By Britane Hubbard*

On January 1, 2025, Minnesota’s new automatic expungement statutes will go into effect.^[1] Under this new law, the Bureau of Criminal Apprehension will identify eligible people and grant them expungement relief if they qualify.^[2] Offenses eligible for expungement range from petty misdemeanors to felonies.^[3] The possibility of a new wave of expungements raises many legal questions. One question is whether expungements under the new statutes could change federal prison sentences for those whose state convictions were used in calculating their federal sentence.

            For example, under the United States Sentencing Guidelines (“Guidelines”),^[4] points are allocated for each prior sentence of imprisonment that an offender has.^[5] These points are then added up to determine a person’s “criminal history category” which corresponds with a sentencing guideline range.^[6] The more points a person has the higher the applicable guideline sentencing range.^[7] However, the Notes to the Guidelines specifically state that “[c]ertain prior sentences are not counted” such as “a sentence for. . . a conviction that has been expunged.”^[8] Additionally, the instructions given for computing criminal history specifically state that “[s]entences for expunged convictions are not counted.”^[9]

So, what happens when a Minnesota conviction and sentence that was used to calculate a person’s federal sentence is later expunged? The short answer, at least in the Eighth Circuit is nothing. Typically, if a federal sentence is calculated in part on a prior state conviction which “is later vacated, the defendant may successfully attack his federal sentence.”^[10] A person “seeking to challenge their convictions and/or sentence after the conclusion of [their] trial and direct appeals process usually must file a motion to vacate under 28 U.S.C. § 2255.”^[11] This has also historically been called a habeas corpus petition.^[12]

 Given the Guidelines specific language that expunged sentences should not be counted, a reasonable assumption would be that the federal sentence should be re-calculated without the points derived from the expunged sentence.^[13] However, the “Guidelines do not expressly define the term ‘expunged.’”^[14] The Eighth Circuit has looked to the Guideline commentary to find that “expunged convictions under [the Guidelines] appear to be those (1) reversed or vacated due to legal errors or later-discovered evidence exonerating the defendant or (2) ruled constitutionally invalid.”^[15] Moreover, “federal law, not state law determines whether a prior sentence is counted for criminal history purposes,”^[16] which essentially means 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.”^[17] In other words, “the federal question ‘is whether the defendant was previously convicted, not the particulars of how state law later might have, as a matter of grace, permitted that conviction to be excused, satisfied, or otherwise set aside.”^[18] The point of this distinction “is that this type of expungement statute limits public access to the records of a defendant’s prior conviction ‘in order to restore his civil rights and give him a new start in the work place and as a citizen,’ but it does not permit him to commit more crimes free of additional punishment based upon his recidivism.”^[19]

“[W]hen determining whether a conviction is “expunged” under the Guidelines, “a court must examine the “basis” for the expunction.”^[20] This is because generally an “expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.”^[21] Thus, if a “state court sentence[] is modified after [it] was served ‘for reasons unrelated to [defendant’s] innocence or errors of law” [then it] should be counted in calculating his criminal history score under the guidelines.”^[22] Consequently, to have an impact on a person’s federal sentence, Minnesota’s new expungement statutes must expunge convictions that were used to enhance their federal sentence and were related to innocence or errors of law.^[23]

First, Minn. Stat. §609A.017 deals with cases of mistaken identity, which relates to innocence and errors, because it “means a person was incorrectly identified. . .as a result of misidentification by a witness or law enforcement officer.”^[24] Thus, if a state charge is expunged under this provision, it could impact their federal sentence. Second, §609A.035 addresses pardons, which occur “[w]hen the Board of Pardons unanimously agrees to forgive a person convicted of a crime, so that any remaining penalties or punishments are removed and the convicted person is treated as innocent.” However, this type of expungement “does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.”^[25] Consequently, it likely could not be used to alter a federal sentence. Lastly, Minn. Stat. §609A.015 addresses expungements of dismissals, deferred prosecution agreements or diversions, stays of adjudication, and specific enumerated offenses deemed eligible.^[26] Dismissals of state charges would typically not be used to calculate a federal sentence because points are only added to a criminal history category under the Guidelines for each “prior sentence of imprisonment” which is defined as “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.”^[27] The remaining expungements authorized under §609A.015 are the exact types of expungements created “as a matter of grace”^[28] to “restore civil rights and give. . .a new start,”^[29] which cannot be used to alter a federal sentence. Therefore, Minnesota’s new automatic expungement statutes will have little effect on federal sentences calculated using the expunged conviction.

*Britane Hubbard is a Lead Symposium Editor for JLI

^[1]See Chapter 52––S.F.No 2909, 2023 Minn. Laws, §609A.01 (creating section §§609A.015, 609A.017, or 609A.035, under which expungements are automatic).

^[2] Id. at Subd. 5.

^[3] Id. at Subd. 3(b)(1)-(5)

^[4] The Guidelines are promulgated “by the United States Sentencing Commission” U.S.S.G §1a3.1, and “district courts are required to properly calculate and consider the guidelines when sentencing” even though they are now advisory in nature.  U.S.S.G. Ch. ONE, Pt. A, Subpt. 2;  United States v. Booker, 543 U.S. 220, 264 (2005).

^[5]  U.S.S.G §4A1.1(a)-(e).

^[6] U.S.S.G §4A1.1, Commentary (“The total criminal history points from §4A1.1 determine the criminal history category (I-VI) in the Sentencing Table in Chapter Five, Part A.”).

^[7] See U.S.S.G, Chapter 5, Part A, Sentencing Table.

^[8] U.S.S.G. §4A1.1,  Comment 1.

^[9] U.S.S.G §4A1.2(j).

^[10] Hirman v. United States, 613 F.3d 773, 776 (8th Cir. 2010) (agreeing that a defendant can challenge a federal sentence enhancement based on vacated state conviction) (quoting Johnson v. United States, 544 U.S. 295, 302–03, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) and  Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001).

^[11] Michael D. Contino, CONG. RSCH. SERV., LSB10862, Saving Habeas: Section 2255’s Safety Valve 1 (2022), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://crsreports.congress.gov/product/pdf/LSB/LSB10862.

^[12] Id. at 2 (describing the historical development of habeas which resulted in the current §2255 which “placed habeas jurisdiction in the sentencing court, allowing federal prisoners as well as courts a more convenient forum for seeking post-conviction relief.”)

^[13] See U.S.S.G §4A1.2(j).

^[14] United States v. Townsend, 408 F.3d 1020, 1023 (8th Cir. 2005) (citing U.S.S.G. § 4A1.2, cmt. n. 6.).

^[15] Id.

^[16] Id. at 1024.

^[17] Id. (quoting United States v. Hines, 133 F.3d 1360, 1363 (10th Cir.1998)).

^[18] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013)).

^[19] United States v. Nelson, 589 F.3d 924, 926 (8th Cir. 2009) (citing United States v. Hines, 133 F.3d 1360, 1366 (10th Cir.1998)).

^[20] United States v. Townsend, 408 F.3d 1020, 1024 (8th Cir. 2005).

^[21] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting  Dickerson v. New Banner Inst., Inc., 103 S.Ct. 986, 986 (1983)).

^[22] Id. at 1023 (quoting United States v. Martinez-Cortez, 354 F.3d 830, 832-33 (8th Cir.), cert. denied, 543 U.S. 847, 125 S.Ct. 291, 160 L.Ed.2d 76 (2004)).

^[23] Id.

^[24] Minn. Stat. §609A.017.

^[25]  United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting  Dickerson v. New Banner Inst., Inc., 103 S.Ct. 986, 986 (1983)).

^[26] See subdivisions (1)-(3) of  Minn. Stat. §609A.015.

^[27]  U.S.S.G §4A1.1;  §4A1.2(a).

^[28] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013)).

^[29] United States v. Nelson, 589 F.3d 924, 926 (8th Cir. 2009) (citing United States v. Hines, 133 F.3d 1360, 1366 (10th Cir.1998)).