F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 18 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3296
(D.C. No. 99-CR-40069-02-RDR)
CHRIS BUTLER, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant pled guilty to two offenses, one a drug-related conspiracy, the
other the attempted intimidation of a witness. The district court sentenced him to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
204 months in prison on the former conviction, and a concurrent 120 months on
the latter. Defendant challenges two aspects of his sentence.
First, he claims the district court committed plain error when it added three
points to his criminal history calculation for a prior state court conviction.
Relying on United States Sentencing Commission, Guideline Manual , § 4A1.2(j),
he contends that since his state conviction was later expunged, it should not be
counted in determining his criminal history.
Defendant concedes that controlling precedent from this court authorized
the district court to include his prior state court conviction in calculating his
criminal history. See United States v. Hines , 133 F.3d 1360, 1363 (10th Cir.
1998). Under the federal sentencing guidelines, as defendant acknowledges, prior
convictions that are set aside or 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,” are counted. USSG § 4A1.2, comment
(n.10). In counting the prior conviction, the district court specifically found that
the purpose of defendant’s expungement was to remove the stigma of a criminal
conviction and restore his civil rights.
In Hines , we said 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.” Hines , 133 F.3d at 1363. “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.” Id. This is exactly what
the district court did here.
Defendant urges us to overrule Hines and other Tenth Circuit cases
preceding and following Hines . We are unable to consider such a request.
Absent an intervening, contrary decision of the Supreme Court, one circuit panel
cannot overrule the decision of another panel, without express authorization from
the en banc court. Starzynski v. Sequoia Forest Indus. , 72 F.3d 816, 819
(10th Cir. 1995).
Defendant next objects to the enhancement of his offense level for
obstruction of justice under USSG § 3C1.1. The application of this enhancement
was based upon defendant’s admitted attempt to intimidate a law enforcement
officer during the course of the investigation leading to defendant’s convictions.
The district court applied the enhancement not to defendant’s conviction for
attempting to intimidate a witness, but to his drug-related conspiracy conviction.
At the sentencing hearing, defendant raised several objections to the
application of the obstruction of justice enhancement. On appeal, he argues that
the district court erred in failing to address all of his objections. He asks that we
vacate his sentence and remand this case to the district court for further factual
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findings. Having reviewed the record, however, we conclude that the district
court did in fact address all of defendant’s objections, and did so adequately.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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