*Hon. John R. Gibson, of the Eighth Circuit, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 01-1212

UNITED STATES,

Appellee,

v.

MICHAEL ROBERT DUBOVSKY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Boudin, Chief Circuit Judge,

John R. Gibson,* Senior Circuit Judge,

and Torruella, Circuit Judge.

Paul J. Haley, Law Office of Paul J. Haley, on brief, for

appellant.

Paul M. Gagnon, United States Attorney, with whom Mark E.

Howard, Assistant United States Attorney, was on brief, for

appellee.
1 "When applicable, these provisions mandate both reduction

of the defendant's offense level and judicial disregard of

statutes imposing mandatory minimum sentences." United States

v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000).

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January 29, 2002

JOHN R. GIBSON, Senior Circuit Judge. Michael Dubovsky

appeals from the sentence imposed after he pled guilty to one

count of conspiring to distribute Lysergic Acid Diethylamide

(LSD). See 21 U.S.C. §§ 841(a)(1), 846 (1994). At sentencing,

the district court determined that Dubovsky was not eligible for

the "safety valve" provisions of 18 U.S.C. § 3553(f) (1994 &

Supp. V 1999) and U.S. Sentencing Guidelines Manual § 5C1.2

(1998)1 because an earlier adjudication for possession of

marijuana, the records of which had been sealed, had not been

expunged for the purposes of U.S. Sentencing Guidelines Manual

§ 4A1.2(j) (1998). United States v. Dubovsky, No. CRIM. 99-37-

B, 2001 WL 274730 (D.N.H. Jan. 24, 2001) (unpublished

memorandum). As a result he received the mandatory minimum

sentence of ten years pursuant to 21 U.S.C. § 841(b)(1)(A)(v)

(1994). Dubovsky argues on appeal that the sealing of the

records relating to his marijuana possession charge constituted

an expungement and that therefore he should have been eligible
2 "Dubovsky failed to inform the sentencing judge of the

fact that he had been charged with another drug possession

offence in 1993 that had been continued without a finding. If

the state court judge had known of this fact, he could not have

granted Dubovsky's motion to seal." Dubovsky, 2001 WL 274730,

at *2 n.2.

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for a sentence of between forty-six and fifty-seven months. He

asks that the sentence imposed be set aside and the safety valve

considered. We affirm the sentence imposed by the district

court.

I.

In 1996, Dubovsky admitted in Massachusetts state court

to sufficient facts to support a conviction on a charge of

 possession of marijuana. The judge continued the charge

without a finding of guilt, on the condition that Dubovsky

remain outside the state during the period of continuance. In

1998, the proceedings were dismissed pursuant to Massachusetts

law. See Mass. Gen. Laws ch. 94C, § 34 (1997).

In May of 2000, Dubovsky found himself in federal

court, where he pled guilty to the unrelated drug conspiracy

charge at issue here. Thereafter, Dubovsky filed a motion in

Massachusetts state court to seal all records concerning the

earlier possession of marijuana charge. This motion was granted

on November 2, 2000.2 Dubovsky was sentenced in this case two

months later.
3 Dubovsky acknowledges that the state court complied with

all required procedures.

4 The use of the term "convictions" in § 4A1.2(j) does not

render that section inapplicable here. See Morillo, 178 F.3d

at 20-21 (treating admission of sufficient facts to support a

conviction under Massachusetts law as a guilty plea); United

States v. Stowe, 989 F.2d 261, 263 (7th Cir. 1993) (applying §

4A1.2(j) to guilty plea resulting in diversionary disposition).

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The quantity of drugs involved in Dubovsky's conspiracy

offense (more than ten grams) mandates a minimum ten-year

sentence, unless the safety valve provision is applicable. See

18 U.S.C. § 3553(f); 21 U.S.C. § 841(b)(1)(A)(v); U.S.

Sentencing Guidelines Manual § 5C1.2 (1998). The safety valve

provision is only applicable if the defendant has no more than

one criminal history point. U.S. Sentencing Guidelines Manual

§ 5C1.2 (1998). Under the guidelines, criminal history points

are assessed on the basis of prior sentences. U.S. Sentencing

Guidelines Manual § 4A1.1 (1998). When a Massachusetts court

enters a continuance without a finding in accordance with the

procedures set out in Massachusetts Rules of Criminal Procedure

12,3 that continuance is considered a prior sentence for the

purposes of § 4A1.1. United States v. Morillo, 178 F.3d 18 (1st

Cir. 1999). However, sentences for expunged convictions4 are not

counted. U. S. Sentencing Guidelines § 4A1.2(j) (1998).

What constitutes expungement for the purposes of

determining criminal history under the Guidelines is clarified
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in an application note:

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 to remove

the stigma associated with a criminal conviction.

Sentences resulting from such convictions are to

be counted. However, expunged convictions are

not counted. § 4A1.2(j).

U.S. Sentencing Guidelines Manual § 4A1.2(j), cmt. n.10 (1998).

Sentencing guideline application notes are authoritative unless

they violate the Constitution or a federal statute or are

inconsistent with the guideline. Stinson v. United States, 508

U.S. 36, 38 (1993). Thus, since excluding Dubovsky's prior

admission of marijuana possession, which we treat as a guilty

plea, see Morillo, 178 F.3d at 21, from his criminal history

calculation would have made him eligible for the safety valve

provision (as the government concedes), the crucial issue for

the district court was whether Dubovsky's adjudication had been

expunged.

The district court received briefs from both parties

concerning the use of the sealed dispositions, heard extensive

oral argument from counsel, and finally concluded that the 1996

adjudication could not be treated as expunged under the

Guidelines. Dubovsky, 2001 WL 274730, at *3. The district

court found that Dubovsky's marijuana charge was not dismissed,
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and his case was not sealed, for reasons of innocence or errors

of law, and that the related records were not completely

destroyed. Id. at *2. Therefore, Dubovsky's admission could

not be considered expunged, he was not entitled to the safety

valve, and a ten-year mandatory minimum sentence was required.

Id.

We review the district court's application of the

Sentencing Guidelines de novo. United States v. GonzalezArimont, 268 F.3d 8, 14 (1st Cir. 2001).

II.

Dubovsky's case can be seen as a story with two

chapters. In Morillo, we addressed the issue constituting the

first chapter of his story when we concluded that a continuance

without a finding, entered as a result of an admission to facts

sufficient to warrant a finding of guilt under Massachusetts

law, is counted as a sentence for the purposes of calculating

criminal history points in sentencing. 178 F.3d at 21. Now we

must resolve the issue raised by the second chapter: What effect

does the dismissal of a charge continued without a finding under

Massachusetts law, and the sealing of the records related to

that charge, have upon the calculation of criminal history

points? We conclude that the language of the sentencing

guidelines and related application notes make abundantly clear
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that Dubovsky's sentence has not been expunged for the purposes

of calculating his criminal history points, and that this

conclusion is in accord with Massachusetts law.

The district court identified "three distinct

approaches" in the circuit courts for determining whether a

dismissed conviction should be treated as expunged. Dubovsky,

2001 WL 274730, at *1. It cited the Tenth, Fifth, and D.C.

Circuits as exemplifying the "prevailing view," focusing on

whether "the conviction was set aside because of innocence or

errors of law." Id. (citing United States v. Hines, 133 F.3d

1360 (10th Cir. 1998); United States v. Ashburn, 20 F.3d 1336

(5th Cir. 1994); United States v. McDonald, 991 F.2d 866 (D.C.

Cir. 1993)). It distinguished this view from that of the Second

Circuit, which it described as focusing on whether "all trace of

the prior adjudication" had been eliminated. Id. at *2.

(quoting United States v. Matthews, 205 F.3d 544, 548 (2d Cir.

2000)). Finally, it characterized the Ninth Circuit as taking

the position that "a dismissed or vacated conviction should be

deemed to have been expunged even though the conviction was set

aside for reasons unrelated to innocence or errors of law and

state law does not eliminate all trace of the adjudication."

Id. (citing United States v. Hidalgo, 932 F.2d 805 (9th Cir.

1991)). The district court cited our decision in United States
5 To the extent that a split exists among the circuits, we

thus side with what the district court characterized as the

"prevailing view." There is an argument to be made, however,

that there is in fact no meaningful circuit split. For example,

while the Tenth Circuit, in Hines, did state that "[a]

conviction is 'expunged' for Guideline purposes only if the

basis for the expungement under state law is related to

'constitutional invalidity, innocence, or errors of law,'" it

also looked to the fact that "the Act does not permit the

physical destruction of records." 133 F.3d at 1364-65; see also

Ashburn, 20 F.3d at 1342-44 (analyzing whether statute in

question "eliminate[d] all evidence of the conviction").

Similarly, while the Second Circuit, in Matthews, may have

focused on the fact that the "statute does not eliminate all

trace of the prior adjudication," it described its analysis as

the same as the one in Hines. 205 F.3d at 546, 548; see also

United States v. Reyes, 13 F.3d 638, 641 (2d Cir. 1994)

(concluding that defendant's prior conviction could be included

in calculating his criminal history where he did not argue "that

the motion was granted because of innocence or legal error").

Finally, the Ninth Circuit has recently stated that in

"[a]pplying the commentary's definition of 'expunged

convictions,' we must decide whether the relief . . . is a more

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v. Fosher, 124 F.3d 52 (1st Cir. 1997), for the proposition that

we had "not taken a definitive position on the issue." Id.

Dubovsky urges us to adopt a hybrid of the approaches

attributed to the Second and Ninth Circuits above, such that we

could conclude that expungement exists where records are

"constructively purged" by the Massachusetts statute. However,

we are persuaded that expungement within the meaning of the

Guidelines's structure is best determined by considering whether

the conviction was set aside because of innocence or errors of

law. We are convinced that the explicit language of note ten to

Guideline § 4A1.2(j) specifically so requires.5 See Gonzalez-
limited remedy, afforded 'for reasons unrelated to innocence or

errors of law.'" United States v. Hayden, 255 F.3d 768, 771

(9th Cir. 2001) (quoting U.S. Sentencing Guidelines § 4A1.2(j)

(1998)).

6 Indeed, Dubovsky does not challenge the district court's

finding on this issue, and his failure to argue this point

constitutes a waiver. Ortega Cabrera v. Municipality of

Bayamon, 562 F.2d 91, 102 n.10 (1st Cir. 1977). As we discuss,

his argument instead is that the sealing of his records by

operation of Massachusetts law constitutes an expungement

nonetheless.

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Arimont, 268 F.3d at 15 ("We held in [Fosher], that a set-aside

under the Federal Youth Corrections Act is 'for reasons

unrelated to innocence or errors of law' and therefore not

expungement.") (quoting Fosher, 124 F.3d at 57 (quoting U.S.

Sentencing Guidelines Manual § 4A1.2(j), cmt. n.10 (1998))).

Applying that approach to this case, we conclude that the

district court correctly found that Dubovsky's marijuana charge

was not dismissed, nor were the related records sealed, on

account of innocence or legal errors.6 Under Massachusetts law,

there was no requirement that Dubovsky make a showing of either.

See Mass. Gen. Laws ch. 94C, § 34 (authorizing a court to

dismiss proceedings and seal records of any first-time drug

offender who has complied with conditions of continuance).

Dubovsky cites a portion of the Massachusetts statute

which states that once sealed, a conviction "shall not be deemed

a conviction for [any] purpose." Mass. Gen. Laws ch. 94C, § 34.
7 The Massachusetts Legislature knows the difference between

"sealing" and "expunging," having used both terms in § 34 before

amending that statute to eliminate all reference to "expunged"

records. The view that the Massachusetts Legislature's use of

the term "seal" conveys an intent to accomplish something less

than a total ban on future use of the record is borne out by the

opinions of the Supreme Judicial Court of Massachusetts. See

Commonwealth v. Vickey, 412 N.E.2d 877, 879 (Mass. 1980)

("Despite considerable confusion in applying this terminology,

the Massachusetts Legislature made clear its knowledge of the

distinctions involved by changing the language of G.L. c. 94C,

s 44 from 'expungement' to 'sealing.' . . . Sealed records []

may be made available to . . . 'any court.'") (quoting G.L. c.

276, s. 100A); Police Comm'r v. Mun. Court, 374 N.E.2d 272, 277

(Mass. 1978) ("[T]he distinction between expungement of a record

and sealing of a record is important. . . . The latter term

refers to those steps taken to segregate certain records from

the generality of records and to ensure their confidentiality to

the extent specified in the controlling statute."). As we

stated in Fosher, an intent to benefit an offender "by providing

a second chance" so that he or she can live "without the stigma

of a criminal conviction, . . . [is] not meant to allow a

recidivist to avoid increased penalties based on earlier

criminal convictions." 124 F.3d at 58.

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He argues that for the federal courts to allow the prior

adjudication here to count for the purposes of criminal history

would be contrary to the intent of the Massachusetts

Legislature. However, even if this argument is valid,7 it is

unavailing. The intent of the state legislature is relevant to

show whether the sealing procedure is related to innocence or

legal errors. See Hines, 133 F.3d at 1364 ("A conviction is

'expunged' for Guideline purposes only if the basis for the

expungement under state law is related to 'constitutional

invalidity, innocence, or errors of law.' We must therefore
8 As noted above, examining the basis of the asserted

expungement may also include determining whether the records

were destroyed. See Hines, 133 F.3d at 1365; Fosher, 124 F.3d

at 58. In Dubovsky's case they were not. See Dubovsky, 2001 WL

274730, at *2; Mass. Gen. Laws ch. 94C, § 34.

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examine the basis for the expungement of [the] conviction under

[state] law.") (quoting United States v. Cox, 83 F.3d 336, 339

(10th Cir. 1998)); Fosher, 124 F.3d at 58 (examining

congressional intent).8 But any collateral consequences of

sealing under state law are irrelevant to the application of the

federal Sentencing Guidelines, which have their basis in

congressional, not state policy. See United States v. Gray, 177

F.3d 86, 93 (1st Cir. 1999) ("[States] may not dictate how the

federal government will vindicate its own interests in punishing

those who commit federal crimes."); United States v. Daniels,

929 F.2d 128, 129 (4th Cir. 1991) ("Even if the juvenile

proceedings had been sealed pursuant to state law, that law

could not bar consideration of them by a federal court in

determining a sentence, when federal law provides otherwise.").

Here, we agree with the district court that "[t]he obvious

purpose of this sealing provision is to give a defendant a fresh

start," Dubovsky, 2001 WL 274730, at *2, not to correct errors

of law or vindicate innocence.

III.

For the foregoing reasons, we affirm the sentence of
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the district court.