Tuesday, June 3, 2014


Yesterday, in US v. Brooks, the Tenth Circuit decided that any Kansas conviction that is not punishable by more than 12 months is, generally, not a felony for federal purposes -- not for felon-in-possession cases, aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors. If 12 is the top number in the box, your client is probably good.

We are working on the retroactive application. For now, think about the prospective use of Brooks because prior felony convictions have far-reaching and serious consequences.

A couple of examples:

Under USSG 2K2.1(a)(1)-(4), the base offense level for felon-in-possession increases for one or more prior convictions for certain felonies. A Kansas conviction for those offenses may not qualify if the client did not face a sentence of greater than 12 months. Moreover, under (b)(6), a four-level enhancement can apply if the weapon was used or possessed "in connection with another felony offense." The offense must be specified, and under Brooks may not be a felony.

Think about supervised release violations, too. The grade of the violation, as defined by USSG 7B1.1, determines the guideline range. Both Grade A and B violations may consider conduct that constitutes a felony -- an "offense punishable by a term of imprisonment exceeding one year." Again, that conduct must be identified. If it happens to fall into a grid box where the top number is 12, your client falls from a Class A to a Class C violation. 

Even if the crime itself is defined as a "crime of violence," like fleeing-and-eluding for career offender purposes, it still may not be a federal felony.

For quick reference (and thanks to David Freund),

More on Brooks later.

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