State “Expungements” Count Under U.S.S.G. § 4A1.2(j) Unless Grounded in Innocence or Legal Error: Fifth Circuit Clarifies the “Underlying Rationale” Test

1. Introduction

United States v. Payne addresses a recurring federal-sentencing problem: when a defendant obtains a state-court “expungement” of a prior conviction, must that conviction still be counted in calculating criminal history under the Federal Sentencing Guidelines?

The defendant, Juan A. Payne, pleaded guilty in federal court to selling methamphetamine (21 U.S.C. § 841(a)(1), (b)(1)(A)). While federally indicted—but before his federal guilty plea—Payne petitioned a Mississippi state court to expunge a 2006 felony marijuana-sale conviction (Miss. Code Ann. § 41-29-139) under Miss. Code Ann. § 99-19-71. The state court entered an agreed order expunging the conviction and declaring the effect was to restore Payne “to the status [he] occupied before he was arrested on this charge,” while preserving certain “non-public records.”

At federal sentencing, the key issue was whether the Mississippi expungement meant the prior conviction was “expunged” for purposes of U.S.S.G. § 4A1.2(j) (“expunged convictions are not counted”). The district court concluded it was not “expunged” within the Guidelines’ meaning, counted it in Payne’s criminal history, and imposed a downward-variant 180-month sentence. Payne appealed.

2. Summary of the Opinion

The Fifth Circuit affirmed. It held that an expungement under Miss. Code Ann. § 99-19-71 is not an “expungement” under U.S.S.G. § 4A1.2(j) where the expungement is not based on innocence or errors of law, but instead functions primarily to restore civil rights and reduce stigma. The court emphasized that the “underlying rationale” for the state expungement controls, not state terminology.

The panel assumed without deciding that Payne’s expungement order was valid under Mississippi law and found that, even if the district court had erred, any Guidelines error would be harmless because the sentencing judge considered both potential ranges and twice stated it would have imposed the same sentence either way.

3. Analysis

3.1. Precedents Cited

The opinion is driven by a line of federal authority interpreting U.S.S.G. § 4A1.2(j) through the Guidelines’ commentary, especially Application Note 10, and by state cases describing the purpose of Mississippi expungement.

• United States v. Pringler, 765 F.3d 445 (5th Cir. 2014): supplied the standard of review (de novo for Guidelines interpretation/application; clear error for factual findings).
• United States v. Vargas, 74 F.4th 673 (5th Cir. 2023) (en banc) and Stinson v. United States, 508 U.S. 36 (1993): reaffirmed that Guidelines commentary “controls” unless inconsistent with the Guideline text or a plainly erroneous reading. This mattered because “expunged” is undefined in § 4A1.2(j), so Application Note 10 performs the operative interpretive work.
• United States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994), vacated in part on other grounds, 38 F.3d 803 (5th Cir. 1994): the Fifth Circuit’s foundational precedent applying Application Note 10. Ashburn held that a conviction “set aside” under the Federal Youth Corrections Act was still countable because it was set aside for reasons “unrelated to innocence or errors of law.”
  Payne’s doctrinal move: It generalizes Ashburn beyond the YCA context: the state’s label (“set aside” vs. “expunged”) is not dispositive; the reason for the relief is.
• United States v. Hines, 133 F.3d 1360 (10th Cir. 1998): strongly endorsed for its “substance over labels” approach. Hines required courts to “analyze the true basis for expungement” and treated “expunged” under § 4A1.2(j) as limited to relief based on “constitutional invalidity, innocence, or errors of law.” The Fifth Circuit used Hines as a template for scrutinizing the Mississippi statute’s effects (sealing, retention of nonpublic records, civil-rights restoration).
• Other circuit decisions were cited as supporting consensus on the “underlying rationale” inquiry: United States v. Dobovsky, 279 F.3d 5 (1st Cir. 2002); United States v. Warner, No. 23-2148, 2025 WL 25852 (3d Cir. Jan. 3, 2025); United States v. Mobley, 96 F. App'x 127 (4th Cir. 2004) (per curiam); United States v. Shor, 549 F.3d 1075 (6th Cir. 2008); United States v. Stowe, 989 F.2d 261 (7th Cir. 1993); United States v. Townsend, 408 F.3d 1020 (8th Cir. 2005); United States v. Shazier, 179 F.3d 1317 (11th Cir. 1999); United States v. McDonald, 991 F.2d 866 (D.C. Cir. 1993). Their collective significance is the uniform federal practice of refusing to let state-law nomenclature control federal criminal-history scoring.
• United States v. Gray, 177 F.3d 86 (1st Cir. 1999): supplied an important federalism principle: states may choose to “expunge” for their own purposes, but “may not dictate how the federal government will vindicate its own interests” in federal sentencing.
• Johnson v. State, 333 So. 3d 116 (Miss. Ct. App. 2022): used by the district court (and referenced approvingly in the Fifth Circuit’s narrative) to highlight concerns about expungements sought without disclosure of pending charges. Although the panel did not decide the expungement’s validity under Mississippi law, Johnson contextualized Mississippi’s emphasis on expungement as promoting rehabilitation, not gaming sentencing consequences.
• Polk v. State, 150 So. 3d 967 (Miss. 2014): quoted for the characterization of expungement as “an act of legislative grace.” It reinforces the point that state expungement is policy-driven and therefore may diverge from the federal Guidelines’ definition and purpose.
• Bell v. State, 382 So. 3d 1172 (Miss. Ct. App. 2024): referenced in a footnote as to Mississippi’s statutory requirement that the court determine “on the record or in writing” that the applicant is rehabilitated under § 99-19-71(2). Notably, the Fifth Circuit did not base its federal holding on whether Mississippi properly applied its rehabilitation requirement; instead, it assumed validity and decided the federal meaning of “expunged.”
• United States v. Greer, 20 F.4th 1071 (5th Cir. 2021), United States v. Guzman-Rendon, 864 F.3d 409 (5th Cir. 2017), and United States v. Nanda, 867 F.3d 522 (5th Cir. 2017): governed harmless-error analysis for potential Guidelines miscalculations. Nanda in particular supported affirmance where the court “explicitly states” it would impose the same sentence even under an alternative range.
• Smith v. Cir. Ct. of Grenada Cnty., No. 21-CV-158, 2022 WL 612345 (N.D. Miss. Feb. 8, 2022), report and recommendation adopted, 2022 WL 610271 (N.D. Miss. Mar. 1, 2022): cited only to reject Payne’s “jurisdiction” argument; it did not support his claim that federal courts are barred from analyzing expungement effects under the Guidelines.

3.2. Legal Reasoning

The court’s reasoning proceeds in three steps: (1) identify the governing federal standard for “expunged” in § 4A1.2(j); (2) apply that standard to the Mississippi statute and Payne’s order; (3) provide an independent harmless-error ground.

(a) The controlling federal standard: Application Note 10 and the “underlying rationale”

U.S.S.G. § 4A1.2(j) excludes “expunged convictions,” but does not define “expunged.” Application Note 10 distinguishes between convictions set aside or pardoned “for reasons unrelated to innocence or errors of law” (which are counted) and true “expunged convictions” (which are not counted). Under United States v. Vargas and Stinson v. United States, this commentary is authoritative because it interprets an otherwise undefined term.

The panel treated United States v. Ashburn as establishing the Fifth Circuit rule: the operative question is not whether state law says “expunged,” but whether the expungement reflects innocence or legal error (non-countable) versus policy reasons such as stigma reduction or civil-rights restoration (countable).

(b) Mississippi’s § 99-19-71 is aimed at rehabilitation/civil status, not innocence/legal error

Applying the “underlying rationale” test, the Fifth Circuit focused on what Miss. Code Ann. § 99-19-71 requires and what it effects:

• Eligibility turns on time and sentence completion; it does not require proving innocence or identifying legal error.
• The statute expunges “from all public records,” while preserving and expressly authorizing retention of “nonpublic record[s]” (e.g., for “first offender” determinations and “law enforcement purposes”).
• The statute’s functional effect is restorative: “to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted.”
• The statute includes collateral-consequences protections (e.g., perjury/false-statement safe harbor for failure to “recite or acknowledge” the arrest/indictment/conviction in many contexts), while carving out contexts where disclosure is still required (first-offender inquiries; venire disclosure in camera; employers may still ask).

Those features parallel the statute analyzed in United States v. Hines, where “expungement” meant sealing/confidentiality and civil-status restoration—not a determination that the conviction was wrongful. As in Hines, Mississippi does not physically erase the conviction for all purposes; it recalibrates access and collateral consequences. That is precisely the category Application Note 10 says remains countable.

(c) Payne’s actual expungement order reinforced the statute-based conclusion

Payne’s order restored him “to the status [he] occupied before he was arrested,” directed expungement requests to DOJ and state information systems, but also expressly preserved “non-public records.” Critically, it did not state the conviction was expunged because it was invalid, erroneous, or factually wrong. For the Fifth Circuit, the order read as a civil-reintegration measure, not an innocence/error remedy.

(d) State labels do not control federal sentencing uniformity

Payne’s primary doctrinal rejoinder—that Mississippi used the word “expunged” while Ashburn involved “set aside”—was rejected because the Guidelines’ uniformity objective would be defeated if states could change federal criminal-history scoring by word choice. The panel embraced Hines on this point and buttressed it with United States v. Gray: states may implement expungement policy, but cannot dictate federal sentencing consequences for federal crimes.

(e) Harmless error as an independent affirmance ground

Even assuming an error, the court held it harmless under United States v. Greer. The district court considered both (i) the PSR range that counted the conviction (262–327 months) and (ii) the addendum’s alternative if it did not (120–121 months, reflecting the statutory mandatory minimum). It then imposed 180 months and twice stated it would impose the same sentence regardless of whether the expunged conviction counted. Under United States v. Nanda, that sufficed.

3.3. Impact

1) A clarified Fifth Circuit rule for state expungements: The decision crystallizes a practical rule for district courts: when a defendant presents a state “expungement,” the sentencing court must determine the expungement’s rationale. If it is not tied to innocence or legal error, the conviction remains countable under § 4A1.2(j) (via Application Note 10), even if state law uses the term “expunged.”

2) Mississippi-specific consequence: Expungements under Miss. Code Ann. § 99-19-71, as a class, are strongly positioned to be treated as countable for federal criminal-history purposes because the statutory scheme is designed around rehabilitation/civil-status restoration, preservation of nonpublic records, and does not require innocence or legal-error findings.

3) Sentencing litigation dynamics: The opinion signals that defendants may win (or defend) expungement validity in state court and still lose the federal Guidelines question. Validity and effect are distinct inquiries: federal courts can accept the state order as valid and still count the conviction for federal purposes.

4) Harmless-error emphasis: The decision also underscores an appellate safe harbor: where a district judge explicitly addresses alternative ranges and states the same sentence would apply, Guidelines disputes may become outcome-neutral on appeal.

4. Complex Concepts Simplified

• “Expunged” under the Guidelines vs. “expunged” under state law: A state may call a conviction “expunged” to limit public access or ease collateral consequences. Under U.S.S.G. § 4A1.2(j), however, the key question is why the conviction was expunged. If it was not because the conviction was wrong (innocence/legal error), federal sentencing generally still counts it.
• Application Note 10: This commentary draws a line between (a) relief given to restore rights/remove stigma and (b) relief reflecting that the conviction should never have happened (innocence/error). Only the latter is the kind of “expunged conviction” excluded from criminal history.
• “Underlying rationale” test: Courts look past the label (“expunged,” “set aside,” “sealed”) to the legal basis and practical effect of the state procedure.
• Harmless Guidelines error: Even if a Guidelines range is miscalculated, an appellate court may affirm if the record shows the district court would impose the same sentence for the same reasons under the correct range (as described in United States v. Greer and applied through United States v. Nanda).

5. Conclusion

United States v. Payne reinforces a uniform federal-sentencing principle: the term “expunged” in U.S.S.G. § 4A1.2(j) is a federal concept anchored in Application Note 10, not a state legislature’s label. When a state expungement serves rehabilitation, civil-rights restoration, or stigma reduction—rather than correcting innocence or legal error—the prior conviction remains countable in federal criminal history.

For practitioners, the key takeaway is strategic and evidentiary: winning an expungement in state court may not affect federal criminal-history scoring unless the relief is grounded in invalidity or innocence, and appellate relief will be difficult where the sentencing judge makes an explicit alternative-range, same-sentence record.