dissenting:

Because I disagree that Hidalgo and Tu-ten 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

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:

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:

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 *303 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.

. Hidalgo was wrongly decided for another reason. It was important to the panel that California courts refer to the California set-aside provision as "expunging" the prior youth conviction. However, the cases it cited do not support the proposition that a conviction set aside under Cal.Welf. & Inst.Code § 1772(a) is expunged for all purposes. Indeed, in People v. Jacob, 174 Cal.App.3d 1166, 1174 , 220 Cal.Rptr. 520, 524 (1985), the California appeals court held that a prior conviction that has been set aside under § 1772(a) could be used to enhance a sentence for a later conviction. The Hidalgo court inexplicably ruled differently from Jacobs on the same question. See also People v. Navarro, 7 Cal.3d 248, 280 , 102 Cal.Rptr. 137, 159 , 497 P.2d 481 (1972) (en banc) (“It is inappropriate to attempt to here define all the penalties and disabilities intended to be released by section 1772 ...,” but a conviction set aside under the section cannot be used to keep a repeat offender out of a narcotic addicts treatment program.)

. After deciding that the juvenile conviction in Tuten had not been set aside under the FYCA, the Court said, "The trial court was therefore free in this case to take petitioner’s previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia’s penal statute.” 460 U.S. at 668 , 103 S.Ct. at 1417 .

. Tuten was also decided before Campbell , and yet we concluded in Campbell , contrary to Hi-dalgo, that a conviction set aside under the *304 FYCA could be considered at sentencing for a later crime. Campbell, 724 F.2d at 813 .