                                                                           FILED
                           NOT FOR PUBLICATION                              APR 29 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50055

              Plaintiff - Appellee,              D.C. No. 2:03-cr-00570-TJH-9

  v.
                                                 MEMORANDUM *
RAFAEL ALEMAN MARTINEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Terry J. Hatter, District Judge, Presiding

                             Submitted April 8, 2010 **
                               Pasadena, California

Before: PREGERSON and THOMPSON, Circuit Judges, and CONLON, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
      The defendant, Rafael Aleman Martinez, appeals his sentence for conspiracy

to manufacture and distribute methamphetamine. The district court sentenced the

defendant to the 10-year mandatory minimum sentence under the United States

Sentencing Guidelines because he had a prior firearms conviction that rendered

him ineligible for safety valve relief under 18 U.S.C. § 3553(f). We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.

      In 1997, the defendant plead no contest to exhibiting a firearm in violation

of California Penal Code § 417(A)(2). In 2004, the defendant plead guilty to

conspiracy to manufacture and distribute methamphetamine in federal court. After

his guilty plea, but prior to his sentencing for the methamphetamine conviction, the

defendant filed a “Petition for Expungement,” pursuant to California Penal Code §

1203.4, for his 1997 firearms conviction. The Los Angeles Superior Court granted

the Petition, “sett[ing] aside and vacat[ing]” the defendant’s guilty plea for the

firearms conviction.

      The defendant contends that the district court erred in concluding that he

was ineligible for safety valve relief because of his prior firearms conviction.

According to the defendant, because his prior firearms conviction was “expunged”

under California Penal Code § 1203.4, it could no longer be counted as part of his

criminal history under the Sentencing Guidelines, and he was therefore entitled to


                                           2
safety valve relief. See U.S.S.G. § 4A1.2(j) (“Sentences for expunged convictions

are not counted . . . .”).

       In Alba-Flores, however, we confirmed that California Penal Code “section

1203.4 relief does not result in an expungement” for the purpose of safety valve

relief under the Sentencing Guidelines. 577 F.3d 1104, 1108 (9th Cir. 2009); see

also United States v. Hayden, 255 F.3d 768, 774 (9th Cir. 2001) (“A conviction set

aside pursuant to California Penal Code section 1203.4 is not ‘expunged’ under

Sentencing Guideline § 4A1.2(j).”); United States. v. Stoterau, 524 F.3d 988, 1001

(9th Cir. 2008) (same).

       The Sentencing Guidelines make clear that where, as here, a prior conviction

is “set aside . . . for reasons unrelated to innocence or errors of law . . . [s]entences

resulting from such convictions are to be counted.” U.S.S.G. § 4A1.2, cmt. n.10;

see also id. at cmt. n.6. The defendant sought to set aside his prior firearms

conviction because he had “fulfilled the conditions of [his] probation.” Because

the defendant’s prior firearms conviction was not expunged or set aside under the

Sentencing Guidelines on the basis of innocence or legal error, it “remained

countable,” Alba-Flores, 577 F.3d at 1111, even after the California Court’s order

pursuant to California Penal Code § 1203.4.




                                            3
      The defendant argues that Hayden, on which our decision in Alba-Flores

relied, is no longer good law, because after Hayden was decided, California added

the word “expungement” to its § 1203.4 order form. This argument lacks merit.

See Alba-Flores, 577 F.3d at 1108, 1111 n.14; see also Stoterau, 524 F.3d at 1001

(citing Hayden with approval).

      AFFIRMED.




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