APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 2:11-CR-20136-KHV-1).
Melody Evans, Interim Federal Public Defender, Topeka, KS, for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.
Before KELLY, BALDOCK, and HARTZ, Circuit Judges.
BALDOCK, Circuit Judge.
Did Defendant Damian L. Brooks commit enough prior qualifying felonies to be considered a " career offender" under the Federal Sentencing Guidelines? The district court below said yes, relying on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify a prior Kansas conviction of Defendant as a felony because it was punishable by more than one year in prison. On appeal, Defendant admits Hill mandates this classification. He argues, however, that Hill was abrogated by the Supreme Court in
Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). We agree. As such, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse and remand for resentencing.
A. Kansas Sentencing Guidelines
Kansas's rather unusual criminal sentencing scheme lies at the heart of the current dispute. While we now abandon Hill's holding, we do not quibble with Hill's description of Kansas's sentencing parameters. In general, Kansas criminal statutes do not contain explicit maximum penalties ( e.g . " Burglary is punishable by no more than ten years . . . ." ). See, e.g., Kan. Stat. Ann. § 21-6201 (2010). Instead,
[t]he determination of a felony sentence [in Kansas] is based on two factors: the current crime of conviction and the offender's prior criminal history. The Kansas sentencing guidelines employ a grid, which is a two-dimensional chart. The grid's vertical axis lists the various
levels of crime severity, ranging from I to IX for non-drug offenses. The horizontal axis is the criminal history scale, which classifies various criminal histories. To determine an offender's presumptive sentence, one must consult the grid box at the juncture of the severity level of the crime for which the defendant was convicted and the offender's criminal history category. . . .
On June 6, 2002, Kansas adopted new sentencing provisions . . . eradicat[ing] the trial court's discretion to sentence a defendant to an upward departure [from the presumptive sentence] based on aggravating factors. Instead, upward departures are permitted where by unanimous vote, the jury finds beyond a reasonable doubt that one or more specific factors exist that may serve to enhance the maximum sentence. The state must seek an upward departure sentence not less than thirty days prior to trial. The court must then determine if any facts or factors that would increase the sentence beyond the statutory maximum need to be presented to the jury and proved beyond a reasonable doubt. As a consequence, upward departures are . . . constitutional in Kansas, but they require new procedures and a jury finding.
Hill, 539 F.3d at 1215-16 (internal quotation marks, citations, and footnote omitted).
B. Federal Sentencing Guidelines
Under § 4B1.1(a) of the U.S. Sentencing Guidelines Manual (U.S.S.G.), a defendant is considered a " career offender" if, among other things, he " has at least two prior felony convictions of either a crime of violence or a controlled substance offense." The U.S.S.G. commentary later defines " [p]rior felony conviction" as " a prior adult federal or state conviction for an offense punishable by . . . imprisonment for a term exceeding one year, regardless of whether such offense is ...