As a follow-up on Dan's ACCA post last week, remember that some Kansas felony drug ACCA-supporting convictions may no longer qualify after Brooks:
1) For a prior drug felony conviction to support an ACCA enhancement (statutory text after the jump), it had to have been subject to a ten-year or higher maximum sentence. That is, at the time the defendant was sentenced on the prior, the sentencing court could have imposed a ten-year sentence or more. If it falls short of that, it doesn't support an ACCA enhancement.
2) The maximum penalty that can be imposed on a Kansas drug felony conviction is based on the sentencing grid, specifically the box or range of penalties that applied to the defendant. This is based on the Tenth Circuit's decision in U.S. v. Brooks.
3) Looking at the Kansas state court judgment for the prior drug conviction, if the top of the penalty range is less than 120 months, the felony drug conviction does not count for ACCA. About half of the grid falls below 120 months.
Then you are back to a ten-year ceiling instead of a 15-year floor.
And, as promised, Johnson v. US was argued at the Supreme Court last week, transcript here. The question is whether possession of a short-barreled shotgun is a violent felony. For one interesting take on the argument, go here. This is the fifth time in seven years that the Court has struggled with the term "violent felony" under ACCA, and this fuels the question of whether the Court will finally admit the statute is void for vagueness, as Scalia has argued.
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