                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           November 15, 2005
                              No. 05-11787
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                      D. C. Docket No. 04-00276-CR-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

KEITH O'NEAL KNIGHT,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (November 15, 2005)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Keith O’Neal Knight appeals his 21-month sentence for possession with
intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). On appeal, Knight argues that the district court erred by considering his

prior drug conviction under the Georgia First Offender Act (“GFOA”) in

determining his criminal history category. According to Knight, the GFOA

expunged his conviction, and, pursuant to U.S.S.G. § 4A1.2, it should not have

been counted. In support of his argument, Knight cites United States v. Hidalgo,

932 F.2d 805 (9th Cir. 1991), in which the Ninth Circuit held that a defendant’s

criminal conviction, which had been “‘set aside’ pursuant to the California Welfare

and Institutions Code which provided for the release of a sentenced juvenile from

‘all penalties and disabilities resulting from the offense or crime for which he or

she was committed,’” was “‘expunged’ and therefore not properly considered in

the court’s criminal history calculation.” Knight acknowledges, however, that we,

in United States v. Shazier, 179 F.3d 1317 (11th Cir. 1999), held that a defendant’s

conviction for cocaine possession in Louisiana, for which he later received a First

Offender pardon, should not be considered expunged, and, consequently, should be

counted in the calculation of his criminal history category. Knight argues that

Shazier should not be “deemed controlling authority,” as the GFOA broadly states

that a “defendant shall not be considered to have a criminal conviction.”

      “We review questions of law arising under the Sentencing Guidelines de



                                           2
novo.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (internal

quotations and citation omitted). Section 4A1.2, governing the computation of

criminal history, specifies that “[s]entences for expunged convictions are not

counted.” U.S.S.G. § 4A1.2(j). The commentary to § 4A1.2 states that:

      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.

U.S.S.G. §4A1.2, comment. (n.10).

      The GFOA permits a defendant, who previously has not been convicted of a

felony, to enter a guilty plea, after which the court may, without entering an

adjudication of guilt, defer further proceedings and place the defendant on

probation. Ga. Stat. § 42-8-60(a)(1). If the defendant successfully completes

probation, he “shall be discharged without court adjudication of guilt,” and that

discharge “completely exonerate[s] the defendant of any criminal purpose . . . and

the defendant shall not be considered to have a criminal conviction.” Ga. Stat.

§ 42-8-62(a). Although applicable records must indicate that the defendant has

been exonerated, the contents of those records shall not “be expunged or destroyed

as a result of that discharge.” Id.

      In State v. C.S.B., 297 S.E.2d 260, 261-62 (Ga. 1982), the Supreme Court of

                                          3
Georgia considered the state’s appeal from a Superior Court order granting a

“Petition to Expunge Record,” following the petitioner’s successful completion of

probation under the GFOA. The court held that a person, who has successfully

completed probation and is discharged without adjudication of guilt under the first

offender statute, is not entitled to expungement of records, noting that

“expungement of the records of first offender treatment of criminal defendants

runs contrary to the intent and the practical operation of the [GFOA].” Id. at 262-

63. The Supreme Court of Georgia also has noted that, in enacting the GFOA, the

Georgia Legislature clearly intended to protect defendants “against the stigma of a

criminal record.” Matthews v. State, 493 S.E.2d 136, 140 (Ga. 1997) (holding that

“unless there is an adjudication of guilt, a witness may not be impeached on

general credibility grounds by evidence of a first offender record”); see also

Witcher v. Pender, 392 S.E.2d 6, 8 (Ga. 1990).

      Upon review of the record and consideration of the briefs of the parties, we

find no reversible error. Because Knight’s conviction under the GFOA was not

expunged, the district court properly included it in the calculation of his criminal

history category. Consequently, we affirm Knight’s sentence.

      AFFIRMED.




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