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U.S. v. Bays, Jr., 09-30124 (12-17-09). "Pardon me," asked the defendant on appeal from a drug and gun sentence, "but shouldn't a pardon of a state conviction not count for criminal history?" A pardon, answers the 9th, only does not count if it removes the conviction completely and treats it like it never occurred. That did not happen here. The 9th (Tallman joined by Gould and Benitez) start with U.S.S.G. 4A1.2 and application note 10, which concerns the counting of criminal convictions and pardons and expungements. The Guidelines draw a distinction between expungements and pardons, and note 10 states that convictions which are pardoned or set aside for reasons "unrelated to innocence or errors of law" are to be counted. Pardons, for example, to restore civil rights fall into this category. The Idaho Commission of Pardons and Parole had pardoned defendant for his state conviction. There are no state cases to explain the scope of the pardon. The 9th, though, believes that the power only removes the stigma and effect, but does not erase or expunge the conviction. The 9th also looks at other Idaho statutes that give state courts power to expunge convictions. Lastly, the Idaho Commission can also arguably revoke relief and this weighs against the conviction being a "nullity." Thus, bottom line, the Idaho Commission's pardon is not an expungement, and does not effect the innocence or the fact that a conviction took place, and so should be counted.

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