                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    January 7, 2014
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 13-3256
                                                          (D. Kansas)
 KEITH V. WEATHERSBY,                           (D.C. No. 2:13-CV-02292-JWL)

              Defendant - Appellant.


                                       ORDER


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Mr. Keith Weathersby was convicted in federal court in 2002.                   He

unsuccessfully sought relief in the district court under 28 U.S.C. § 2255 and wants

to appeal.   To appeal, however, Mr. Weathersby must obtain a certificate of

appealability. The district court declined to issue this certificate, and Mr. Weathersby

asks our court for one. We deny the request because we lack statutory power to issue

a certificate of appealability for the argument made by Mr. Weathersby.

      At sentencing, the district court applied the federal sentencing guidelines and

pinpointed Mr. Weathersby’s criminal history in Zone III based on eight criminal-

history points for convictions in state court. Mr. Weathersby claims that the district

court should resentence him because two of the state-court convictions were
expunged in 2012 and 2013 under Section 1203.4 of the California Penal Code. The

district court denied the request, reasoning that relief under Section 1203.4 of the

California Penal Code does not eliminate the criminal-history points for the two state-

court convictions. Mr. Weathersby appeals this ruling, arguing that it constituted

error under the federal sentencing guidelines.

      Before we can consider this argument, we must consider our authority to

address the merits. We can address the merits only if Mr. Weathersby justifies

issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2)(B) (2006); Fed.

R. App. P. 22(b)(1). And this certificate can only be issued “if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2) (2006).

      Rather than allege the violation of a constitutional right, Mr. Weathersby

argues that the district court misapplied the sentencing guidelines by declining to

conduct a new sentencing proceeding after two of the state-court convictions had

been expunged. 1 The problem, however, is that this argument rests on the sentencing


1
       The California statute authorizes a court to “set aside the verdict of guilty” in
certain circumstances. Cal. Penal Code § 1203.4(a)(1) (2004). The statute goes on
to state that “in any subsequent prosecution of the defendant for any other offense,
the prior conviction may be pleaded and proved and shall have the same effect as if
the probation had not been granted or the accusation or information dismissed.” Id.
The Ninth Circuit Court of Appeals has held that convictions set aside under Cal.
Penal Code § 1203.4 are not “expunged” for purposes of United States Sentencing
Guideline 4A1.2(j). United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008);
accord Valentine v. United States, 221 F.3d 1346 (8th Cir. June 29, 2000)
(unpublished; per curiam).

                                          -2-
guidelines rather than the federal constitution. Because the argument is not based on

the constitution, we must decline to issue a certificate of appealability. See United

States v. Harfst, 168 F.3d 398, 400 (10th Cir. 1999) (stating that “nonconstitutional

sentencing issues . . . would not support issuance of a certificate of appealability

because they do not assert the denial of a constitutional right”); see also United States

v. Christensen, 456 F.3d 1205, 1206 (10th Cir. 2006) (holding that the court could not

grant a certificate of appealability because the § 2255 claim, based on the Armed

Career Criminal Act, 18 U.S.C. § 924, did not involve the constitution). And in the

absence of a certificate of appealability, we must dismiss the appeal.


                                  Entered for the Court



                                  Robert E. Bacharach
                                  Circuit Judge




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