F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 16 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-3134
v.
CURTIS A. HINES, SR.,
Defendant-Appellant.
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 Defendant-
Appellant.
Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
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 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 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507(b)(4) (Michie 1987) (repealed 1993). 2 Under that Act, Hines was entitled to
1
The 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).
2
This opinion cites the statutory provisions of the Arkansas Alternative
Service Act in effect at the time Hines was sentenced for his battery conviction.
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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
The Alternative Service Act was repealed, effective January 1, 1994. See 1993
Ark. Acts 531 and 548.
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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
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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.
3
Hines’ 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.
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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.
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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
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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,
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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
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 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.
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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.
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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.
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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.
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(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
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.
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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:
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whether a conviction expunged under the then-applicable 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 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
6
While 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.
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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
Relying on Gosnell, the Seventh Circuit, in an unpublished order,
7
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).
A number of circuits have used analogous reasoning to hold that
8
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,
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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.
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).
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We AFFIRM the judgment of the United States District Court for the
District of Kansas.
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