June 5, 2013
UNITED STATES OF AMERICA, Plaintiff,
DAMIAN L. BROOKS, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
This matter is before the Court on defendant's sentencing objection to his status as a career offender under Section 4B1.1 of the Sentencing Guidelines, U.S.S.G. § 4B1.1. In particular, defendant argues that his prior conviction for fleeing and eluding under K.S.A. § 21-6804 is not a felony because based on his recidivist record, he could not have been incarcerated for more than seven months. Defendant recognizes that the Tenth Circuit has addressed this issue and reached a contrary conclusion in United States v. Hill , 539 F.3d 1213 (10th Cir. 2008). Defendant argues that Hill is no longer good law in light of Carachuri-Rosendo v. Holder , 130 S.Ct. 2577 (2010). Indeed, two circuits have held that in light of Carachuri-Rosendo, hypothetical aggravating factors cannot be considered when determining a defendant's maximum punishment for a prior offense. See United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (prior conviction under North Carolina law not felony for purposes of enhanced statutory minimum under 21 U.S.C. § 841(b)(1)); United States v. Haltiwanger , 637 F.3d 881 (8th Cir. 2011) (prior conviction under Kansas law not felony for purposes of enhanced statutory minimum under 21 U.S.C. § 841(b)(1)).
Unless intervening Supreme Court authority is clearly irreconcilable with prior circuit court authority, a district court is bound to follow circuit precedent. Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see Thompson v. Weyerhaeuser Co. , 582 F.3d 1125 (10th Cir. 2009) (until prior circuit decision overruled by Supreme Court or by en banc court, holding is law of circuit regardless of what might have happened had other arguments been made to panel that decided issue first) (citing Cohen v. Office Depot, Inc. , 204 F.3d 1069, 1076 (11th Cir. 2000)); see also Weitz v. Lovelace Health Sys. , 214 F.3d 1175, 1180 (10th Cir. 2000) (in case of intervening Supreme Court ruling, single circuit panel permitted to reconsider prior circuit decision to extent new case law invalidates previous analysis). Defendant argues that Carachuri-Rosendo is clearly irreconcilable with Hill. While the Tenth Circuit may eventually overrule Hill based on Carachuri-Rosendo, the latter on its face is not "clearly irreconcilable" with Hill. The opinions of the five dissenters in Simmons and the one dissenter in Haltiwanger illustrate that point. The Court therefore overrules defendant's objection to his status as a career offender based on the use of his prior conviction for fleeing and eluding under K.S.A. § 21-6804.
Sentencing is set for June 17, 2013 at 2:30 p.m.
IT IS SO ORDERED.