Climbing the Hill

Always mighty grateful to guest bloggers, here is Charles Dedmon describing the courts' flip-flopping in US v. Jay Hill:

The January 15 decision of the Tenth Circuit in United States v. Jay Hill 512 F.3d. 1277 has been vacated. The decision was reheard by the original panel and the Judgment in Mr. Hill’s favor was reversed. United States v. Hill No. 07-3034 (10th Cir., Aug. 22, 2008).

Mr. Hill’s case had dealt with the interplay between the choice of law provision applicable to 18 U.S.C. 922(g) and Kansas sentencing law. Specifically, the question involved whether a prior Kansas crime was punishable by a term of incarceration greater than one year when the Kansas guideline range applicable to the person was, at the top end, less than or equal to one year.

Previously the Court of Appeals had taken note of State v. Gould 23 P.3rd 801 (Kan. Sup. Ct., 2001) and had interpreted Kansas sentencing law in conformity with that opinion. Gould, which remains the definitive interpretation of Kansas guideline practice, had held that the maximum sentence which a Kansas defendant could receive was a sentence of months within the guideline range applicable to that defendant.

This case was never heard en banc, it was simply reheard on additional briefs. The panel found in United States v. Rodriquez 128 S. Ct. 1783 (2008) authority to overturn a line of cases, including the original panel decision in Hill. Rodriquez, the panel noted, was a case arising under the Armed Career Criminal Act (18 U.S.C. 924(e)). The Supreme Court had held that Rodriquez was subject to the Act because he had a Washington State conviction which carried the potential for a sentence of ten years or more. Such a maximum penalty is required for a crime to be a "serious drug offense" under the ACCA. It was this intervening precedent from the U. S. Supreme Court which permitted the panel to overrule earlier binding precedent, at least, according to the panel.

The essence of the new opinion is that the focus in determining what an underlying crime is punishable by must focus on the crime and not the defendant. Yet Rodriquez actually did have a valid basis for a recidivism based doubling of his Washington prior. Hill, on the other hand, could not have received a constitutional sentence greater than eleven months, the top of his guideline range. Also, the backdrop of the Rodriquez case, Washington sentencing law, had no case speaking to the subject of the U. S. Supreme Court opinion, while Kansas sentencing law does; State v. Gould. Under the choice of law provision applicable to 18 U.S.C. 922 (g) (1), Gould should provide the Kansas law answer and Rodriquez should be distinguishable.
The appeal is not over. At the end of the new opinion the panel suspended the rule barring successive rehearing petitions, thereby inviting another rehearing petition on behalf of Mr. Hill. Hopefully, the panel will allow argument on the issues presented by the new panel decision.

Stay tuned . . . .
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