Opinion
Case No. 03-40096-01-RDR.
April 22, 2004
MEMORANDUM AND ORDER
On April 16, 2004 the court sentenced the defendant. The purpose of this memorandum and order is to memorialize and elaborate upon the court's ruling at the sentencing hearing.
The defendant entered a plea of guilty to felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Following the preparation of the presentence report, the defendant raised one objection.
The defendant contends that the conviction noted in paragraph 23 of the presentence report has been incorrectly determined to be a felony. The government and the probation office contend that the conviction is a felony punishable by a term exceeding one year.
In order to determine the defendant's base offense level under the guidelines for a conviction under 18 U.S.C. § 922(g)(1), the court must first determine how many felony convictions he has that qualify either as a crime of violence or a controlled substance offense. In 2001 the defendant was convicted in the District Court of Thomas County, Kansas of unlawfully arranging a sale or purchase of a controlled substance using a communication facility in violation of K.S.A. 65-4141. He was sentenced to 11 months, based upon a sentencing range of 9 to 11 months.
The question presented by the defendant's argument is whether this conviction is regarded as a felony conviction under the United States Sentencing Guidelines. Under the guidelines, a "felony conviction" means "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. § 2K2.1 (comment., n. 5). The state crime of which the defendant was convicted is designated under the state guidelines as a Level 8 Non-Person Felony. Under Kansas sentencing guidelines, the guideline range for a Level 8 offense is 7 to 23 months. Within that range, there are nine grids. Each grid represents the defendant's criminal history category. In the defendant's state case, the defendant fell within category G because he had one prior non-person felony, which provided for a guideline range of 9 to 11 months.
Based upon the current state of the Kansas sentencing law in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and some recent Tenth Circuit precedent, the defendant contends that his prior conviction was not a felony. Prior to Apprendi, Kansas state law allowed the maximum presumptive prison level to be doubled under K.S.A. 22-4719(b)(2). After Apprendi, in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), the Kansas Supreme Court declared the scheme for upward departures unconstitutional, and this holding was applied retroactively to the Apprendi decision. Later, after the defendant's state conviction, the state legislature created a valid upward departure scheme.
The Kansas sentencing scheme in effect between June 26, 2000, the date of Apprendi, and June 6, 2002 did not permit upward departures. Thus, the defendant argues that the maximum sentence that he could have received did not exceed one year.
Recently, in United States v. Norris, 319 F.3d 1278 (10th Cir. 2003), the Tenth Circuit provided some support for the defendant's position. In Norris, the Tenth Circuit considered whether prior Kansas convictions that occurred in February and September 1999 were crimes punishable by imprisonment exceeding one year under state law for the purposes of the underlying felony under 18 U.S.C. § 922(g)(1). The Tenth Circuit determined that because the state convictions were final before the cut-off date designated in Gould (June 26, 2000, the date of Apprendi), the decision in Gould had no effect on the proper classification of the defendant's prior conviction. 319 F.3d at 1283. The court, however, noted the following: "Had Mr. Norris' state convictions become final after June 26, 2000, we would have before us a very different case." Id.
There is contrary authority in at least one other circuit. In United States v. Jones, 195 F.3d 205 (4th Cir. 1999),cert. denied, 529 U.S. 1029 (2000), the Fourth Circuit considered virtually the same issue as that raised in Norris. There, the North Carolina sentencing guidelines were almost identical to the Kansas sentencing guidelines. The defendant argued that his prior state conviction was not a qualifying felony under § 922(g)(1) because his presumptive range under North Carolina law was 6 to 8 months and he was sentenced to 8 months. The Fourth Circuit determined that his prior conviction was a felony because the offense statutory maximum under the guidelines was 30 months. 195 F.3d at 207. The court noted that the offense statutory maximum was the statutory maximum for the crime, regardless of the prior criminal record status of the defendant. Id.
In Norris, the Tenth Circuit relied extensively upon United States v. Arnold, 113 F.3d 1146 (10th Cir. 1997) in reaching its decision. In Arnold, the Tenth Circuit held that because Kansas' then-applicable sentencing scheme permitted upward departures from the maximum presumptive sentence based on aggravating factors, where a departure sentence could exceed one year, the underlying offense qualifies as a crime "punishable by imprisonment for a term exceeding one year" under § 922(g)(1). 113 F.3d at 1148. The court reached this conclusion in Arnold even though (1) the defendant's maximum presumptive sentence in that case was less than one year under Kansas law, and (2) the state court did not depart from the presumptive sentence in sentencing the defendant. Id. In so holding, the court noted that "[w]hat matters is not the actual sentence which the appellant received, but the maximum possible sentence." Id. The court also rejected any contention that because no aggravating factors existed in the defendant's case, the presumptive maximum sentence was in fact the "maximum possible sentence." Id. In so doing, the court held that because "[c]onsideration of aggravating factors is discretionary with the trial judge, and the list of factors [in the statute] is expressly nonexclusive . . . until actual imposition of sentence, appellant could not predict whether his sentence would exceed one year." Id. at n. 1.
The defendant has suggested that this is the very "different" case noted in Norris, a situation where the defendant's state conviction became final after June 26, 2000. Although the arguments raised by the defendant have some persuasive value, we must ultimately reject them. In the cases noted by the defendant, the Tenth Circuit considered what constituted a felony for the purposes of 18 U.S.C. § 922(g)(1). Section 922(g)(1) prohibits any person who has been convicted of a crime punishable by a term of imprisonment exceeding one year to, inter alia, "possess in or affecting commerce, any firearm. . . ." Section 921(a)(20) of Title 18 further provides that "what constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." Here, however, we are not faced with whether the defendant's Thomas County conviction is a felony under § 922(g)(1). The defendant has entered a plea of guilty to § 922(g)(1) and has chosen not to raise this issue, even though the underlying felony is the Thomas County conviction. Rather, the defendant contends that his sentence should not be enhanced under U.S.S.G. § 2K2.1(a) based upon the Thomas County conviction. The court believes that, even though we are attempting to determine whether the Thomas County conviction is a felony in both instances, the analysis that must be applied is different in the context of § 2K2.1 than in the context of § 922(g)(1).
Sentencing courts must consider § 2K2.1 in determining the proper base offense level to apply to an unlawful firearm possession conviction. Section 2K2.1(a)(4) authorizes a base offense level of 20 if a defendant "committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a controlled substance offense." U.S.S.G. § 2K2.1(a)(4) (emphasis added). The parties do not dispute that the Thomas County conviction is a controlled substance offense under the guidelines. Rather, the court is only concerned with whether his conviction constitutes a felony conviction for sentencing under § 2K2.1.
The court is not persuaded that the definition of felony conviction under § 2K2.1 must be treated in the same way as the felony conviction requirement of § 922(g)(1). The Tenth Circuit has repeatedly emphasized that one of the purposes of the sentencing guidelines is to promote uniform sentences. See United States v. Diaz-Bonilla, 65 F.3d 875, 877 (10th Cir. 1995). As a result, the Tenth Circuit has refused to rely upon state law where it would impair federal uniformity in sentencing.See United States v. Brown, 314 F.3d 1216, 1223-24 (10th Cir.), cert. denied, 537 U.S. 1223 (2003); see also United States v. Dell, 359 F.3d 1347, 1349 (10th Cir. 2004) (defendant's state court plea in abeyance on controlled substance offense constituted prior felony conviction for determination of base offense level at sentencing for being felon in possession of firearm, even though plea in abeyance was not considered conviction under Utah law). The court does not believe that uniformity would be promoted by the defendant's argument in this case. The defendant's argument allows a felony conviction under the guidelines to be determined by the peculiarities of state law. As suggested in Norris, a determination of a felony conviction under Kansas law would depend upon the timing of the conviction. 319 F.3d at 1283. While such a conclusion might be acceptable for the purposes of § 922(g)(1) where the courts are specifically directed to rely upon state law, we do not believe that such a conclusion is required by the guidelines, where reliance on state law is avoided when it impairs federal uniformity in sentencing. See United States v. Morris, 139 F.3d 582, 584 (8th Cir. 1998) ( 18 U.S.C. § 921(a)(20) is controlling for purposes of defining the felon-in-possession offense, while § 2K2.1 is controlling for purposes of determining resulting guideline sentence). The court is convinced that the defendant's conviction is a felony punishable by a term of imprisonment of more than one year. The defendant was convicted of a crime that carried a possible sentence of 23 months, well in excess of one year. The court finds that the maximum potential sentence is the deciding factor here, not the ultimate sentence the defendant received or the fact that his presumptive grid sentence was less than twelve months. Accordingly, the court shall deny the defendant's objection.