                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 04-10192
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-03-00194-LRH
NATHAN VALERIO,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                for the District of Nevada
        Larry R. Hicks, District Judge, Presiding

                 Argued and Submitted
       December 9, 2004—San Francisco, California

                   Filed March 28, 2006

   Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and
            Ronald M. Gould, Circuit Judges.

                Opinion by Judge Kleinfeld




                           3365
3368               UNITED STATES v. VALERIO
                         COUNSEL

Arthur L. Allen, Assistant Federal Public Defender, Las
Vegas, Nevada, for the appellant.

Brian J. Quarles, Assistant United States Attorney, Las Vegas,
Nevada, for the appellee.


                          OPINION

KLEINFELD, Circuit Judge:

   We must decide whether a person has a “conviction” for
purposes of the federal felon in possession of a firearm stat-
ute, under a New Mexico deferred sentence procedure. There
are also evidentiary issues.

                             Facts

   The Las Vegas Metropolitan Police Department sent an
undercover informant to Valerio’s home to try to buy a gun
from him. The informant, who was surreptitiously recording
their conversation, told Valerio that he was a convicted felon,
yet Valerio sold him a .357 magnum.

   The police got a search warrant for Valerio’s house, and
found a 12-gauge shotgun and a .22 revolver. Valerio had pre-
viously been convicted of a felony. He was convicted of felon
in possession of a firearm and sale of a firearm to a felon
under 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 922(d).

   Valerio entered a guilty plea after the jury had already been
selected. The government had disclosed that it did not intend
to put its undercover informant on the witness stand. It pro-
posed to use the tape recording as evidence that Valerio sold
a gun to someone who told him that he was a felon. That
                          UNITED STATES v. VALERIO                   3369
could be proved with Valerio’s words on the recording,
whether the informant was telling Valerio the truth or not. To
prove that the informant really was a felon, the government
planned to avoid the hearsay problem that using the tape
would pose by instead having the informant’s probation offi-
cer testify about the informant’s felony conviction. Had the
case proceeded through trial, the judge proposed to admonish
the jury that nothing the informant said on the tape could be
considered by the jury for its truth, but only to give context
so that the jury could understand what Valerio was respond-
ing to when he spoke. Valerio preserved his objection to
admissibility of the tape recording.

   Valerio’s felony conviction, if it was one, was in state court
under New Mexico law. He preserved by motion his argument
that he was not a convicted felon at all, because his deferred
imposition of sentence and subsequent discharge under state
law invalidated that status. Valerio had pleaded guilty in a
prior New Mexico case to felonious burglary. The judgment
in that earlier state case said that he was “found and adjudged
guilty and convicted.” The court entered an order “deferring
the imposition of sentence” pursuant to a New Mexico statute1
and put him on probation for three years. He got an early “sat-
     1
   New Mexico Statute 31-20-3 (1978) (“Upon entry of a judgment of
conviction of any crime not constituting a capital or first degree felony,
any court having jurisdiction when it is satisfied that the ends of justice
and the best interest of the public as well as the defendant will be served
thereby, may either:
A.       enter an order deferring the imposition of sentence;
B. sentence the defendant and enter an order suspending in whole or in
part the execution of the sentence;
C. or commit the convicted person, if convicted of a felony and not com-
mitted for diagnostic purposes within the twelve-month period directly
preceding that conviction, to the department of corrections for an indeter-
minate period not to exceed sixty days for purposes of diagnosis, with
direction that a court be given a report when the diagnosis is complete as
to what disposition appears best when the interest of the public and the
individual are evaluated.”).
3370                    UNITED STATES v. VALERIO
isfactory discharge from probation” in an “order of dismiss-
al.” The order “certifies that the defendant is relieved of any
obligations imposed on him” by the previous order “and satis-
fied his criminal liability,” so “this cause is hereby dismissed
and the Probation Officer is relieved from any further supervi-
sion of the Defendant.”

  The district court denied Valerio’s motion to dismiss and
denied his motion to exclude the tape. He pleaded guilty
before the case was submitted to the jury, subject to preserv-
ing his objections on these issues.

                                 Analysis

I.       The felon in possession case.

   This section deals only with the felon in possession convic-
tion, not the sale of a firearm to a felon conviction.

     A.    Did Valerio have a felony conviction?

   We review de novo a district court’s order denying a
motion to dismiss when the order turns entirely on interpreta-
tion of federal and state statutes.2

  [1] Under the federal felon in possession statute, state law
controls on whether a person has a “conviction,” and “ex-
punged” felonies disappear for purposes of determining
whether subsequent possession of a gun is a federal crime
unless the felon is expressly told otherwise:

         What constitutes a conviction of such a crime shall
         be determined in accordance with the law of the
         jurisdiction in which the proceedings were held. Any
         conviction which has been expunged, or set aside or
         for which a person has been pardoned or has had
     2
      See United States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001).
                     UNITED STATES v. VALERIO                    3371
      civil rights restored shall not be considered a convic-
      tion for purposes of this chapter, unless such pardon,
      expungement, or restoration of civil rights expressly
      provides that the person may not ship, transport, pos-
      sess, or receive firearms.3

  The district court correctly held that Valerio cannot prevail
under this provision because he was indeed convicted under
New Mexico law, and his conviction was never expunged or
otherwise invalidated for purposes of the federal statute.

  [2] When a court must determine whether a state conviction
has been invalidated for purposes of the federal felon in pos-
session statute, the federal statute requires the court to pro-
ceed along this path:

      1.   Use state law to determine whether the defen-
           dant has a “conviction.” If not, the defendant is
           not guilty. If so, go to step 2.

      2.   Determine whether the conviction was
           expunged, set aside, the defendant was par-
           doned, or the defendant’s civil rights were
           restored. If not, the conviction stands. If so, go
           to step 3.

      3.   Determine whether the pardon, expungment, or
           restoration of civil rights expressly provides that
           the defendant may not ship, transport, possess,
           or receive firearms. If so, the conviction stands.
           If not, the defendant is not guilty.

Valerio’s problem is that, although he would prevail if he got
to the third step, the “unless” clause, he cannot get past the
second. The three step sequence is the only sound way to read
the federal statute: (1) “conviction . . . shall be determined in
  3
   18 U.S.C. § 921(a)(20).
3372                 UNITED STATES v. VALERIO
accordance with the law of the jurisdiction . . . .”; (2) “convic-
tion which has been expunged . . . shall not be considered a
conviction; (3) “unless such . . . expungement . . . expressly
provides that the person may not . . . possess . . . firearms.”4

      1.   Was Valerio “convicted”?

  [3] State law determines whether the defendant has a felony
conviction, so New Mexico law controls whether Valerio’s
deferred sentence for burglary was a “conviction.” It was.
There is no question in this case that the burglary was a felony
under New Mexico law.

   [4] What might raise a serious question in some jurisdic-
tions is that Valerio was never sentenced for the burglary. A
judgment of conviction often requires a sentence as well as a
guilty plea. Valerio pleaded guilty, but imposition of sentence
was deferred. But under New Mexico law, a guilty plea is
enough to establish a conviction, even though the defendant
is never sentenced.

   The New Mexico Supreme Court so held in Padilla v. State.5
In New Mexico, there is a “conviction” when the defendant
pleads guilty:

      [t]here is some merit to the contention that upon dis-
      missal of criminal charges under the deferred sen-
      tence provision . . . there has been no prior
      conviction. However, this court in previous cases has
      determined that the contrary is true, holding that a
      “conviction” refers to a finding of guilty and does
      not include the imposition of a sentence.6
  4
    18 U.S.C. § 921(a)(20).
  5
    Padilla v. State, 568 P.2d 190 (N.M. 1970).
  6
    Id. at 192 (emphasis added).
                       UNITED STATES v. VALERIO                          3373
There is no distinction that makes a difference between that
case and this one, and Padilla controls. Thus, Valerio was
“convicted” under New Mexico law.

      2.   Was the conviction invalidated?

   The next step under the federal statute is to determine
whether the conviction was expunged, set aside, the defendant
was pardoned, or the defendant’s civil rights were restored.
This determination depends on the “order of dismissal” that
“certifies that the defendant is relieved of any obligations
imposed on him” by the previous order “and satisfied his
criminal liability,” so “this cause is hereby dismissed and the
Probation Officer is relieved from any further supervision of
the Defendant.”

   [5] Under New Mexico law, such a termination of a crimi-
nal proceeding does not amount to any of the kinds of invali-
dation of a conviction specified by the federal felon in
possession statute. The New Mexico statute says that a defen-
dant who successfully obtains a dismissal of a suspended
imposition of sentence is “relieved of any obligations.”7 This
could arguably be read to amount to expungement, but that is
not how the New Mexico courts have construed it. New Mex-
ico has another procedure called conditional discharge, which,
like an expungement, does eliminate the conviction, under
State v. Herbstman8 and State v. Lopez.9 But because deferred
imposition of sentence, Valerio’s procedure, is preceded by an
adjudication of guilt while conditional discharge is not, State
  7
     “Whenever the period of deferment expires, the defendant is relieved
of any obligations imposed on him by the order of the court and has satis-
fied his criminal liability for the crime, the court shall enter a dismissal of
the criminal charges.” New Mexico Revised Statutes Annotated § 31-20-
9.
   8
     State v. Herbstman, 974 P.2d 177, 180 (N.M. App. 1998).
   9
     State v. Lopez, 993 P.2d 767, 770 (N.M. App. 1999).
3374                  UNITED STATES v. VALERIO
v. Brothers10 and State v. Padilla11 hold that a conviction still
exists when the imposition of sentence is deferred.12

   [6] This conclusion compels us to affirm the felon in pos-
session conviction. This is counterintuitive for two reasons.
First, Valerio is not a convicted felon for purposes of the state
felon in possession statute.13 As far as the State of New Mex-
ico is concerned, he is entitled to possess firearms. The reason
why is that the state statute requires a sentence as well as a
conviction,14 and Valerio’s burglary sentence was deferred
and never imposed. The Eleventh Circuit recently decided a
case where, despite the felony conviction, the defendant was
entitled under state law to possess firearms, and likewise ruled
that it made no difference to the defendant’s rights under the
federal statute.15 The federal government criminalizes quite a
few things that the laws of various states do not, such as pos-
session of eagle feathers.16

   [7] Second, and more troubling, an opinion of the New
Mexico Attorney General said that persons in Valerio’s situa-
tion were entitled to possess firearms under the federal statute.
The 1988 opinion of the New Mexico Attorney General’s
Office says that the federal right to possess firearms is
  10
      State v. Brothers, 59 P.3d 1268, 1271 (N.M. App. 2002).
  11
      Padilla v. State, 568 P.2d 190, 192 (N.M. 1970).
   12
      We see no reason to doubt that the Supreme Court of New Mexico
would reach the same conclusions these intermediate appellate court deci-
sions did. See Arizona Elec. Power Co-op., Inc. v. Berkeley, 59 F.3d 988,
991 (9th Cir. 1995) (in the absence of a decision by the state’s highest
court, a federal court must predict how that court would resolve an issue
by looking to the decisions of that state’s intermediate appellate courts).
   13
      New Mexico Statute § 30-7-16 (1978); State v. Lopez, 993 P.2d 767,
770 (N.M. App. 1999).
   14
      Id. at 769.
   15
      United States v. Nix, ___ F.3d ___, 2006 WL 301891 (11th Cir. Feb.
9, 2006).
   16
      16 U.S.C. § 668(a).
                      UNITED STATES v. VALERIO                       3375
restored under New Mexico law when a person successfully
completes the period of deferred imposition of sentence,
because the dismissed case “would not be considered a ‘con-
viction’ for purposes of 18 U.S.C. § 922.”17 The opinion can-
not be reconciled with the New Mexico cases discussed
earlier. The Attorney General’s opinion says that because “the
right to vote is automatically restored upon successful com-
pletion of the period of deferment [of imposition of sentence]
. . . successful completion of a deferred sentence under New
Mexico law would not be considered a ‘conviction’ for pur-
poses of 18 U.S.C. § 922.”18

   Those civil rights that were restored to Valerio, were
restored by operation of law, not by a certificate. Had they
been restored by a certificate that told him he was no longer
convicted and that his civil rights were restored, then the
“anti-mousetrapping rule” would require that state to “tell the
felon point blank that guns are not kosher” in his certificate
for the federal prohibition on possession to apply.19 Valerio’s
problem, though, is that he cannot get to the third step of the
federal analysis, where the “anti-mousetrapping rule” oper-
ates. The reason is that his civil rights were not restored for
purposes of the federal statute.

   [8] The problem with the New Mexico Attorney General’s
analysis is that it treats restoration of the right to vote as suffi-
cient for the federal statutory phrase, “has had civil rights
restored,” but the federal cases do not. Though the federal
statutory phrase does not require that all of a person’s civil
rights have been restored, neither is it satisfied where any of
his civil rights have been restored. Circuit law establishes that
  17
     Id.
  18
     Id (internal citations omitted).
  19
     United States v. Herron, 45 F.3d 340, 343 (9th Cir. 1995) (quoting
United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990), cert. denied,
498 U.S. 859 (1990)).
3376                  UNITED STATES v. VALERIO
the restoration of civil rights must be more than de minimis
and “must be substantial but need not be complete.”20

   Under New Mexico law, Valerio’s civil right to vote has
been restored.21 However, we have not found a case that says
restoration of the right to vote is sufficient. A legislature
might choose to allow convicted felons to vote for reasons
unrelated to their dangerousness, so it is not sufficient to
amount to restoration of civil rights for purposes of the federal
statute.

   [9] By contrast to the right to vote, no civil right could be
more relevant to a felon’s future dangerousness than the right
to possess firearms. And New Mexico has restored Valerio’s
right to possess firearms.22 But that is not enough.

     In Congress’ view, existing state laws ‘provide less
     than positive assurance that the person in question no
     longer poses an unreasonable risk of dangerousness.’
     Congress meant to keep guns away from all offend-
     ers who, the Federal Government feared, might
     cause harm, even if those persons were not deemed
     dangerous by the state.23

We held in United States v. Andaverde,24 that a state right to
possess a shotgun did not suffice, in the absence of the right
to vote, to serve on a jury, and to hold public office. We held
in United States v. Meeks25 that only if a felon’s civil rights
are substantially restored do we proceed to the next step,
   20
      United States v. Herron, 45 F.3d 340, 342 (9th Cir. 1995) (quoting
United States v. Dahms, 938 F.2d 131, 133 (9th Cir. 1991)).
   21
      N.M. Rev. Stat. § 31-13-1.
   22
      N.M. Stat. § 30-7-16 (1978).
   23
      Caron v. United States, 524 U.S. 308, 315 (1998) (quoting Dickerson
v. New Banner Inst., Inc., 460 U.S. 103, 120 (1983)).
   24
      United States v. Andaverde, 64 F.3d 1305 (9th Cir. 1995).
   25
      United States v. Meeks, 987 F.2d 575 (9th Cir. 1993).
                       UNITED STATES v. VALERIO                        3377
determining whether the state has restricted his right to pos-
sess firearms.26 Likewise the Fifth Circuit held in United
States v. Thomas27 that “it simply does not matter what the
state law provides concerning possession of firearms,” in the
absence of a more complete restoration of civil rights.28

   In United States v. Dahms,29 we held that a convicted felon
who regains “the rights to vote, to sit on a jury and to hold
public office in the state in which he was originally convicted
has had his rights substantially restored under § 921(a)(20).”30
All the cases we have found from other circuits use the same
three civil rights as the test of whether civil rights have been
restored for the federal felon in possession crime.31 Distin-
guishing Dahms, we held in United States v. Meeks32 that even
where the felon had regained his right to vote and to hold
most public offices, where the felon could not serve on a jury
or hold the public offices of sheriff or highway patrol officer
the state’s restoration of civil rights was not substantial
enough to entitle him to possess firearms under the federal stat-
ute.33 The Fourth Circuit likewise held that there is insuffi-
cient restoration of civil rights where the state did not restore
the right to serve on a jury.34
  26
      Id. at 578.
  27
      United States v. Thomas, 991 F.2d 206 (5th Cir. 1993).
   28
      Id. at 215.
   29
      United States v. Dahms, 938 F.2d 131 (9th Cir. 1991).
   30
      Id. at 133 (following the Sixth Circuit’s rule in United States v. Cas-
sidy, 899 F.2d 543 (6th Cir. 1990)).
   31
      See e.g., United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990);
United States v. Thomas, 991 F.2d 206 (5th Cir. 1993); United States v.
Metzger, 3 F.3d 756 (4th Cir. 1993); McGrath v. United States, 60 F.3d
1005 (2nd Cir. 1995); cf. United States v. Ramos, 961 F.2d 1003 (1st Cir.
1992).
   32
      United States v. Meeks, 987 F.2d 575, 578 (9th Cir. 1993).
   33
      Id.
   34
      United States v. Metzger, 3 F.3d 756, 759 (4th Cir. 1993).
3378                   UNITED STATES v. VALERIO
   [10] This case is controlled by Meeks. Valerio’s right to
serve on a jury and his right to hold public office have not
been restored.35 That means he does not get past the second
step of the analysis, restoration of civil rights, so we do not
reach the third step, whether the state has restricted his right
to possess firearms. The district court correctly denied his
motion to dismiss.

II.    Admission of the Tape

   The government argues that the admissibility of the tape
recording is moot because Valerio pleaded guilty. That is
incorrect. He objected to admission of the tape in limine, and
the court overruled the objection. That suffices to preserve the
issue under Rule 11(a)(2).36 An in limine ruling that evidence
to which objection is made would nevertheless be admitted is
analogous to denial of a pretrial motion to suppress.37

   [11] The district court did not abuse its discretion38 in ruling
that the audiotape would be admissible subject to an admoni-
tion that the jury could not consider the informant’s words on
the tape for their truth, but only to give context to what
Valerio said.39 Valerio’s statements on the tape were admis-
  35
      N.M. Rev. Stat. §§ 31-13-1, 38-5-1.
  36
      Rule 11(a)(2) (“With the consent of the court and the government, a
defendant may enter a conditional plea of guilty . . . reserving the right to
have an appellate court review an adverse determination of a specified
pre-trial motion.”).
   37
      See United States v. Smith, 389 F.3d 944 (9th Cir. 2004) (reviewing,
on the merits, the denial of a motion to suppress evidence that was
reserved in a conditional guilty plea).
   38
      Our review is for abuse of discretion. United States v. Lynch, 367 F.3d
1148, 1159 (9th Cir. 2004).
   39
      The district court ruled that “the Court will give a cautionary instruc-
tion as to any statements made by the confidential informant on the tape.
They clearly are not evidence and cannot be used as any form of evidence
and can only provide context to the statement of the defendant.”
                      UNITED STATES v. VALERIO             3379
sions.40 Knowing what Valerio meant by what he said would
be difficult without knowing what words he was responding
to. Nothing the undercover informant said would be consid-
ered by the jury for its truth, but only to give context to what
Valerio said, under the admonition. The informant’s statement
to Valerio that he was a felon could not be considered by the
jury to prove that he was.41 His probation officer’s testimony
would be used for that.

  [12] Valerio’s statements on the tape, and the context pro-
vided by the informant regardless of whether the informant
was telling the truth, were highly relevant to providing the
mental element of the crime, “knowing or having reasonable
cause to believe that”42 the informant was a felon. And there
was no hearsay or confrontation clause barrier to proving that
mental element with the tape subject to the admonition.

  No doubt defense counsel was loaded for bear with
impeachment questions that he could have used, had the infor-
mant taken the stand. Quite possibly that is why the govern-
ment did not want to put him on. But it just did not matter to
what the tape proved whether the informant was a liar.

                              Conclusion

   The felon in possession conviction (but not the sale of a
firearm to a felon conviction) is troubling, because Valerio is
guilty under Ninth Circuit and New Mexico law of a crime for
possessing a firearm even though the New Mexico Attorney
General’s opinion erroneously told him he had a right to do
so. But the result is compelled by circuit precedent and con-
sistent with precedent from our sister circuits.
  40
     Fed. R. Evid. § 801(d)(2).
  41
     18 U.S.C. § 922(d).
  42
     Id.
3380                 UNITED STATES v. VALERIO
  We AFFIRM except that we grant a remand to the district
court for the limited purpose of consideration of the sentenc-
ing issues raised by United States v. Ameline.43




  43
    United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
