Tuesday, September 22, 2015

Brooks 2.0

A Kansas presumptive probation sentence might not qualify as a federal felony, regardless of whether the underlying state prison sentence exceeded 12 months. A federal felony is generally defined as a conviction punishable by a term of imprisonment exceeding one year. A presumptive probation sentence is not, absent a dispositional departure, subject to imprisonment for any term.

Kansas sentences are controlled exclusively by the sentencing grid. Unlike the federal statutory ranges that fence the advisory guidelines, the state grids are the statutory range in Kansas. If the projected sentence falls within a presumptive probation box – as opposed to a presumptive prison or “border box” where the court can go either way – the judge cannot impose a prison sentence (caveat below). If the state court could not have imposed a prison sentence, then the conviction is not one that carries a “term of imprisonment exceeding one year.”

Key question: What options did the state court judge have at the moment the defendant, with her recidivist record, appeared for sentencing? If prison was not an option, then it was not a conviction punishable by a term of imprisonment exceeding one year. 

Not questions: What sentence was actually imposed? What sentence could another person could have received? What could the sentence theoretically be if the prosecution had proceeded differently?

Brooks 2.0: The reasoning is the same as in US v. Brooks, decided in 2014. There, the Tenth Circuit said that a Kansas sentence of imprisonment that could not have exceeded 12 months was not a felony, as defined by federal law. “[I]n determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received.” It follows from Brooks that when the defendant stands before the court in a presumptive probation box, and a prison sentence cannot be imposed, it is not a conviction punishable by a term of imprisonment exceeding one year. 

Caveat: In a Brooks scenario, if the state prosecution actually sought a durational departure – that is, a sentence that exceeded the high number in the grid box – then that could have allowed the state court to sentence in excess of 12 months. In that event, the defendant would be back in federal-felony land. Here, the question is not a durational departure, but a dispositional departure. The state prosecution can, in some circumstances, pursue a dispositional departure, that is, a prison sentence rather than the presumptive probation that the grid calls for. But if those procedures were not followed, and the court only had discretion to impose a non-custodial sentence, it is not a conviction punishable by imprisonment. Other conditions, such as mandatory drug treatment, may complicate the argument, but it should still prevail.

Other examples of complications arise in US v. Romero-Leon, an unpublished decision from the Tenth Circuit that applied Brooks to a New Mexico prior conviction. There, the defendant was not subject to more than ten years imprisonment on a prior New Mexico drug conviction, thus the state conviction could not qualify as an ACCA predicate. The government raised several arguments about how, under the New Mexico system, things could have turned out differently. All were rejected. Remember, from Carachuri-Rosendo, the Supreme Court rejected federal back-peddling on state proceedings, “Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact . . . we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns."

The Result: A presumptive probation sentence might not qualify as an element of a felon-in-possession charge or as an aggravated felony for illegal reentry purposes. It may not support a statutory sentence enhancement like ACCA or an 851 increase. It may not increase base offense levels (2K2.1) or trigger the career offender guideline (4B1.1).

It is extremely important to check and double-check your client’s criminal history. Presumptive probation covers a fair amount of landscape on the grids, both drug and non-drug.

Reminder: The District of Kansas Fall CLE (Oct 8 in Wichita, Oct 9 in Lawrence) is all about predicate offenses. A whole day of nothing but predicate offense fun. Well, almost a whole day. Because this is really important stuff, and not always that easy to unpack. See www.kansasfpd.org for details. The CLE and lunch are free.

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