Friday, December 28, 2012

Does Carachuri-Rosendo overrule U.S. v. Hill?

A few years ago, in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), the Tenth Circuit grappled with 18 U.S.C. 922(g) and whether a prior Kansas crime was "a crime punishable by imprisonment for a term exceeding one year," under 18 U.S.C. § 922(g)(1), when the Kansas guideline range applicable to the person was, at the top end, less than or equal to one year.  Ultimately, the court ruled that defendant's prior Kansas conviction constituted a qualifying felony required to support his federal conviction for "felon in possession of a firearm" because the maximum possible sentence, with the highest possible criminal history (criminal history A), could have taken the sentence to a term of more than one year.

The Hill decision was significant because it made many Kansas defendants who had been convicted of low-level state felonies prohibited persons under 18 U.S.C. § 922(g)(1).  For example, Hill had committed a severity level 8 felony in Kansas, and the presumptive guidelines range for his offense was 9 to 11 months.  But he was considered a felon under 18 U.S.C. § 922(g)(1), and thus prohibited from possessing a gun or ammunition, because his conviction could have been "a crime punishable by imprisonment for a term exceeding one year" - if his criminal history had been worse.

The opinion in Hill had a great impact on federal defendants, as there are several federal statutes that use similar language requiring a prior conviction or sentence to have been for a "a crime punishable by imprisonment for a term exceeding one year."  See, e.g., 18 U.S.C. § 922(g)(1); 18 U.S.C. § 924(e); 21 U.S.C. § 841; 21 U.S.C. § 802(44); U.S.S.G. § 2K2.1, U.S.S.G. § 4B1.1; U.S.S.G. § 4B1.2.

The Hill opinion (and the earlier opinion - before the court flip-flopped) was blogged about here, here, and here by the Kansas Federal Defender blog.  The original opinion was also discussed here by this blog.

The court held that United States v. Rodriquez, 553 U.S. 377 (2008) (discussing similar language in 18 U.S.C. § 924[e]) controlled and that the U.S. Supreme Court mandated that the analysis should focus on the maximum possible sentence for the predicate crime of conviction and not the maximum sentence for a particular offender based on their criminal history.  The Hill court also relied upon the Fourth Circuit's decision in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).

Is Hill still good law?

 In Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010), the U.S. Supreme Court clarified the definition of "aggravated felony" for immigration purposes (if someone has a prior conviction for an aggravated felony, they are automatically deported).  8 U.S.C. § 1101(a)(43)(B) defines that term to include, inter alia, “illicit trafficking in a controlled substance . . . including a drug trafficking crime” as defined in 18 U.S.C. § 924(c), which, in turn, defines a “drug trafficking crime” as a “felony punishable under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.)."  For purposes of this analysis, a felony is a crime for which the “maximum term of imprisonment authorized” is “more than one year.”  18 U.S.C. § 3559(a).

Carachuri–Rosendo held that that a second or subsequent conviction on a simple drug possession charge is not an "aggravated felony" for purposes of the Immigration and Nationality Act (INA) when the state conviction is not based on the fact of a prior conviction.  In other words, the government cannot rely on a state misdemeanor drug possession conviction as an aggravated felony simply because the offense could have been charged as a felony.  Here is analysis of the case from Scotusblog.

In United States v. Haltiwanger, 637 F.3d 881, 883 (8th Cir. 2011), the Eighth Circuit used the holding in Carachuri–Rosendo and the earlier holding in Rodriquez to determine whether a prior Kansas a drug tax stamp conviction qualifies as a felony under 21 U.S.C. § 841(b)(1):
After reconsidering our decision in light of Carachuri–Rosendo, we now believe the magistrate judge's analysis of the Rodriquez decision was sound. Because the Kansas sentencing structure links maximum terms of imprisonment directly to a particular defendant's recidivism (or lack thereof), we believe Carachuri–Rosendo and Rodriquez require us to take into account the seven-month cap on Haltiwanger's individual sentence when determining whether the tax stamp conviction qualifies as a felony under 21 U.S.C. § 841(b)(1).
The court went further:
Thus, where a maximum term of imprisonment of more than one year is directly tied to recidivism, Carachuri–Rosendo and Rodriquez require that an actual recidivist finding—rather than the mere possibility of a recidivist finding—must be part of a particular defendant's record of conviction for the conviction to qualify as a felony.
Haltiwanger, 637 F.3d at 884.  The Eighth Circuit's decision in Haltiwanger seems to be in direct conflict with the Tenth Circuit's holding in Hill, even though Hill dealt with 18 U.S.C. § 922(g)(1) instead of 21 U.S.C. § 841(b)(1).  

The Fourth Circuit recently made a similar holding in U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011).  Simmons held that government could not rely on a hypothetical criminal history enhancement or hypothetical aggravating factors to set the maximum term of imprisonment for a state prior conviction under Controlled Substances Act (CSA).  The court relied favorably upon Haltiwanger, in which the Eighth Circuit made a similar holding regarding the Kansas Sentencing Guidelines. The court also overruled its earlier decision in Harp, which was relied upon by the Tenth Circuit in Hill.

Although Hill was not discussed by the Fourth Circuit in Simmons or by the Eighth Circuit in Haltiwanger, it appears that both circuits believe that the Supreme Court's decisions in Carachuri–Rosendo and Rodriquez require a different outcome than that reached in Hill.  For example, the Fourth Circuit has specifically applied the holding in Simmons to cases involving 18 U.S.C. § 922(g)(1).  See United States v. Ross, 447 F. App'x 493 (4th Cir. 2011) (unpublished).  The Fourth Circuit's view of Carachuri–Rosendo and Rodriquez is directly contrary to the Tenth Circuit's opinion in Hill.

Thus, it seems that at least two circuit courts believe that the U.S. Supreme Court's decisions in Carachuri–Rosendo and Rodriquez require a different outcome than that reached by the Tenth Circuit in Hill.  One might say that this is simply a circuit split on whether hypothetical criminal history can be used to determine whether a prior state conviction is "a crime punishable by imprisonment for a term exceeding one year" for purposes of 18 U.S.C. § 922(g)(1).  But the case law, post-Carachuri–Rosendo, seems be pretty clear that Hill would not survive Carachuri–Rosendo.

The impact - if U.S. v. Hill were to be overturned.

In the Fourth Circuit, the impact of Simmons has been huge.  There are estimates that thousands of convicted felons, under North Carolina law, are no longer considered prohibited persons under 18 U.S.C. § 922(g)(1).  In Kansas, the result would likely be the same, as Kansas' sentencing guidelines are very similar to North Carolina's.  As stated above, the language used in  18 U.S.C. § 922(g)(1) making a felony "a crime punishable by imprisonment for a term exceeding one year," is used many times in federal law.  For a detailed analysis of how the overturning of Hill could impact federal defendants, I suggest reading Melody Evan's blog post on the original Hill decision.  As she stated at the time, "Go back and look at the state court judgment on your client's prior Kansas conviction, see what that sentencing box says. It could make a world of difference, from a lesser sentence to an outright defeat of a felon-in-possession charge."

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