Monday, June 09, 2014

Tenth Circuit overrules U.S. v. Hill

Melody Evans won recently in United States v. Brooks, No. 13-3166 (10th Cir. June 2, 2014), reversing Mr. Brooks' sentence and enhancement as a "career offender."  The court held that Mr. Brooks' previous Kansas state conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a) because the top number in his Kansas guidelines grid box for the offense was not more than 12 months.  In doing so, the court overruled United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), and issued a holding that has far reaching impacts for defendants in federal criminal cases in the Tenth Circuit.  As blogged about here, the Hill decision was ripe for overruling, based on the U.S. Supreme Court's decision in Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010).

As Melody has stated over at the Kansas Federal Public Defender Blog, "the Tenth Circuit decided [in Brooks] 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."  Melody's post also includes helpful Kansas sentencing grids, which explain how certain grid boxes are impacted by Brooks.   Here is additional coverage of the opinion by the Sentencing Law and Policy Blog.   

The holding in Brooks is almost identical to the Fourth Circuit holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which involved a similar holding concerning the North Carolina sentencing guidelines.  In fact, Brooks cited to Simmons in its analysis.  And as a preview of what may come to be in the Tenth Circuit, the impact of Simmons in the Fourth Circuit has been huge, affecting thousands of defendants.  The Fourth Circuit has even held in that this type of career offender challenge can be brought in a 28 U.S.C. § 2255 motion.  See Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014).

But as stated above, it's not just about career offender challenges.  The Kansas FPD Blog has already followed up on the subject here (with a post by Daniel Hansmeier), stating that:
Predicate convictions for felony statutes, including the felon-in-possession statute, 18 U.S.C. § 922(g), and its Armed Career Criminal counterpart, 18 U.S.C. § 924(e), no longer include the many Kansas convictions with presumptive sentences of 12 months or less. The same holds true for the numerous recidivist enhancements in the Sentencing Guidelines (think 2K2.1, 4B1.1, and 2L1.2, to name a few). Moving forward, it is imperative that we scrutinize any Kansas conviction used to enhance a sentence in federal court.
This pretty much sums it up.  If a client has a Kansas state prior conviction in federal court, you need to get the journal entry of judgment for the prior offense to see if the top number in the sentencing grid box is 12 months or less.  If it is, it will not count as "a crime punishable by imprisonment for a term exceeding one year," as the phrase is used in so many aspects of federal criminal law.  But just as important is the impact this has for your former clients.  They will be on the clock to file any kind of Whiteside-like habeas relief based on Brooks.  Their deadline is June 2, 2015.

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