Tooby's California Post-Conviction Relief for Immigrants

A prior drug diversion disposition, which did not involve a plea of guilty or no contest, disqualifies the defendant from FFOA treatment of the conviction.[24]  This is an illogical conclusion, because such a no-plea, no-conviction disposition is not equivalent to “a disposition under this subsection [18 U.S.C. § 3607(a)],” since the defendant in such a diversion case has not been “found guilty” of a controlled-substance offense and no conviction resulted.[25]  Such a scenario would not disqualify a federal defendant from FFOA treatment. It is possible the Ninth Circuit might reconsider this rule en banc, and it should do so.

[24] Melendez v. Gonzales, 503 1019 (9th Cir. Sept. 19, 2007) (an expungement of a second offense will not be effective in eliminating a conviction, under Lujan, for immigration purposes were the noncitizen has already previously been given “pretrial diversion” treatment on a prior offense, even though “pre-trial diversion” did not require the noncitizen to enter a plea of guilty to a controlled substances offense).

[25] 18 U.S.C. § 3607(a).