Gould Gold

US v. Jay Hill is an important case for anyone with either gun cases or criminal history issues. Excellent win for Charles Dedmon (and Dave Phillips, who argued the case for Sparky), and a continuation of his good work started in US v. Norris.

Here's the short version: Kansas felonies are measured by the maximum time that the individual defendant was exposed to at the time of sentencing, not the possible sentence for any defendant in that category. So, if the government did not seek an aggravating factor that increased the potential sentence to a prison term 'in excess of one year', and the personal criminal history did not expose her to more that, say, 11 months (grid box says 9, 10, 11), it is not a crime punishable by "in excess of one year," as required by the federal felon-in-possession statute, 18 USC 922(g)(1).


State v. Gould, the source for all this good federal law, determined that sentences in excess of the presumptive range on state sentencing grid must be found by a jury, rather than at the discretion of the sentencing judge.


The Circuit builds on US v. Plakio: "Plakio held the maximum sentence must be calculated by focusing on the particular defendant . . . [because] an integral part of the Kansas sentencing scheme is the application of a particular defendant’s criminal history to determine the presumptive sentence, and that Kansas ties the maximum punishment to the characteristics of the particular defendant."

Now, Hill has expanded on Plakio. A sentence that did not expose a defendant to 'in excess of one year' through a jury-found aggravator (or stipulation) was not convicted of a prohibitive crime under 922(g)(1)(felon-in-possession). Because a Kansas judge no longer has the discretionary power to sentence in excess of the presumptive range, the maximum sentence is the high end of the presumptive range. The result of Hill's 11-month presumptive sentence:

Therefore, at no time was Hill subject to a sentence greater than one year for his 2005 Kansas conviction. Accordingly, Hill does not have a qualifying conviction for the purposes of 18 U.S.C. § 922(g)(1) and his conviction must be overturned.

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. Hill is a well organized and clear opinion on a sort-of complicated issue. It is well worth reading in whole.

With some inspiration from a reader who does not want credit (lest he sully his name by published association with this site), here are some of the possible applications of Hill, or at least issues to consider:

--- 922(g)(1) convictions, of course;

--- if your client has some other prohibitive factor, like alienage a misdemeanor domestic battery for 922(g) purposes, a felony conviction may not increase his base offense level under USSG 2K2.1, ala Plakio, because a felony conviction for the increased BOL's requires an offense punishable by a term exceeding one year. (2K2.1 Appl. note 1);

--- "prior felony conviction" under career offender definition (4B1.2) is defined as a "prior adult federal or state conviction of an offense punishable . . . for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed."

--- 18 USC 924(e), the Armed Career Criminal provision, defines a qualifying serious drug offense as a conviction punishable by a maximum term or imprisonment of ten years or more (e)(2);

--- again from 924(e), violent felony is defined as 'any crime punishable by imprisonment for a term exceeding one year.'

--- pay careful attention to those unfortunate Kansas felonies that have been deemed 'violent' on occasion, such as criminal threat or even fleeing and eluding. Those often have a low presumptive range.

--- the body armor statute (18 USC 931), though, defines felony crime of violence by reference to 18 USC 16, which does not include a maximum term of imprisonment in its definition.

--- for immigration guideline, 2L1.2, the BOL increases based on criminal history. The "felony" definition requires an "offense punishable for a term exceeding one year."

These are, at least, areas for inquiry and further research. Please comment on other ideas, or if there are reasons Hill may not apply to the above categories. All to say, pay careful attention to crimes predicated on a prior felony conviction, statutory penalties relying on prior felony conviction, and guideline applications.

Tim Henry from our Wichita office, who doesn't care if his reputation is sullied by association with this site, has some motions and other research that he is willing to share, or comment here with more thoughts about the application and scope of Hill.

Read more!