United States v. Keith O'Neal Knight , 154 F. App'x 798 ( 2005 )

[DO NOT PUBLISH]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
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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
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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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