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UNITED STATES v. RUIZ

March 30, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
RAMON RUIZ, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 Defendant Ramon Ruiz has pleaded guilty to Count One of a two-count indictment. Count One charges Ruiz with conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. Pending is a dispute between Ruiz and the government concerning proper application of the Sentencing Guidelines.

 On September 5, 1980, defendant pleaded guilty in an Illinois state court to a charge of unlawful use of a weapon. He received a sentence of one year of court supervision, pursuant to Ill. Rev. Stat. ch. 38 para. 1005-6-3.1, which provides in part:

 
(e) At the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, the court shall discharge the defendant and enter a judgment dismissing the charges.
 
(f) Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Two years after the discharge and dismissal under this Section, . . . a person may have his record of arrest expunged as may be provided by law.

 Ruiz represents that he successfully completed the period of supervision, and the Court accepts that representation for purposes of this opinion. Ruiz did not apply to have his record expunged.

 At issue is whether Ruiz' 1980 conviction should receive one criminal history point for this conviction, as the government contends, or should not be counted at all, as Ruiz contends. The applicable provisions in the Guidelines are §§ 4A1.1 and 4A1.2. Section 4A1.1(c) provides for the addition of one criminal history point for "each prior sentence" not otherwise specified as warranting more than one point. Section 4A1.2(a) defines "prior sentence" as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense."

 There are two specific provisions of § 4A1.2 which arguably determine whether a sentence of supervision pursuant to the Illinois statute should be treated as a prior sentence. Section 4A1.2(f) provides:

 
Diversionary Dispositions
 
Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered, except that diversion from juvenile court is not counted.

 Section 4A1.2(j) provides:

 
Expunged Convictions
 
Sentences for expunged convictions are not counted, but may be considered under § 4A1.3 (Adequacy of ...

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