                                                                          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      This order and judgment is not binding precedent, except under the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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