Davis

MEMORANDUM **

Brian L. Davis appeals his 185-month sentence, imposed following his guilty plea to possession and distribution of a controlled substance, in violation of 21 U.S.C. §§ 841 (a)(1), 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Davis contends that the district court miscalculated his sentence by including in his criminal history score a prior guilty plea conviction for domestic violence, treating it as a diversionary disposition under U.S.S.G. § 4A1.2(f). Because Davis failed to raise this claim below, we review for plain error. United States v. Scrivner, 114 F.3d 964, 966 (9th Cir.1997). We reject this contention because it lacks merit.

The uncontested presentence report reflects that as a result of Davis’ prior guilty plea, he was sentenced to community service, two days in jail with credit for time served, counseling, a fine, and instructions to stay out of trouble for seven months. Sixteen months later, the guilty plea was withdrawn and the case was dismissed. Because nothing in the record establishes that Davis’ conviction was set aside due to innocence or errors of law, or that it was expunged, we cannot say that the district court…