Frazier

MEMORANDUM *

Luke Frazier appeals the 60-month sentence he received after pleading guilty to *852 two drug charges. The district court found that Frazier had two prior state convictions that rendered him ineligible for the “safety valve” provision contained in 18 U.S.C. § 3553 (f); accordingly, although it believed the sentence to be high, the district court sentenced Frazier to the applicable 60-month mandatory minimum term of imprisonment. On appeal, Frazier argues that his prior state convictions are invalid and therefore may not be counted under the Sentencing Guidelines, and thus for safety valve purposes. We review de novo the district court’s decision on that question. United States v. Dominguez, 316 F.3d 1054, 1056 (9th Cir.2003).

In a motion before the Tuscon City Court, Frazier argued, inter alia, that his 2001 conviction was invalid because he had not been advised of the consequences of his plea. The Tuscon City Court “set aside” the 2001 conviction in response to this motion. 1 We hold that the 2001 conviction may not be counted at federal sentencing. Under United States v. Guthrie, 931 F.2d 564 (9th Cir.1991), “[w]hen a state court vacates a defendant’s prior state…