United States v. Mark Allen Varela

We are called upon to decide, among other things, whether a conviction that is expunge-able under state law but that has never been formally expunged from the defendant’s record can be a predicate offense under the federal felon in possession of a handgun statute, and whether that conviction may be considered in setting the criminal offense level under the Sentencing Guidelines.

I

During the seven months between October 1990 and April 1991, Varela entered into several narcotics transactions with an undercover agent. Varela agreed to sell, and did sell, methamphetamines, cocaine, and marijuana to the agent. Varela also sold the agent semi-automatic firearms.

Varela advised the agent that he had several suppliers for the drugs. The agent met three of them: “Victor,” Pulido, and Hernandez. Pulido and Hernandez were arrested along with Varela, and' eventually pleaded guilty to the charges against them.

Varela was charged in two separate indictments with one count of conspiracy with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 , 841(a)(1); three counts of possession with intent to distribute cocaine, two counts of distributing cocaine, and three counts of…