We are faced with the question whether convictions set aside under the Federal Youth Corrections Act, 18 U.S.C. § 5021, repealed Pub.L. No. 473 § 218(a)(8), 98 Stat. 2027 (1984) (FYCA), may be considered in calculating a defendant's criminal history category under the Sentencing Guidelines. Being bound by precedent, we conclude they may not be considered and reverse and remand for resentencing.

* On February 26, 1990, Sammy Kammerdiener pleaded guilty to two counts each of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343. The sentencing court imposed a 27-month prison term with three years of supervised release. Restitution was also ordered.

The only issue here is the calculation of Kammerdiener's criminal history. A three-point increase was assessed in his presentence report for a 1973 mail fraud conviction. The inclusion of this conviction raised his criminal history category from III to IV, increasing his sentencing range from 18-24 months to 24-30 months.

Kammerdiener timely objected to the presentence report on the grounds that the 1973 conviction was set aside under the FYCA and could not be added to his criminal history calculation. We review de novo the district court's application of the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990).

The FYCA gave courts discretion to set aside youth convictions.1 Kammerdiener argues that such a set aside is tantamount to an expungement of the conviction. Under the Guidelines an expunged conviction may not be included in a defendant's criminal history calculation. United States Sentencing Commission, Guidelines Manual, § 4A1.2(j) (Nov. 1990).2

This court, in United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991), recently addressed whether a set aside was an expungement under section 4A1.2(j). Hidalgo was concerned with the effect of a conviction that was set aside under a California youth offender statute, which was similar to the FYCA.

In concluding that a set aside was an expungement for the purposes of the Guidelines, the Hidalgo court noted that:

The Federal Youth Corrections Act ... contained a provision which "automatic[ally] set aside" a conviction if the offender was unconditionally discharged prior to the expiration of his or her sentence. In Tuten v. United States, 460 U.S. 660, 103 S. Ct. 1412, 75 L. Ed. 2d 359 (1983), the Supreme Court sets out the purposes and legislative history of 18 U.S.C. § 5021 in a series of footnotes. Tuten, 460 U.S. at 664-65, notes 6-9, 103 S. Ct. at 1415, notes 6-9. The Court clearly understood the term "set aside" to mean "expunged" for purposes of the Act.

Id. at 807. This interpretation of Tuten was a key part of the court's reasoning and enabled it to conclude that a set-aside conviction could not be counted under section 4A1.2(j).

Being bound by the Hidalgo court's conclusion that a set aside is equivalent to an expungement for sentencing purposes, we hold that Kammerdiener's prior conviction, set aside under the FYCA, may not be included in his criminal history calculation.

REVERSED and REMANDED for resentencing.

Because I disagree that Hidalgo and Tuten dictate the result in this case, and because I believe policy considerations favor the opposite result, I dissent.

In a pre-guidelines case, we acknowledged that the FYCA set-aside did not mean that the conviction was expunged for all purposes. United States v. Campbell, 724 F.2d 812, 812 (9th Cir.1984). We pointed out that the set-aside does not affect the nonpublic record retained by the Department of Justice, and that an exhaustive review of the legislative history showed

that Congress' clear intent was to prevent public dissemination, and particularly dissemination to prospective employers, of an FYCA conviction. [cite] Nothing in that section suggests that the record may not be retained for later use by another court.

Id. We held in Campbell that a conviction set aside under the FYCA could be considered by a later sentencing court.

The sentencing guidelines commentary express the Sentencing Commission's intent that cases such as Campbell remain good law under the guidelines. Application note 10 to § 4A1.2 instructs a sentencing court as follows:

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. § 4A1.2(j).

The note is consistent with the policy considerations behind set-aside provisions for young offenders. The Supreme Court articulated some of these policy concerns in Tuten v. United States:

Like various state expungement statutes § 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany a criminal conviction.

460 U.S. 660, 665, 103 S. Ct. 1412, 1415, 75 L. Ed. 2d 359 (1983). The idea is that if young offenders will turn from crime and become law-abiding citizens, they should not be saddled their entire lives with mistakes they made in their immaturity. For example, they should enjoy the right to vote, hold public office, serve on juries, and practice the occupation of their choice free from the stigma of criminal conviction. See id. at 664, 103 S.Ct. at 1415. However, if the young offender continues to break the law, he or she should not reap the benefits of a clean slate that is intended "to promote the rehabilitation of youth offenders." Id. Rather, the set-aside should be counted as part of the defendant's criminal history as the guidelines commentary directs.

A recent en banc opinion in our circuit holds that the guidelines commentary "is entitled to considerable weight, more so than ordinary legislative history, in interpreting the guidelines." United States v. Anderson, 942 F.2d 606, 612 at 10375 (9th Cir. Aug. 6, 1991) (en banc). The opinion further directs that if the guideline and the commentary can be construed consistently, the commentary should not be ignored. Id. at 612.

In United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991), a Ninth Circuit panel, considering the effect of a conviction set aside under California law on guidelines sentencing, suggested that application note 10 "unnecessarily confuses the issue" and "appears to be somewhat internally contradictory." 932 F.2d at 807. However, nothing in U.S.S.G. § 4A1.2 conflicts with the distinction in application note 10 between the use of set-aside and expunged convictions in calculating a defendant's criminal history category. I believe Hidalgo 's brushing aside of the commentary has been overruled by Anderson. Therefore, application note 10 should be followed and the district court should be affirmed.1

The Hidalgo court and the majority in this case suggest that Tuten can be read to mandate reversal. The Supreme Court did obliquely imply in Tuten that a conviction set aside under the FYCA could not be taken into account in imposing a sentence.² However, the Tuten court was addressing the question whether the set-aside was valid in that case. It concluded that it was not valid because the offender had not been unconditionally discharged prior to the expiration of his sentence, as the FYCA requires. 460 U.S. at 668, 103 S.Ct. at 1417. The Court did not squarely address what effect a valid set-aside, as in our case, might have on a later sentence. Further, Tuten was a pre-guidelines case.3 The Court was not applying U.S.S.G. § 4A1.2 or application note 10, as we are called to do in this case.

For these reasons, I dissent.