United States Court of Appeals,

Eleventh Circuit.

No. 96-4459

Non-Argument Calendar.

Steven Gregory GASS, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

April 7, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (Nos. 95-6612-Civ-JAG, 91--6004-Cr-JAG), Jose

A. Gonzalez, Jr., District Judge.

Before BIRCH and CARNES, Circuit Judges, and FAY, Senior Circuit

Judge.

PER CURIAM:

In this appeal, we will decide the following question:

whether a district court may rely on a defendant's prior conviction

and sentence, which has been set aside under the Federal Youth

Corrections Act, 18 U.S.C. § 5021 (1976) (repealed 1984) ("FYCA"),

to increase a defendant's criminal history score. We answer this

question in the affirmative.

Appellant Steven Gregory Gass ("Gass"), pled guilty to eight

counts of bank robbery in violation of 18 U.S.C. § 2113(a). Based

upon two prior bank robbery convictions and their corresponding

three criminal history points, Gass' presentence report assigned

him a criminal history category of two. At Gass' sentencing,

neither Gass nor his counsel objected to a criminal history

category of two. In accordance with the recommended criminal

history category of two and the relevant offense level, Gass fell

within a sentencing range of seventy-eight to ninety-seven months.
The district court sentenced Gass to ninety-seven months.

Gass did not appeal his sentence, but did file a pro se motion

to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §

2255 (1994). In the motion, Gass contends that he should not have

been assessed three criminal history points for the prior bank

robbery convictions because the FYCA set aside and "expunged" those

convictions. Without the three criminal history points, Gass

criminal history category would have been one, resulting in a

lesser sentence.

In the government's response to Gass' motion, the government

raised two reasons why Gass' motion should be denied. First, the

government argues that Gass is procedurally barred from raising the

FYCA claim because he failed to raise the claim at sentencing or on

direct appeal. Second, Gass' FYCA argument is without merit

because the prior bank robbery convictions had not been expunged,

but only set aside.

In an "amended" § 2255 motion, Gass, again pro se, added an

ineffective assistance of counsel claim to his FYCA claim. Gass

contends that his counsel was ineffective in failing to object to

the Court's consideration of his prior convictions in calculating

his criminal history category. According to Gass, he informed his

counsel several times of the FYCA and its effect on his criminal

history level, but Gass' counsel refused to raise the issue.

The Magistrate Judge, relying on United States v. Ashburn, 20

F.3d 1336, 1343 (5th Cir.), portion of opinion reinstated on

rehearing en banc, 38 F.3d 803, 807 n. 11 (5th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995)
 1

Gass also argues that the district court erred in not

conducting an evidentiary hearing. However, because Gass' FYCA

claim is "insufficient to establish a claim for relief under

section 2255, the district court did not err in denying [his]

motion without a hearing." Cross v. United States, 893 F.2d

1287, 1292 (11th Cir.), cert. denied, 498 U.S. 849, 111 S.Ct.

138, 112 L.Ed.2d 105 (1990). 

(convictions set aside under FYCA can be considered in computing

criminal history points), issued a Report and Recommendation

recommending that Gass' motion be denied. Gass timely filed

objections to the Magistrate Judge's Report and Recommendation.

The district court overruled Gass' objections, adopted the

Magistrate Judge's Report and denied Gass' § 2255 motion. Gass

timely appealed the district court's denial.

On appeal, both Gass and the government reiterate the

arguments advanced before the Magistrate Judge and the district

court.1

 In either the government's position that Gass is

procedurally barred from asserting his FYCA claim or Gass'

ineffective assistance of counsel argument, this Court must

consider whether Gass suffered any prejudice from failing to raise

the FYCA issue before the district court. United States v. Frady,

456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816

(1982) (in collateral relief case defendant must show actual

prejudice); Thompson v. Wainwright, 784 F.2d 1103, 1105 (11th

Cir.1986) (ineffective assistance of counsel case requiring

prejudice). A finding that Gass' FYCA argument is legally without

merit, would demonstrate that Gass did not suffer any prejudice and

that the district court was legally correct in denying Gass'

motion. In addition, because the issue is one of first impression

in this Circuit, we believe it warrants discussion.
The issue is whether a district court may rely on a

defendant's prior sentence and conviction, which has been set aside

under the FYCA, to increase a defendant's criminal history score.

Section 5021 of the FYCA states:

(a) Upon the unconditional discharge by the Commission of a

committed youth offender before the expiration of the maximum

sentence imposed upon him, the conviction shall be

automatically set aside and the Commission shall issue to the

youth offender a certificate to that effect.

18 U.S.C. § 5021(a) (1976) (repealed 1984) (emphasis added). Gass

citing U.S.S.G. § 4A1.2(j), which provides in part that

"[s]entences for expunged convictions are not counted," argues that

his prior set aside bank robbery convictions cannot be counted in

computing his criminal history score. Thus, central to our inquiry

is "whether the "set aside' language in the [F]YCA means that the

conviction is "expunged' as that term is defined in U.S.S.G. §

4A1.2(j)." United States v. Ashburn, 20 F.3d 1336, 1342 (5th

Cir.), portion of opinion reinstated on rehearing en banc, 38 F.3d

803, 807 n. 11 (5th Cir.1994) (emphasis added). In other words,

did Congress intend by utilizing the words "set aside" in § 5021(a)

of the FYCA, to have conviction records expunged under U.S.S.G. §

4A1.2(j).

In United States v. Doe, 747 F.2d 1358 (11th Cir.1984) we

addressed this very inquiry. In Doe, we held that under § 5021(a)

of the FYCA, a defendant is not entitled to have his conviction

record expunged or destroyed. Id. at 1359-40. We agree with this

statement and reaffirm our holding in Doe. Gass is not entitled to

have his prior bank robbery convictions which were set aside under

the FYCA, expunged. Section 5021's "set aside" is not synonymous
with § 4A1.2(j)'s "expungement". We note that other circuits

courts have similarly construed § 5021 and its relationship to the

sentencing statute. United States v. Nicolace, 90 F.3d 255, 258

(8th Cir.1996); United States v. Cox, 83 F.3d 336, 340 (10th

Cir.1996); United States v. Cerverizzo, 74 F.3d 629, 631 (5th

Cir.1996); United States v. Doe, 556 F.2d 391, 393 (6th Cir.1977);

but see United States v. Doe, 980 F.2d 876, 878 (3d Cir.1992);

United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991).

In accordance with this Court's decision in United States v.

Doe, 747 F.2d 1358 (11th Cir.1984), we hold that a district court

may rely on a defendant's prior sentence and conviction, which has

been set aside under the FYCA, to increase a defendant's criminal

history score. As the Fifth Circuit stated in Ashburn:

The [F]YCA was designed to give the young defendant a new

lease on life. Congress determined that a spontaneous,

youthful transgression should not inhibit a person's evolution

into productive citizenship. However, this beneficient offer

of a "second chance" to the immature offender should not be

available as a shield for those whose original encounter with

the criminal world is used as a springboard to a life of

felonious conduct.

Ashburn, 20 F.3d at 1343. The district court's denial of Gass'

motion is AFFIRMED.