United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
This case comes before the Court on Defendant Robert Jason Keegan's objection to application of United States Sentencing Guideline § 2K2.1(a)(2) for having "committed any part of the instant offense subsequent to sustaining at least two felony convictions for either a crime of violence or a controlled substance offense." Application of this guideline raised Defendant's base offense level from a level 20 to a level 24. While it is undisputed that one of Defendant's prior convictions for criminal use of weapons was a qualifying felony conviction, Defendant argues that his other prior conviction for criminal use of weapons was not a felony conviction. The Court heard oral argument during a sentencing hearing on October 28, 2013. At the hearing, the parties were given until November 1, 2013 to provide additional legal authority. The objection is now fully briefed and the Court is prepared to rule. As described more fully below, the Court overrules Defendant's objection.
On August 9, 2011, Defendant was convicted of "Criminal Use of Weapons (Sawed-Off Shotgun)" in Kansas state court. According to Kansas law, Defendant's firearm conviction was designated as a felony. Under the Kansas statutory scheme, "The determination of a felony sentence is based on two factors: the current crime of conviction and the offender's prior criminal history." Based on Defendant's criminal history, he was subject to a presumptive sentence of 7 to 9 months' imprisonment. Defendant initially received a suspended sentence of 8 months' imprisonment and 12 months' probation for his Kansas conviction. After having his probation revoked, the original sentence of 8 months was imposed.
On March 25, 2013, Defendant pleaded guilty before this Court to one count of unlawful use of a controlled substance while possessing a firearm in violation of 18 U.S.C. § 922(g)(3) and 18 U.S.C. § 924(a)(2). The United States Probation Office ("Probation") calculated Defendant's total offense level as 24 and his criminal history category as IV under the Guidelines. Thus, Defendant's sentencing range under the Guidelines was 70-87 months. Probation applied a sentencing enhancement under § 2K2.1(a)(2) based on his prior felony convictions under Kansas law. This enhancement raised Defendant's offense level from 20 to 24.
Defendant argues that his August 9, 2011 state firearms conviction is not a felony crime of violence. Defendant points to the Kansas sentencing scheme, a system of mandatory sentencing guidelines, whereby a defendant's sentence is based on application of a two-dimensional grid. One axis of the grid is based on the "crime severity scale which classifies current crimes of conviction;" the other axis is "the criminal history scale which classifies criminal histories." The criminal history scale of classification is in turn based on an offender's "criminal history score, " which is comprised of the offender's "criminal record of adult felony, class A misdemeanor, class B person misdemeanor or select misdemeanor convictions and comparable juvenile adjudications at the time such offender is sentenced." The crime severity scale of Defendant's offense of conviction was "Severity Level IX" and his criminal history classification was G, which rendered a sentencing range of 7 to 9 months under the Kansas Sentencing Guidelines. The state judge imposed a sentence of eight months.
A. Felony under Kansas law
Because the Kansas guideline system is mandatory, and because under that system he could not be sentenced to more than 9 months based on his individual circumstances, Defendant argues that the conviction is not a "felony conviction" within the meaning of § 2K2.1(a)(2). As discussed below, the meaning of "felony conviction" under § 2K2.1(a)(2) is not at all dependent on the length of the sentence received or served for the state conviction. Moreover, even if this was a misdemeanor under Kansas law, the Court wholly rejects Defendant's argument that the state's classification of the offense as a felony or misdemeanor controls for purposes of applying § 2K2.1(a)(2).
Defendant's state conviction for Criminal Use of Weapons (sawed off shotgun) is a felony under Kansas statutes and Kansas Sentencing Guidelines. Defendant argues that Kansas law does not expressly classify crimes as felonies or misdemeanors, such that the actual sentence imposed under the Kansas Sentencing Guidelines is determinative of the classification. So, Defendant argues, because he could not have received a sentence in excess of 9 months, the offense was not a felony crime under Kansas law, as applied to him.
There are multiple references in the Kansas statutes and Kansas Sentencing Guidelines to offense classifications. Indeed, the Kansas statutes define a felony crime as "punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law." And, the Kansas Sentencing Guidelines grid is specifically and expressly for felonies,  while the classification and terms of confinement for misdemeanors is governed by a separate statute. The actual sentence received, or the maximum sentence available is simply immaterial, for under the Kansas Sentencing Guidelines grid, some "nondrug" felonies are categorized as presumptive prison, and some are categorized as presumptive nonprison.
Moreover, Defendant was convicted of an offense that is in fact defined as a felony by law. Criminal Use of Weapons (Sawed-Off Shotgun) is an offense pursuant to K.S.A. 21-6301(a)(5), which provides in pertinent part, "Criminal use of weapons is knowingly: (5) selling, manufacturing, purchasing or possessing a shotgun with a barrel less than 18 inches in length." This crime is classified as a "severity level 9, nonperson felony." For these reasons, even if the application of U.S.S.G. § 2K2.1(a)(2) was dependent on the classification of the offense under state law, the § 2K2.1(a)(2) enhancement is appropriately applied in this case because Defendant's conviction was a felony offense.
B. U.S.S.G. § 2K2.1(a)(2) enhancement is proper.
In any event, whether Defendant's prior conviction is a qualifying felony under § 2K2.1(a)(2) depends on construction of that guideline. Thus, the Court begins, as it must, with the plain language of U.S.S.G. § 2K2.1(a)(2), which raises the base offense level to 24 if the defendant "committed any part of the instant offense subsequent to sustaining at least two felony convictions for either a crime of violence or a controlled substance offense." Commentary in the Sentencing Guidelines manual is authoritative unless it violates the Constitution, federal statutes or results in a plainly erroneous interpretation of the guideline. Courts "can presume that the interpretations of the guidelines contained in the commentary represent ...