MEMORANDUM Rhonda Caufield was sentenced to one month in prison, one year of supervised release, and a $2,500 fine for possessing 7.4 grams of marijuana in violation of 21 U.S.C. § 844(a).
Section 844(
a) includes a sentence enhancement provision whereby the sentence can be increased from a maximum of one year in prison and a $1,000 fine to a maximum of two years in prison and a $2,500 fine, if the defendant has “a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, [that] has become final.” 21 U.S.C. § 844(a). Caufield’s sentence was enhanced under this provision based on a 1998 Montana state drug offense for which she had received a deferred sentence.
On appeal, Caufield argues that the 1998 offense is not a “conviction ... [that] has become final” within the meaning of § 844(a). The question of whether a deferred or expunged sentence is a final conviction under § 844(
a) is a question of federal law, not state law. United States v. Dickerson, 460 U.S. 103, 119, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). As a matter of federal law, we have previously recognized that a defendant may not enjoy the benefits of an expungement statute until the sentence is actually expunged. United States v. Varela, 993 F.2d 686, 694 (9th Cir.1993). Caufield’s sentence remains a final conviction within the meaning of § 844(a). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.