                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          AUG 30 1999

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-8077
 v.
                                                 (D.C. No. 98-CR-03-03-D)
                                                        (Wyoming)
 VICTORIA QUINTANILLA, also
 known as Victoria Negrete Hinojosa,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Ms. Victoria Quintanilla entered a guilty plea to conspiracy to distribute

and to possess with intent to distribute methamphetamine in violation of 21


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
U.S.C. § 846. She was sentenced to 168 months imprisonment and five years of

supervised release. She appeals her sentence on two grounds, arguing that she

should have been granted a reduction for her role as a minor participant and that

her criminal history calculation should not have included a diversionary sentence

she received for two misdemeanors. We affirm.

      Ms. Quintanilla acted as a runner between California and Wyoming for a

methamphetamine trafficking conspiracy for which she delivered over sixteen

pounds of drugs in two deliveries. Although the conspiracy involved over 180

pounds of methamphetamine, Ms. Quintanilla’s sentence held her responsible only

for the sixteen pounds.

      She now argues that her role as a drug courier entitles her to an offense

level reduction for her role as a “minor participant” under U.S.S.G. § 3B1.2. We

review the district court’s findings of fact on this issue for clear error and give

due deference to the court’s application of the sentencing guidelines to the facts.

See United States v. Smith, 131 F.3d 1392, 1399 (10th Cir. 1997). The defendant

has the burden to show entitlement to an offense level reduction under U.S.S.G. §

3B1.2. See United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994).

      Rather than accepting the state terminology Ms. Quintanilla argues that

since she had minimum contact with the core conspirators and transported only a

fraction of the total drugs in the conspiracy, her role as a drug courier was


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removed enough from the conspiracy to warrant a reduction. We are not

persuaded. In evaluating drug runners, this Circuit looks to “culpability, not

courier status,” United States v. Martinez, 983 F.2d 968, 977 (10th Cir. 1992)

(citations omitted). We have recognized that a courier is “indispensable” to any

drug conspiracy. Ballard, 16 F.3d at 1114. We have also noted that mitigation

could be appropriate for a courier in “a single smuggling transaction involving a

small amount of drugs.” Martinez, 983 F.2d at 977 (citation omitted). Ms.

Quintanilla, however, does not challenge her culpability in transporting sixteen

pounds of drugs in what the district court found to be a “pattern of conduct,” Rec.

vol. III, at 20.

       Moreover, “a defendant is not entitled to a mitigating role adjustment

where the relevant conduct of the conspiracy was not considered in calculating

the base offense level.” United States v. James, 157 F.3d 1218, 1220 (10th Cir.

1998). Since Ms. Quitanilla was sentenced only on the basis of the sixteen

pounds attributed to her own conduct, and not the 180 pounds attributed to the

total conspiracy, it makes no sense to grant a reduction for her role in her own

conduct. The district court did not err in denying her a reduction.

       In her second argument, Ms Quintanilla contends a prior sentence was

effectively “expunged” under operation of California law and was therefore

improperly included in her criminal history calculation. In 1995, Ms. Quintanilla


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pled guilty to two state misdemeanors and received a diversionary sentence which

she completed successfully. As a result, under California law the misdemeanors

were apparently considered never to have occurred. In the sentencing for the

federal crime in the instant case, the misdemeanors were added to her criminal

history. We review the district court’s legal interpretation of the guidelines de

novo. See United States v. Hines, 133 F.3d 1360, 1361 (10th Cir. 1998).

      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). Application note 10 to section 4A1.2(j),

however, provides that “[a] number of jurisdictions have various procedures

pursuant to which a previous conviction may be set aside or the defendant may be

pardoned for reasons unrelated to innocence or errors of law . . . . Sentences

resulting from such convictions are to be counted.” Interpreting the Guidelines,

we have held that “[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.’” Hines, 133 F.3d at 1364 (citation omitted).

      In Hines, the defendant argued that a state battery conviction expunged

under Arkansas law should not be included in the calculation of his criminal

history for sentencing in his federal conviction. Unpersuaded, we held “a state’s

use of the term ‘expunge’ is not controlling in determining whether a conviction


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is properly included in calculating a defendant’s criminal history category.” Id. at

1363 (interpreting United States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996)). We

directed sentencing courts to examine the “basis” for expungement.

      Similarly, we examine the basis of Ms. Quintanilla’s earlier convictions

rather than accepting the state terminology. Ms. Quintanilla pled guilty to the

state charges and has at no point challenged the legal validity of that plea.

Because she presents no evidence that her diversionary sentence was “expunged”

for “constitutional invalidity, innocence, or errors of law,” we conclude the

conviction was not expunged for purposes of the Sentencing Guidelines and was

properly included in her criminal history offense level.

      We AFFIRM.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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