FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-10192 Plaintiff-Appellee,

D.C. No.

v.  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
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 statute, 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 previously 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 proposed to use the tape recording as evidence that Valerio sold

a gun to someone who told him that he was a felon. That

3368 UNITED STATES v. VALERIO
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 officer 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 responding 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 “sat1New 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 committed for diagnostic purposes within the twelve-month period directly

preceding that conviction, to the department of corrections for an indeterminate 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.”). 

UNITED STATES v. VALERIO 3369
isfactory discharge from probation” in an “order of dismissal.” The order “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.” 

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 preserving his objections on these issues.

Analysis

I. The felon in possession case. 

This section deals only with the felon in possession conviction, 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 interpretation 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 “expunged” 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). 

3370 UNITED STATES v. VALERIO
civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport, possess, 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 possession statute, the federal statute requires the court to proceed along this path: 

1. Use state law to determine whether the defendant 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 pardoned, 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). 

UNITED STATES v. VALERIO 3371
accordance with the law of the jurisdiction . . . .”; (2) “conviction 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 jurisdictions 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 dismissal of criminal charges under the deferred sentence 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). 

5Padilla v. State, 568 P.2d 190 (N.M. 1970). 

6

Id. at 192 (emphasis added). 

3372 UNITED STATES v. VALERIO
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 criminal proceeding does not amount to any of the kinds of invalidation of a conviction specified by the federal felon in

possession statute. The New Mexico statute says that a defendant 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 Mexico 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 satisfied 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). 

UNITED STATES v. VALERIO 3373
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 possession 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 Mexico 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 possession of eagle feathers.16

[7] Second, and more troubling, an opinion of the New

Mexico Attorney General said that persons in Valerio’s situation 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

10State v. Brothers, 59 P.3d 1268, 1271 (N.M. App. 2002). 

11Padilla v. State, 568 P.2d 190, 192 (N.M. 1970). 

12We see no reason to doubt that the Supreme Court of New Mexico

would reach the same conclusions these intermediate appellate court decisions 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).

13New Mexico Statute § 30-7-16 (1978); State v. Lopez, 993 P.2d 767,

770 (N.M. App. 1999). 

14Id. at 769. 

15United States v. Nix, ___ F.3d ___, 2006 WL 301891 (11th Cir. Feb.

9, 2006). 

1616 U.S.C. § 668(a). 

3374 UNITED STATES v. VALERIO
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 ‘conviction’ for purposes of 18 U.S.C. § 922.”

17 The opinion cannot 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 completion 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 purposes 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” operates. 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 sufficient 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

17Id. 

18Id (internal citations omitted). 

19United 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)). 

UNITED STATES v. VALERIO 3375
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 offenders 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,

20United States v. Herron, 45 F.3d 340, 342 (9th Cir. 1995) (quoting

United States v. Dahms, 938 F.2d 131, 133 (9th Cir. 1991)). 

21N.M. Rev. Stat. § 31-13-1. 

22N.M. Stat. § 30-7-16 (1978). 

23Caron v. United States, 524 U.S. 308, 315 (1998) (quoting Dickerson

v. New Banner Inst., Inc., 460 U.S. 103, 120 (1983)). 

24United States v. Andaverde, 64 F.3d 1305 (9th Cir. 1995). 

25United States v. Meeks, 987 F.2d 575 (9th Cir. 1993). 

3376 UNITED STATES v. VALERIO
determining whether the state has restricted his right to possess 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 Distinguishing 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 statute.33 The Fourth Circuit likewise held that there is insufficient restoration of civil rights where the state did not restore

the right to serve on a jury.34

26Id. at 578. 

27United States v. Thomas, 991 F.2d 206 (5th Cir. 1993). 

28Id. at 215. 

29United States v. Dahms, 938 F.2d 131 (9th Cir. 1991). 

30Id. at 133 (following the Sixth Circuit’s rule in United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990)). 

31See 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). 

32United States v. Meeks, 987 F.2d 575, 578 (9th Cir. 1993). 

33Id. 

34United States v. Metzger, 3 F.3d 756, 759 (4th Cir. 1993). 

UNITED STATES v. VALERIO 3377
[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 admonition 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 admis35N.M. Rev. Stat. §§ 31-13-1, 38-5-1. 

36Rule 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.”). 

37See 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). 

38Our review is for abuse of discretion. United States v. Lynch, 367 F.3d

1148, 1159 (9th Cir. 2004). 

39The district court ruled that “the Court will give a cautionary instruction 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.” 

3378 UNITED STATES v. VALERIO
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 considered 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 provided 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 informant taken the stand. Quite possibly that is why the government 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 consistent with precedent from our sister circuits. 

40Fed. R. Evid. § 801(d)(2). 

4118 U.S.C. § 922(d). 

42Id. 

UNITED STATES v. VALERIO 3379
We AFFIRM except that we grant a remand to the district

court for the limited purpose of consideration of the sentencing issues raised by United States v. Ameline.

43

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

3380 UNITED STATES v. VALERIO