## 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, Wich ita, Kansas, for DefendantAppellant.

Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.1 The district court counted Hines’ 1988 battery conv iction 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).

2 This opinion cites the statutory provisions of the Arkansas Alternative Service Act in effect at the time Hines was sentenc ed for his battery conviction. -2- Appellant Curtis A. Hines pleaded guilty to two cou nts 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 s ecurity with intent to deceive in violation of 18 U.S.C. § 513(a), and one count of m aking a false or fraudulent claim against the United States Treasury in violati on 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 h ave been counted as a prior felony conviction increasing the applicable base of fense level 1 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 applic ation of the sentencing guidelines de novo .”).
I. BACKGROUND In 1988, Hines was convicted of battery and sentenc ed 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 § 16-93- 507(b)(4) (Michie 1987) (repealed 1993). 2 Under that Act, Hines was entitled toThe Alternative Service Act was repealed, effective January 1, 1994. See 1993

Ark. Acts 531 and 548. -3- have his conviction “expunged” upon completion of t he 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 sentenc ed under § 16-93-507(b)(4) or (5), shall direct that the record of the eligible offend er be expunged of the offense of which the eligible offender was convicted . . . .” (emphasis added)) (repealed 1993). Hines was incarcerated for a period of appr oximately three months and was on parole for an additional period of approximately twenty months. After completing the sentence imposed for his battery con viction, Hines was thus statutorily entitled to have his conviction expunge d 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 curr ent offenses, claiming that the district court erroneously counted his sea led 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 comp uting a defendant’s criminal history category. Relying on § 4A1.2(j), the Prese ntence Investigation Report (“PSR”) concluded that the 1988 conviction should n ot 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 convic tion was “expunged” under Arkansas law. After the prosecution objected to th is recommendation, the United States Probation Office reiterated and explained it s conclusions in an Addendum to the PSR: Arkansas statute treats offenses which have receive d an “Order to Seal” as if the defendant was completely exonerated and the offense never occurred. The defendant provided a copy of adocument entitled “Order to Seal” which referenced his 1988 battery conviction. Contact was made with the Sebastian Co unty Superior Court Clerk’s Office which verified the validity of the document. In addition, it was verified that the clerk’s office i s treating the case as an expungement. This officer was referred to the S ebastian County Court Administrator, Denora Coomer, regarding the l egal 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 s pecifically exclude expunged convictions from criminal history computat ion, 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 Investi gation Report’s conclusions and counted the 1988 conviction. It de termined 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 c onstitute an “expungement” as3 Hines’ base offense level for the firearms charge w as calculated under

U.S.S.G. § 2K2.1(a), which provides for a higher ba se 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 p rior conviction for the purposes of § 2K2.1(a)(4)(A), the commentary to the Sentenci ng Guidelines instructs the sentencing court to consider any prior conviction w hich “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 crimina l history category under § 4A1.1, it cannot be used in determining the appro priate base offense level under § 2K2.1(a). Hines’ argument that his base offense level was improperly calculated, therefore, rests entirely on whether itwas permissible for the sentencing court to consider his prior conviction i n 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 § 4 A1.2(j). 3
II. ANALYSIS Section 4A1.2(j) of the Sentencing Guidelines provi des that “[s]entences for expunged convictions are not counted” in comput ing a defendant’s criminal history category. U.S.S.G. § 4A1.2(j). The Senten cing 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 w hich previous convictions may be set aside or the defendant may b e pardoned for reasons unrelated to innocence or errors of law, e. g. , in order to restore civil rights or to remove the stigma associ ated with a criminal conviction. Sentences resulting from such convicti ons are to be counted. However, expunged convictions are not cou nted. § 4A1.2(j). U.S.S.G. § 4A1.2(j) Application Note 10.-6-

Hines argues that because his prior battery convict ion was “expunged” pursuant to Arkansas law, it may not be counted und er the plain language of § 4A1.2(j) in calculating his criminal history cate gory. He contends that it is inappropriate for this court to consider the basis for his expungement under Arkansas law because that portion of Application No te 10 requiring the sentence be set aside for reasons of innocence or an error o f law does not apply to convictions which have been “expunged” under state law. He argues the Sentencing Guidelines distinguish convictions whichhave been “expunged” from those which have been “set aside” or “pardoned” und er state law. He concludes that Application Note 10 merely recognizes this dis tinction by permitting consideration of “set aside” convictions for purpos es of calculating a defendant’s criminal history category but restating the prohibi tion 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 basi s 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 consider ed a defendant’s argument that he should be resentence d after he successfully attacked several prior convictions which had been u sed to enhance his federal sentence. The defendant contended that these priorconvictions, which were dismissed or expunged under state law, should not b e used in recalculating his sentence under the Guidelines. See id . at 339. In determining that the defendant’s sentence should be reopened and recalcu lated by the district court, the
Coxcourt held that under U.S.S.G. § 4A1.2(j) and Appl ication Note 10, a sentencing court “must determine the basis for the expungementor dismissal of the prior offenses” when deciding whether prior con victions 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 relatedto constitutional invalidity, innocence, or errors of law are expunged for purposes of the Guidelines and therefore cannot be included in criminal histo ry 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 c onvictions 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] e xplains that convictions excluded from the criminal history calculation are those in which the defendant-8-

was subsequently found innocent or which involved l egal error. These convictions are classified as ‘expunged.’”). The defendant in Coxwas appealing the district court’s denial of his m otion to vacate, set aside, or correct his sentence pursu ant to 28 U.S.C. § 2255. See
Cox , 83 F.3d at 338. The defendant argued that becaus e he successfully attacked four prior convictions which had been used in calcu lating his criminal history category, he should be resentenced without counting those prior convictions. See id. at 339. In support of his claim, the defendant pro vided evidence that two of his prior convictions were “expunged,” one was “dis missed 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 or dered that the defendant’s sentence be reopened but did not rule on whether th e 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 determ ination 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 whethera conviction is properly included in calculating a defendant’s criminal hist ory category. Instead,4 Hines’ reliance on this court’s decision in United States v. Wacker , 72 F.2d

1453 (10th Cir. 1996), for the proposition that a c onviction “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 properlyincluded in calculating the defendant’s criminal history category. See id. at 1479-80. In determining whether the prior conviction should be considered u nder the Sentencing Guidelines, the court examined the purpose of the F YCA’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 err ors of law, and the court therefore concluded that a conviction set aside und er the FYCA is not expunged for purposes of U.S.S.G. § 4A1.2(j). See id . (citation omitted). Wackerthus did not consider whether a conviction “expunged” under state law is also “expunged” for purposes of the Sentencing Guidelines. The cou rt’s analysis in Wackerdoes, however, support our holding that courts must consi der the reason a prior conviction has been pardoned, set aside, or expunge d 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 st atute is controlling for purposes of the Sentencing Guidelines. The parties in Johnson assumed expungement under the Oklahoma statute would prohib it consideration of the prior sentence in calculating the defendant’s crimi nal history category. The sole issue in Johnson was whether expungement under Oklahoma’s deferred sentencing law was automatic upon completion of pro bation or required an affirmative action by the defendant to have his rec ord 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 No te 10 to U.S.S.G. § 4A1.2(j). See id

. -9- sentencing courts are to examine the grounds upon w hich a defendant was pardoned or his sentence was set aside or expunged. 4 Our holding today is consistent with the policies u nderlying 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 Sentencin g Reform Act of 1984, “Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar cri minal offenses committed by similar offenders”). Hines’ arguments disregard th e goal of uniformity by allowing state nomenclature to control whether a se ntence is expunged for purposes of the Sentencing Guidelines. This court, however, has explicitly refused to allow state law terminology to control S entencing 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 co uld not be classified as a “felony offense” for purposes of th e Sentencing Guidelines because under Colorado law the offense was defined as a “mi sdemeanor.” See 65 F.3d at 876-77. This court rejected the defendant’s argume nt, holding instead that the term “felony offense” must be defined with referenc e 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 st atutory 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 i s 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 l aw should control, this court stated: Were we to [rely on state law], the uniformity in s entencing the Guidelines was intended to ensure would be jeopardized. Crim inals with similar records might receive vastly differentsentences simply because their past crimes were defined differently by different states. We believe that uniformity in sentencing may best b e 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 terminolog y controlling in determining whether a sentence is expunged under the Guidelines , the goal of uniformity would be severely jeopardized. This court therefor e 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 Guidel ine 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 th e purpose of removing the stigma of a criminal conviction and restoring the d efendant’s civil rights” and therefore the conviction should be counted in deter mining Hines’ criminal history category. An analysis of Arkansas’ Alternative Service Act and its interpretation by the Arkansas Supreme Court verifies the sentenci ng court’s conclusion. Under the Arkansas Act, Hines was entitled to have his 1988 battery conviction “expunged” “[u]pon the completion of [hi s] sentence.” Ark. Code Ann. § 16-93-510(a) (Michie 1987 & Supp. 1988) (rep ealed 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 pr ovided for expungement regardless of the validity of Hines’ conviction. “Expunge” is defined by Arkansas’ Alternative Servi ce Act as follows: (A) “Expunge” means to make an entry upon the offic ial records kept in the regular course of business by law enforcement agencies and judicial officials evidencing the factthat the records are those relating to eligible offenders as so determin ed and sentenced or paroled under the provisions of this subchapter; th at 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 o r liberties of the defendant

.5 In 1995, the Arkansas legislature adopted new provi sions defining

expungement and addressing the procedure for sealin g criminal records. See Ark. Code Ann. §§ 16-90-901 to 905. Although Hines cite s both Arkansas’ Alternative Service Act and these newer statutory provisions indefining expungement and its effects under Arkansas law, he does not make an iss ue 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 t he sentence imposed under Arkansas’ Alternative Service Act, we limit our ana lysis 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 jud icial 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 explicit ly 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 confiden tiality. Second, the Act does not permit the physical destruction of records relating to expunged convictions and thus assures continued access to the records bycourts. Finally, this definition suggests that the “basis” for expungement under Ark ansas’ 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 conv iction, the person whose record was expunged may thereafter state in any-14-

application for employment, license, civil right, o r privilege, or in any appearance as a witness, that he has not been c onvicted of the offense for which he was convicted and sentenced orplaced 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 underthe Act is to restore a defendant’s civil rights and remove any stigma atta ched 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 with out a showing of innocence or legal error, it indicates that expunge ment 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. S ignificantly, there is no provision which limits the use of expunged convictions in sentencing a defendant. The meaning of “expunge” under Arkansas’ Alternative Se rvice 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 th at presented in the instant case:6 While the Alternative Service Act has undergone sev eral amendments

since its adoption in 1975, the changes are not sig nificant for purposes of this case. Accordingly, the provisions of the Act consi dered 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-applic able Alternative Service Act 6
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 th e conviction of a subsequent crime. See id . at 386-87 (“[The statute] does not state that [adefendant] is free to commit more felonies without accountability as a n habitual criminal.”). The court’s reasoning is important: the express and li mited statutory consequences of expungement exclude other claimed consequences, suc h as prohibiting consideration of the prior conviction under habitua l 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 th e individual to “state in any application for employment, license, civil right orprivilege or in any appearance as a witness that he has not been convicted of the offense,” but it does not limit7 Relying on Gosnell , the Seventh Circuit, in an unpublished order,

determined that the term “expunged” as used in Arka nsas’ Alternative Service Act does not constitute an “expungement” for purposes o f 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 designedto give young offenders a second chance may be counted in calculating a defen dant’s criminal history category under the Sentencing Guidelines. See Wacker , 72 F.3d at 1479 (holding conviction set aside under FYCA to give youthful of fender 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 inte nded 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 allo w 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 sec ond chance granted by FYCA should not shield recidivists from increased penalt ies); 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, co uld 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 offen der. 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 of fice, and to discharge a good citizen’s duty to appear as a witn ess 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 no t there and that would actually be contrary to the over-all legislat ive intent. Id. 8380-81 (2d Cir. 1992) (holding conviction sealed un der Vermont juvenile statute

was expunged for purposes of the Guidelines); United States v. Kammerdiener , 945 F.2d 300, 301 (9th Cir. 1991) (holding convicti on expunged under FYCA could not be counted in determining defendant’s cri minal 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 constitutio nal invalidity, innocence, or errors of law. Rather, the record of his 1988 conv iction was sealed to the public upon his fulfillment of the sentence imposed for th at crime in order to restore his civil rights and give him a new start in the workpl ace and as a citizen. Cf. McDonald, 991 F.2d at 871-72 (holding procedure failed to q ualify as expungement under § 4A1.2(j) because it was based o n social policy goal, not innocence or legal error). The sealing of Hines’ r ecord 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 cal culating his criminal history category and base offense level. Hines was entitle d 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 c itizen 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 fo r the District of Kansas.