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.