” rather than the permissible “future use[s]” of the defendant’s

conviction under Michigan law. Federal courts, however, need not concern themselves with state

courts’ use of state convictions. Indeed, the Guidelines Commentary directs our attention away

from such considerations and toward a simple question: has the defendant proffered evidence of a

post-conviction determination of innocence or legal error? U.S.S.G. § 4A1.2, cmt. n.10. Here, as

in Shor, no.


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Case No. 19-5279, United States v. De Leon


       His quarrel with Sturgill fares no better. De Leon points out that Kentucky voided his

conviction under different Kentucky statutes than used in Sturgill. If anything, this distinction

hurts De Leon’s case. The statute in Sturgill permits the “expungement” of certain convictions,

Ky. Rev. Stat. Ann. § 431.078, while the statutes here “void” convictions, Ky. Rev. Stat. Ann.

§§ 218A.275(8), 218A.276(8). These labels alone suggest that Kentucky never expunged De

Leon’s conviction. Plus, under Sturgill’s statute, a conviction “shall be deemed never to have

occurred,” Ky. Rev. Stat. Ann. § 431.078(6), while the provisions at bar here merely seal records

and make the void conviction “not be deemed a first offense” under Kentucky’s penal code, Ky.

Rev. Stat. Ann. §§ 218A.275(8)–(10), 218A.276(8)–(10). The district court thus proceeded within

its discretion in concluding that, even after Kentucky voided his conviction, De Leon’s

adjudication of guilt stands.

                                B. Supervised Release Condition

       De Leon contends that the court imposed an unconstitutionally vague supervised release

condition when it barred him from “frequent[ing] places where controlled substances are illegally

sold, used, distributed or administered.” Because he failed to object to this condition at sentencing,

we review for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).

       First, a word about the Government’s view that De Leon’s challenge here is not ripe for

decision. As both parties acknowledge, when it “is mere conjecture” whether the Government will

ever enforce a condition, we lack jurisdiction to consider it. United States v. Lee, 502 F.3d 447,

450–51 (6th Cir. 2007). The Government sees De Leon’s challenge as unripe because he faces

mandatory deportation upon release and thus “is extremely unlikely to be subjected to the

condition.” De Leon counters that we may review the condition now because it imposes a

“mandatory” prohibition.


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Case No. 19-5279, United States v. De Leon


       It seems this court has yet to decide whether a defendant facing deportation upon release

immediately may appeal a supervised release condition. Two other circuits have, and they found

review constitutionally permissible.     The Ninth reasoned that because a supervised release

condition “is a part of the district court’s sentence, which is a final judgment subject to immediate

appeal,” “a defendant may challenge . . . [it on] direct appeal.” United States v. Rodriguez-

Rodriguez, 441 F.3d 767, 771–72 (9th Cir. 2006). So too the Tenth: “Conditions of supervised

release form a part of the criminal judgment and thus, in the Article III sense, a challenge to them

involves a genuine case or controversy because the judgment is a final court order binding on an

incarcerated defendant at the time of his appeal.” United States v. Vaquera-Juanes, 638 F.3d 734,

736 (10th Cir. 2011).

       The Government contends that the Tenth Circuit case supports its position because the

Circuit dismissed the appeal as unripe. But as the Government recognizes, that resolution resulted

from prudential matters not affecting the question we consider here, i.e., our constitutional

jurisdiction to decide the issue. Vaquera-Juanes, 638 F.3d at 736; see also Stolt-Nielsen S.A. v.

AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010). “[W]here, as here, the issue of ripeness

goes only to prudential considerations as opposed to constitutional concerns, we are free to

exercise jurisdiction over the case.” Rucci v. Cranberry Twp., 130 F. App’x 572, 576 n.7 (3d Cir.

2005); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1013 (1992); cf. Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 167 (2014) (explaining that “a federal court’s obligation to hear

and decide cases within its jurisdiction is virtually unflagging” (citation and internal quotation

marks omitted)). “[F]or reasons of finality and judicial economy,” Rucci, 130 F. App’x at 576 n.7,

we reach the merits of De Leon’s challenge.




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Case No. 19-5279, United States v. De Leon


       As for the vagueness argument, both parties acknowledge that the challenged condition

lacks an explicit mens rea requirement. To De Leon, this renders the condition unconstitutionally

vague and “exposes [him] to strict liability for any violations.” The Government responds that a

“commonsense” reading of the challenged condition reveals “an implicit requirement that De Leon

have knowledge that a place he is frequenting is involved with drugs[.]” Because we review for

plain error, Vonner, 516 F.3d at 386, De Leon’s argument fails.

       Even where a district court errs, it does not plainly err if it “lack[ed] binding case law that

answers the question presented,” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015), or

if other circuits split on the issue, United States v. Madden, 515 F.3d 601, 608 (6th Cir. 2008).

Both situations exist here.

       This court issued one non-precedential decision addressing supervised release conditions

that don’t specify a mens rea. If anything, that case supports rejecting De Leon’s challenge. In

United States v. Smith, we rejected a similar challenge where the defendant objected to standard

conditions of supervision that the Northern District of Ohio had since clarified “to provide, among

other things, a ‘knowledge’ requirement.” 695 F. App’x 854, 858 (6th Cir. 2017). These changes

reflected corresponding revisions to the Guidelines that took effect in 2016. Id. (citing N.D. Ohio

Gen. Order No. 2016-24 App’x B; U.S.S.G. § 5D1.3(c)). In light of the intervening changes, we

declined to read the conditions at issue as imposing strict liability. Id. Here, De Leon’s judgment

shows that the Eastern District of Kentucky has likewise incorporated a knowledge requirement

into its standard conditions of supervision. Although the particular condition De Leon challenges

is a special condition and does not include an explicit knowledge requirement, as in Smith, it would

defy common sense to interpret it as imposing strict liability where it is otherwise clear that the

court has incorporated a mens rea requirement into its conditions of supervision.


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Case No. 19-5279, United States v. De Leon


       And it seems other circuits split on this same issue of whether a condition of supervision

must specify a mens rea. The Seventh Circuit struck down a condition that, if “read literally,

improperly imposes strict liability because there is no requirement that [the defendant] know or

have reason to know or even just suspect that [prohibited] activities are taking place.” United

States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) (internal quotation marks omitted). But the

Ninth and Tenth Circuits upheld similar conditions because a “reasonable” person would

understand that they require knowledge of nearby controlled substances. See United States v.

Muñoz, 812 F.3d 809, 822–23 (10th Cir. 2016); United States v. Phillips, 704 F.3d 754, 768 (9th

Cir. 2012). Given this circuit split, the district court did not plainly err. Madden, 515 F.3d at 608.

                                                 II.

       We AFFIRM.




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