F I L E D

United States Court of Appeals

Tenth Circuit

JAN 16 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

CURTIS A. HINES, SR.,

Defendant-Appellant. 

No. 96-3134

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 95-CR-10064-WB)

Kurt J. Shernuk, Assistant United States Attorney, Kansas City, Kansas, (Jackie

N. Williams, United States Attorney, Montie R. Deer, Assistant United States

Attorney, with him on the briefs), Wichita, Kansas, for Plaintiff-Appellee.

Cyd Gilman, Assistant Federal Public Defender, Wichita, Kansas, for DefendantAppellant.

Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
1The district court counted Hines’ 1988 battery conviction as a prior felony

conviction for a crime of violence, thus increasing Hines’ base offense level for

the firearms charge from 14 to 20. See U.S.S.G. § 2K2.1(a)(4)(A), (6).

2This opinion cites the statutory provisions of the Arkansas Alternative

Service Act in effect at the time Hines was sentenced for his battery conviction. 

-2-

Appellant Curtis A. Hines pleaded guilty to two counts of unlawful

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), one count of

unlawful uttering and/or possessing a counterfeit security with intent to deceive in

violation of 18 U.S.C. § 513(a), and one count of making a false or fraudulent

claim against the United States Treasury in violation of 18 U.S.C. § 287. Hines

appeals his sentence, claiming that his 1988 battery conviction from Sebastian

County, Arkansas was expunged and thus should not have been counted as a prior

felony conviction increasing the applicable base offense level1 and criminal

history category under the United States Sentencing Guidelines (“U.S.S.G.”). 

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291, and upon de novo

review affirms. See United States v. Carney, 106 F.3d 315, 317 (10th Cir. 1997)

(“We review the district court’s . . . legal application of the sentencing guidelines

de novo.”).

I. BACKGROUND

In 1988, Hines was convicted of battery and sentenced pursuant to § 16-93-

507(b)(4) of Arkansas’ Alternative Service Act. See Ark. Code Ann. § 16-93-

507(b)(4) (Michie 1987) (repealed 1993).2

 Under that Act, Hines was entitled to
The Alternative Service Act was repealed, effective January 1, 1994. See 1993

Ark. Acts 531 and 548. 

-3-

have his conviction “expunged” upon completion of the sentence imposed. See

Ark. Code Ann. § 16-93-510(a) (Michie 1987 & Supp. 1988) (“Upon the

completion of sentence or probation imposed under [the Alternative Service Act],

. . . the director, in the case of a person sentenced under § 16-93-507(b)(4) or (5),

shall direct that the record of the eligible offender be expunged of the offense of

which the eligible offender was convicted . . . .” (emphasis added)) (repealed

1993). Hines was incarcerated for a period of approximately three months and

was on parole for an additional period of approximately twenty months. After

completing the sentence imposed for his battery conviction, Hines was thus

statutorily entitled to have his conviction expunged and the Arkansas Post Prison

Transfer Board accordingly issued an Order to Seal his record on December 8,

1995.

Hines appeals the sentence he received for his current offenses, claiming

that the district court erroneously counted his sealed 1988 conviction as a prior

felony conviction under the Sentencing Guidelines. U.S.S.G. § 4A1.2(j) provides

that “expunged convictions” are not counted in computing a defendant’s criminal

history category. Relying on § 4A1.2(j), the Presentence Investigation Report

(“PSR”) concluded that the 1988 conviction should not be counted for purposes of
-4-

calculating Hines’ base offense level and criminal history category because the

Order to Seal was evidence that Hines’ prior conviction was “expunged” under

Arkansas law. After the prosecution objected to this recommendation, the United

States Probation Office reiterated and explained its conclusions in an Addendum

to the PSR: 

Arkansas statute treats offenses which have received an “Order to

Seal” as if the defendant was completely exonerated and the offense

never occurred. The defendant provided a copy of a document

entitled “Order to Seal” which referenced his 1988 battery

conviction. Contact was made with the Sebastian County Superior

Court Clerk’s Office which verified the validity of the document. In

addition, it was verified that the clerk’s office is treating the case as

an expungement. This officer was referred to the Sebastian County

Court Administrator, Denora Coomer, regarding the legal effect of an

Order to Seal. Ms. Coomer confirmed that an Order to Seal is what

results from an expunged criminal conviction. Further verification of

Ms. Coomer’s statements were found in Arkansas statute 16-93-

502(7)(A). [See Ark. Code Ann. § 16-93-502(7)(A) (Michie 1987)

(defining “expunge”) (repealed 1993).] At the time the defendant

applied to have his conviction expunged, it appears he was eligible to

receive such consideration. Since the guidelines specifically exclude

expunged convictions from criminal history computation, it is the

opinion of the U.S. Probation Office that the base offense level

attributed to the defendant [in the PSR] is correct.

The district court rejected the Presentence Investigation Report’s

conclusions and counted the 1988 conviction. It determined the Order to Seal was

granted to restore civil rights or remove stigma rather than for reasons of

innocence or legal error. The court then concluded that, under Application Note

10 to U.S.S.G. § 4A1.2, the Order to Seal did not constitute an “expungement” as
3Hines’ base offense level for the firearms charge was calculated under

U.S.S.G. § 2K2.1(a), which provides for a higher base offense level when the

defendant has a prior felony conviction for a crime of violence. See U.S.S.G.

§ 2K2.1(a)(4)(A). In defining what constitutes a prior conviction for the purposes

of § 2K2.1(a)(4)(A), the commentary to the Sentencing Guidelines instructs the

sentencing court to consider any prior conviction which “receives any points

under § 4A1.1 (Criminal History Category).” U.S.S.G. § 2K2.1 Application

Note 5. Hines argues that because his prior battery conviction should not have

been included in calculating the applicable criminal history category under

§ 4A1.1, it cannot be used in determining the appropriate base offense level under

§ 2K2.1(a). Hines’ argument that his base offense level was improperly

calculated, therefore, rests entirely on whether it was permissible for the

sentencing court to consider his prior conviction in determining his criminal

history category.

-5-

that term is used in § 4A1.2(j). The sole issue on appeal is whether Hines’ 1988

conviction was “expunged” within the meaning of § 4A1.2(j).3

II. ANALYSIS

Section 4A1.2(j) of the Sentencing Guidelines provides that “[s]entences

for expunged convictions are not counted” in computing a defendant’s criminal

history category. U.S.S.G. § 4A1.2(j). The Sentencing Guidelines do not define

the term “expunged.” Application Note 10 to § 4A1.2(j), however, provides:

Convictions Set Aside or Defendant Pardoned. A number of

jurisdictions have various procedures pursuant to which previous

convictions may be set aside or the defendant may be pardoned for

reasons unrelated to innocence or errors of law, e.g., in order to

restore civil rights or to remove the stigma associated with a criminal

conviction. Sentences resulting from such convictions are to be

counted. However, expunged convictions are not counted. 

§ 4A1.2(j).

U.S.S.G. § 4A1.2(j) Application Note 10.
-6-

Hines argues that because his prior battery conviction was “expunged”

pursuant to Arkansas law, it may not be counted under the plain language of

§ 4A1.2(j) in calculating his criminal history category. He contends that it is

inappropriate for this court to consider the basis for his expungement under

Arkansas law because that portion of Application Note 10 requiring the sentence

be set aside for reasons of innocence or an error of law does not apply to

convictions which have been “expunged” under state law. He argues the

Sentencing Guidelines distinguish convictions which have been “expunged” from

those which have been “set aside” or “pardoned” under state law. He concludes

that Application Note 10 merely recognizes this distinction by permitting

consideration of “set aside” convictions for purposes of calculating a defendant’s

criminal history category but restating the prohibition against counting

“expunged” convictions.

Hines’ arguments are unpersuasive. In determining whether a conviction is

expunged for purposes of the Sentencing Guidelines, Application Note 10

requires sentencing courts to analyze the true basis for expungement under state

law rather than relying on the varied nomenclature among jurisdictions. This

approach is supported by both Tenth Circuit case law and the purpose of the

Sentencing Guidelines.
-7-

In United States v. Cox, 83 F.3d 336 (10th Cir. 1996), this court considered

a defendant’s argument that he should be resentenced after he successfully

attacked several prior convictions which had been used to enhance his federal

sentence. The defendant contended that these prior convictions, which were

dismissed or expunged under state law, should not be used in recalculating his

sentence under the Guidelines. See id. at 339. In determining that the

defendant’s sentence should be reopened and recalculated by the district court, the

Cox court held that under U.S.S.G. § 4A1.2(j) and Application Note 10, a

sentencing court “must determine the basis for the expungement or dismissal of

the prior offenses” when deciding whether prior convictions should be included in

calculating a defendant’s criminal history category. Id. at 339 (emphasis added). 

The court stated:

Convictions reversed or vacated for reasons related to constitutional

invalidity, innocence, or errors of law are expunged for purposes of

the Guidelines and therefore cannot be included in criminal history

calculations. . . . When convictions are set aside for reasons other

than innocence or errors of law, such as to restore civil rights or

remove the stigma of a criminal conviction, those convictions are

counted for criminal history purposes.

Id. at 339-40 (emphasis added); see also United States v. McDonald, 991 F.2d

866, 871 (D.C. Cir. 1993) (“[Application Note 10] explains that convictions

excluded from the criminal history calculation are those in which the defendant
-8-

was subsequently found innocent or which involved legal error. These

convictions are classified as ‘expunged.’”).

The defendant in Cox was appealing the district court’s denial of his motion

to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See

Cox, 83 F.3d at 338. The defendant argued that because he successfully attacked

four prior convictions which had been used in calculating his criminal history

category, he should be resentenced without counting those prior convictions. See

id. at 339. In support of his claim, the defendant provided evidence that two of

his prior convictions were “expunged,” one was “dismissed with prejudice,” and

the final one was “dismissed, sealed and expunged.” See id. This court reversed

the district court’s denial of § 2255 relief and ordered that the defendant’s

sentence be reopened but did not rule on whether the expunged convictions could

be counted. See id. at 339-40 & n.3. While the court could have held as a matter

of law that convictions “expunged” under state law are “expunged” for

Sentencing Guideline purposes, it declined to do so. Instead, the court remanded

the case to the district court in part for a determination of the underlying “basis”

for the expungements and dismissals. See id. at 339. In remanding, the court

thereby suggested what this court holds today: that a state’s use of the term

“expunge” is not controlling in determining whether a conviction is properly

included in calculating a defendant’s criminal history category. Instead,
4Hines’ reliance on this court’s decision in United States v. Wacker, 72 F.2d

1453 (10th Cir. 1996), for the proposition that a conviction “expunged” under

state law is necessarily “expunged” for purposes of U.S.S.G. § 4A1.2(j) is

misplaced. In Wacker, the court held that a prior conviction “set aside” under the

Federal Youth Corrections Act (“FYCA”) was properly included in calculating the

defendant’s criminal history category. See id. at 1479-80. In determining

whether the prior conviction should be considered under the Sentencing

Guidelines, the court examined the purpose of the FYCA’s provision allowing

sentences of youthful offenders to be set aside. See id. at 1479. The court noted

that an offender’s conviction is “set aside” under the FYCA to give the offender a

“new start,” a reason unrelated to innocence or errors of law, and the court

therefore concluded that a conviction set aside under the FYCA is not expunged

for purposes of U.S.S.G. § 4A1.2(j). See id. (citation omitted). Wacker thus did

not consider whether a conviction “expunged” under state law is also “expunged”

for purposes of the Sentencing Guidelines. The court’s analysis in Wacker does,

however, support our holding that courts must consider the reason a prior

conviction has been pardoned, set aside, or expunged in determining whether the

conviction may be used in calculating a defendant’s criminal history category.

Hines’ reliance on United States v. Johnson, 941 F.2d 1102 (10th Cir.

1991), is also inappropriate. Johnson did not address the issue before this court: 

whether the use of the term “expunge” in a state statute is controlling for

purposes of the Sentencing Guidelines. The parties in Johnson assumed

expungement under the Oklahoma statute would prohibit consideration of the

prior sentence in calculating the defendant’s criminal history category. The sole

issue in Johnson was whether expungement under Oklahoma’s deferred

sentencing law was automatic upon completion of probation or required an

affirmative action by the defendant to have his record expunged. See id. at 1110-

13. The court did not have before it a consideration of the purpose behind

Oklahoma’s expungement statute under Application Note 10 to U.S.S.G.

§ 4A1.2(j). See id. 

-9-

sentencing courts are to examine the grounds upon which a defendant was

pardoned or his sentence was set aside or expunged.4

Our holding today is consistent with the policies underlying the Sentencing

Guidelines. The Guidelines were enacted to promote uniformity in sentencing for
-10-

federal crimes. See United States v. Diaz-Bonilla, 65 F.3d 875, 877 (10th Cir.

1995); see also U.S.S.G. Ch. 1 Pt. A (stating that in the Sentencing Reform Act of

1984, “Congress sought reasonable uniformity in sentencing by narrowing the

wide disparity in sentences imposed for similar criminal offenses committed by

similar offenders”). Hines’ arguments disregard the goal of uniformity by

allowing state nomenclature to control whether a sentence is expunged for

purposes of the Sentencing Guidelines. This court, however, has explicitly

refused to allow state law terminology to control Sentencing Guideline issues. 

See Diaz-Bonilla, 65 F.3d at 877; United States v. Brunson, 907 F.2d 117, 121

(10th Cir. 1990).

In Diaz-Bonilla, the defendant argued that his prior conviction could not be

classified as a “felony offense” for purposes of the Sentencing Guidelines because

under Colorado law the offense was defined as a “misdemeanor.” See 65 F.3d at

876-77. This court rejected the defendant’s argument, holding instead that the

term “felony offense” must be defined with reference to federal law. See id. at

877. The court reasoned that “[t]he purpose of the Guidelines would be frustrated

by an interpretation that gave effect to a state statutory definition, because its

application is nationwide and the federal program’s objective of uniformity would

be impaired.” Id.
-11-

Similarly, in Brunson the defendant contended that state law should

determine whether a prior state felony conviction is classified as a “crime of

violence” for purposes of the Sentencing Guidelines. See Brunson, 907 F.2d at

120-21. In rejecting the defendant’s argument that state law should control, this

court stated:

Were we to [rely on state law], the uniformity in sentencing the

Guidelines was intended to ensure would be jeopardized. Criminals

with similar records might receive vastly different sentences simply

because their past crimes were defined differently by different states. 

We believe that uniformity in sentencing may best be achieved by

applying the Guidelines without strict reference to state criminal law

definitions.

 

Id. at 121.

The rationale for the court’s decision in Brunson is equally applicable to

the current case. Were we to find state terminology controlling in determining

whether a sentence is expunged under the Guidelines, the goal of uniformity

would be severely jeopardized. This court therefore holds that to determine

whether a conviction is “expunged” for purposes of the Sentencing Guidelines,

the district court must examine the “basis” for the expungement. See Cox, 83

F.3d at 339. A conviction is “expunged” for Guideline purposes only if the basis

for the expungement under state law is related to “constitutional invalidity,

innocence, or errors of law.” Id. We must therefore examine the basis for the

expungement of Hines’ conviction under Arkansas law.
-12-

Reviewing substantive Arkansas law, the sentencing court concluded that

the sealing of Hines’ 1988 battery conviction was “clearly not an expungement

based upon innocence or legal error, but was for the purpose of removing the

stigma of a criminal conviction and restoring the defendant’s civil rights” and

therefore the conviction should be counted in determining Hines’ criminal history

category. An analysis of Arkansas’ Alternative Service Act and its interpretation

by the Arkansas Supreme Court verifies the sentencing court’s conclusion.

Under the Arkansas Act, Hines was entitled to have his 1988 battery

conviction “expunged” “[u]pon the completion of [his] sentence.” Ark. Code

Ann. § 16-93-510(a) (Michie 1987 & Supp. 1988) (repealed 1993). There was no

requirement that Hines make a showing of innocence or legal error to be granted

expungement under Arkansas law. Rather, the Act provided for expungement

regardless of the validity of Hines’ conviction.

“Expunge” is defined by Arkansas’ Alternative Service Act as follows:

(A) “Expunge” means to make an entry upon the official

records kept in the regular course of business by law enforcement

agencies and judicial officials evidencing the fact that the records are

those relating to eligible offenders as so determined and sentenced or

paroled under the provisions of this subchapter; that the records shall

be sealed, sequestered, treated as confidential and only available to

law enforcement and judicial officials; and further signifying that the

defendant was completely exonerated of any criminal purpose and

that the disposition shall not affect any civil rights or liberties of the

defendant.
5

In 1995, the Arkansas legislature adopted new provisions defining

expungement and addressing the procedure for sealing criminal records. See Ark.

Code Ann. §§ 16-90-901 to 905. Although Hines cites both Arkansas’ Alternative

Service Act and these newer statutory provisions in defining expungement and its

effects under Arkansas law, he does not make an issue of which provisions are

applicable, nor does either party suggest that the differences between these

statutes affect the analysis of this case. Because the Order to Seal Hines’ 1988

battery conviction was based on his completion of the sentence imposed under

Arkansas’ Alternative Service Act, we limit our analysis to expungement under

the Alternative Service Act.

-13-

(B) “Expunge” shall not mean the physical destruction of any

official records of law enforcement agencies or judicial officials.

Ark. Code Ann. § 16-93-502(7)(A)-(B) (Michie 1987) (repealed 1993) (emphasis

added).5 While this definition provides the defendant is “completely exonerated

of any criminal purpose,” it also places important limitations on the scope of

expungement under the Act. First, the Act explicitly allows judicial officials to

access records that are otherwise sealed under the statute. The Act thus carves

out an exception for courts to the rule of confidentiality. Second, the Act does

not permit the physical destruction of records relating to expunged convictions

and thus assures continued access to the records by courts. Finally, this definition

suggests that the “basis” for expungement under Arkansas’ Alternative Service

Act is to restore the “civil rights or liberties of the defendant.”

Section 16-93-510(c) of the Act further provides:

Upon the expungement of the record, as to that conviction, the

person whose record was expunged may thereafter state in any
-14-

application for employment, license, civil right, or privilege, or in

any appearance as a witness, that he has not been convicted of the

offense for which he was convicted and sentenced or placed on

probation under the provisions of [the Alternative Service Act].

Ark. Code Ann. § 16-93-510(c) (Michie 1987 & Supp. 1988). This provision

indicates the primary purpose for expungement under the Act is to restore a

defendant’s civil rights and remove any stigma attached to the conviction. 

Notably absent from this listing of the effects of expungement is any limitation of

a court’s use of the expunged conviction for future sentencing purposes.

The Act therefore not only permits expungement without a showing of

innocence or legal error, it indicates that expungement is for reasons other than

innocence or legal error and further indicates the effect of expungement is merely

the restoration of an individual’s civil rights. Significantly, there is no provision

which limits the use of expunged convictions in sentencing a defendant. The

meaning of “expunge” under Arkansas’ Alternative Service Act is thus quite

different from the meaning of “expunge” in U.S.S.G. § 4A1.2(j) and Application

Note 10. 

If there remained any doubt of the limited meaning, purposes, and

consequences of expungement under the Act, the Arkansas Supreme Court laid

such doubts to rest in Gosnell v. State, 681 S.W.2d 385 (Ark. 1984). In Gosnell,

the court addressed a state law issue similar to that presented in the instant case: 
6While the Alternative Service Act has undergone several amendments

since its adoption in 1975, the changes are not significant for purposes of this

case. Accordingly, the provisions of the Act considered by the Gosnell court

differ from those of the Act before us only in ways insignificant to our decision.

-15-

whether a conviction expunged under the then-applicable Alternative Service Act6

could be used to enhance a sentence under Arkansas’ habitual offender laws. See

id. at 386. The divided Arkansas court answered in the affirmative, concluding

that expungement under the Act does not exempt the offender from responsibility

for that crime under habitual criminal laws upon the conviction of a subsequent

crime. See id. at 386-87 (“[The statute] does not state that [a defendant] is free

to commit more felonies without accountability as an habitual criminal.”). The

court’s reasoning is important: the express and limited statutory consequences of

expungement exclude other claimed consequences, such as prohibiting

consideration of the prior conviction under habitual offender criminal laws. See

id. at 387. 

The Gosnell court concluded that the Alternative Service Act expressly

restores an individual’s civil rights and allows the individual to “state in any

application for employment, license, civil right or privilege or in any appearance

as a witness that he has not been convicted of the offense,” but it does not limit
7Relying on Gosnell, the Seventh Circuit, in an unpublished order,

determined that the term “expunged” as used in Arkansas’ Alternative Service Act

does not constitute an “expungement” for purposes of U.S.S.G. § 4A1.2(j). See

United States v. Streete, 1995 WL 283954 (7th Cir. May 11, 1995).

8

 A number of circuits have used analogous reasoning to hold that

convictions set aside pursuant to statutes designed to give young offenders a

second chance may be counted in calculating a defendant’s criminal history

category under the Sentencing Guidelines. See Wacker, 72 F.3d at 1479 (holding

conviction set aside under FYCA to give youthful offender new start could be

counted when offender turns into a recidivist); United States v. Fosher, 124 F.3d

52, 58 (1st Cir. 1997) (“Although the FYCA was intended to benefit a youthful

offender by providing a second chance to start life without the stigma of a

criminal conviction, . . . it was not meant to allow a recidivist to avoid increased

penalties based on earlier criminal convictions.”); Gass v. United States, 109 F.3d

677, 679-80 (11th Cir. 1997) (similarly holding second chance granted by FYCA

should not shield recidivists from increased penalties); United States v. Nicolace,

90 F.3d 255, 258 (8th Cir. 1996) (same); United States v. Ashburn, 20 F.3d 1336,

1343 (5th Cir.) (same), reinstated in relevant part on reh’g en banc, 38 F.3d 803

(5th Cir. 1994); United States v. McDonald, 991 F.2d 866, 871-73 (D.C. Cir.

1993) (holding conviction set aside pursuant to Youth Rehabilitation Act, which

encourages rehabilitation of juvenile offenders, could be counted in determining

defendant’s criminal history). But see United States v. Beaulieau, 959 F.2d 375,

-16-

the defendant’s accountability as an habitual offender.7 Id. In so holding, the

court noted:

Every benefit extended by this statute is of the type to encourage the

offender’s progress toward rehabilitation. That is, a reformed

convict should be encouraged to apply for a job, to assert his civil

rights, as by registering to vote or running for office, and to

discharge a good citizen’s duty to appear as a witness without fear of

unnecessary embarrassment. But there is no reason either to

encourage him to commit another crime or to believe that the

legislature intended to do so. The trial judge was right in refusing to

read into the statute a provision that is simply not there and that

would actually be contrary to the over-all legislative intent.

Id.8
380-81 (2d Cir. 1992) (holding conviction sealed under Vermont juvenile statute

was expunged for purposes of the Guidelines); United States v. Kammerdiener,

945 F.2d 300, 301 (9th Cir. 1991) (holding conviction expunged under FYCA

could not be counted in determining defendant’s criminal history). 

-17-

Based on our consideration of Arkansas’ Alternative Service Act and

Arkansas case law interpreting the Act, we conclude that Hines’ conviction 

was not expunged for reasons related to constitutional invalidity, innocence, or

errors of law. Rather, the record of his 1988 conviction was sealed to the public

upon his fulfillment of the sentence imposed for that crime in order to restore his

civil rights and give him a new start in the workplace and as a citizen. Cf.

McDonald, 991 F.2d at 871-72 (holding procedure failed to qualify as

expungement under § 4A1.2(j) because it was based on social policy goal, not

innocence or legal error). The sealing of Hines’ record under Arkansas law thus

did not constitute “expungement” for purposes of U.S.S.G. § 4A1.2(j) and his

prior conviction should therefore be counted in calculating his criminal history

category and base offense level. Hines was entitled to and did receive the limited

benefits of expungement under Arkansas’ Alternative Service Act, i.e., the

restoration of his civil rights and an opportunity to begin anew as a law abiding

citizen. Once he strayed from the path of a good citizen and returned to criminal

ways, the benefits of expungement did not suddenly expand to limit accountability

for his criminal past.
-18-

We AFFIRM the judgment of the United States District Court for the

District of Kansas.