Is a prior conviction from Kansas a felony for purposes of
federal law? Yes, if the conviction is one that is punishable by a term of
imprisonment exceeding one year. But when is a conviction from Kansas
punishable by a term of imprisonment exceeding one year? This seemingly simple
question has caused confusion in the Tenth Circuit, confusion rooted in
Kansas’s sentencing guidelines scheme.
Similar to the federal guidelines, the
Kansas scheme is based on the crime of conviction and the defendant’s criminal
history; the two merge in a grid, and that grid provides presumptive
punishments in particular cases. In 2005, the Tenth Circuit, in United States v. Plakio, 433 F.3d 692,
held that the numbers in this grid set the statutory maximum sentences for a
particular offense. Thus, if the highest number in the grid (there are three)
is 12 (or less than 12), the conviction is not
a federal felony (because it is not punishable by a term of imprisonment of
more than one year).
Simple enough. Or not. In 2008, the Tenth Circuit changed
course, overruling Plakio in United States v. Hill, 539 F.3d 1213.
The Tenth Circuit thought Plakio
incorrect in light of a decision from the Supreme Court – United States v. Rodriguez, 553 U.S. 377 (2008). But two years
later the Supreme Court expanded upon Rodriguez
in Carachuri–Rosendo v. Holder, 560
U.S. 563 (2010), an important case in which the Supreme Court rejected a
“hypothetical approach” to recidivist statutes in favor of an approach rooted
in the realities of a particular case. So, if a defendant is a recidivist, but
was not subject to a recidivist punishment, then the recidivist punishment is
irrelevant, even if the defendant could have been charged as a recidivist.
In a decision published last week -- United States v. Brooks, __ F.3d __,2014 WL 2443032 (10th Cir. June
2, 2014) – the Tenth Circuit came full circle, overruling Hill in light of the Supreme Court’s decision in Carachuri-Rosendo. The case is a must
read for any attorney that practices in the Tenth Circuit, and particularly in
Kansas. It makes clear the statutory maximum sentence for a prior Kansas
conviction is the presumptive sentence under the Kansas guidelines grid. If the
grid produces a presumptive sentence of 12 months or less, the conviction is
not a felony for purposes of federal law.
As one might imagine, the decision
has serious and far-reaching consequences.
Predicate convictions for felony
statutes, including the felon-in-possession statute, 18 U.S.C. § 922(g), and
its Armed Career Criminal counterpart, 18 U.S.C. § 924(e), no longer include
the many Kansas convictions with presumptive sentences of 12 months or less.
The same holds true for the numerous recidivist enhancements in the Sentencing
Guidelines (think 2K2.1, 4B1.1, and 2L1.2, to name a few). Moving forward, it
is imperative that we scrutinize any Kansas conviction used to enhance a
sentence in federal court. We’ve also begun to review the many prior
convictions and sentences that might be affected by the decision in Brooks. Do not hesitate to contact us if
you have a Brooks-related issue come
up in one of your cases.
-- Post by Daniel Hansmeier, AFPD in the District of Kansas, Kansas City office.