United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
In September of 2005, the court sentenced Ms. Wetzel-Sanders to 151 months for bank robbery. The sentence represented the bottom of sentencing guideline range calculated under the applicable career offender guidelines. (Dk. 30). Though she took no appeal from the judgment of conviction and sentence entered in October of 2005, Ms. Wetzel-Sanders has filed several pro se post-conviction motions beginning in late 2009, and all of these motions have been denied. (Dk. 33-42).
The parties filed a joint motion pursuant to 28 U.S.C. § 2255 (Dk. 45) to vacate the defendant Wetzel-Sanders' sentence. The parties contend the Tenth Circuit's recent decision, United States v. Brooks, 751 F.3d 1204, 1205-06 (10th Cir. 2014), establishes that the defendant's May 30, 2000, Kansas conviction for criminal threat is not a felony as defined by the United States Sentencing Guidelines as an "offense under federal or state law, punishable by imprisonment for a term exceeding one year." U.S.S.G. § 4B1.2(a). The parties conclude this court in relying on this state conviction as a felony under U.S.S.G. §§ 4B1.1 and 4B1.2(a) incorrectly sentenced the defendant as a career offender. The parties ask the court to vacate the sentence on this ground.
Concerning Ms. Wetzel-Sander's prior Kansas conviction, the parties attach as an exhibit the Shawnee County District Court of Kansas journal entry of judgment. It shows she pled guilty to the offense on April 12, 2000, and was sentenced on May 26, 2000. (Dk. 45-1, p. 1). It also states that the severity level for her offense was nine, her criminal history classification was H, and the sentencing range was eight to six months within the particular grid box. Id. The Kansas sentencing range is 5 to 17 months for an offense with a severity level of eight.
The attorneys filing this joint motion are also the attorneys who have filed a similar joint motion in the case of United States v. Joseph V. Mulay, No. 01-40033-01-SAC. Like Mr. Mulay, Ms. Wetzel-Sanders was convicted and sentenced prior to June 26, 2000, which is the retroactive application date of Apprendi by the Kansas Supreme Court in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and prior to June 6, 2002, which is the date that Kansas implemented its new sentencing scheme discussed and applied by the Tenth Circuit in United States v. Plakio, 433 F.3d 692, 695 (10th Cir. 2005); United States v. Hill, 539 F.3d 1213, 1215 (10th Cir. 2008); and most importantly, United States v. Brooks, 751 F.3d at 1206.
When it received the parties' joint motion to vacate pursuant to 28 U.S.C. § 2225 in Mulay, the court requested the parties to brief the application of United States v. Brooks, 751 F.3d at 1205-06, on a circumstance not addressed in their motion. Namely, Mr. Mulay's criminal threat conviction and sentence occurred in 1995 before the Kansas Sentencing Guideline scheme adopted in June of 2002 that was discussed in Brooks as the "unusual criminal sentencing scheme [that] lies at the heart of the current dispute, " 751 F.3d at 1205. The parties filed a joint brief in Mulay taking the position that the holding and rationale in Brooks does "not turn on the date of the prior conviction" and that "there is no material difference between the Kansas sentencing scheme applicable in 1995 and the Kansas sentencing scheme applicable in 2002." The parties' filing did not address in any detail the Tenth Circuit precedent leading up to Brooks. Nor did it provide any explanation or construction of Brooks that incorporates the panel's opening statement about Kansas's "unusual" sentencing scheme. Presumably, counsel here would make the same arguments they made in Mr. Mulay's case in asserting that the date of the Kansas conviction is not significant in applying Brooks. Thus, the court will republish the balance of its legal analysis from its order filed under seal in Mr. Mulay's case.
Despite the parties' position that the date of the defendant's Kansas conviction is not significant in applying Brooks, the Tenth Circuit's decision indicates otherwise. It quotes how Kansas's adoption of a sentencing scheme in June 6, 2002, involved "new sentencing provisions" that "eradicate[d] the trial court's discretion to sentence a defendant to an upward departure." 751 F.3d at 1205-06. It expressly fixes its holding within the parameters of "Kansas's rather unusual criminal sentencing scheme [that] lies at the heart of the current dispute." 751 F.3d at 1205-06. Should we expect that a court would open with such points about a unique sentencing scheme and the date of its adoption and not have a reason for doing so? On its face, the Brooks decision stands for an interpretation and application of the unusual sentencing scheme adopted in Kansas in June of 2002. The parties do not present any tenable arguments for construing Brooks as reaching back to an earlier sentencing scheme. The court believes this reading of Brooks is consistent not only with the Tenth Circuit decisions leading up to Brooks but also with the holding in Brooks.
The court will lay out that line of precedent below, but on this point, it is notable that the parties do mention in a footnote only one of those precedent, United States v. Norris, 319 F.3d 1278 (10th Cir. 2003). (Dk. 105, p. 4, n.1).The parties presume Brooks to have overruled some part of Norris. Id. It is certainly true that the panel in Brooks found the Supreme Court's intervening decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), to have analysis that "contradicts and invalidates" the Tenth Circuit's analysis in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008). 751 F.3d at 1210. The Brooks panel, however, did not discuss any other Tenth Circuit precedent other than United States v. Plakio, 433 F.3d 692 (10th Cir. 2005). Hill had overruled Plakio, 539 F.3d at 1219-20, and Brooks now overrules Hill and "reverts back" to Plakio, 751 F.3d at 1211. The decision in Brooks does not mention Tenth Circuit precedent that had interpreted and applied the Kansas sentencing scheme before June of 2002. It was not asked to and did not directly consider the precedential force of that Tenth Circuit precedent which arguably undergirds Plakio. Thus, the court will take a close look at Tenth Circuit precedent and an even closer look at the rationale in Brooks.
TENTH CIRCUIT PRECEDENT
At the time when the defendant could have taken a direct appeal, the Tenth Circuit had settled this issue regarding the effect of Kansas's presumptive guideline sentencing scheme on the determination of whether a Kansas offense of conviction was punishable in excess of one year. See United States v. Arnold, 113 F.3d 1146, 1148 (10th Cir. 1997). The panel in Arnold wrote:
Appellant's prior conviction was for criminal possession of a firearm in violation of Kan. Stat. Ann. § 21-4204, for which he received a sentence of 11 months imprisonment. Under Kansas' sentencing scheme, appellant's conviction amounted to a severity level of eight. See Kan. Stat. Ann. § 21-4204(d) (1994 Supp.). As such, the maximum punishment was 23 months. See Id. § 21-4704(a) (1994 Supp.).
Appellant acknowledges that the crime for which he was convicted carried a maximum possible punishment of 23 months. He argues, however, that the sentencing court could actually only have given him a maximum sentence of 11 months when it took into account his limited criminal history, as it was required to do under Kansas law. See Kan.Stat.Ann. § 21-4704.
The appellant's argument fails because the Kansas state trial judge possessed the power to depart upward from the presumptive sentence based on aggravating factors.FN1 See Kan.Stat.Ann. § 21-4716(b)(2) (1994 Supp.); United States v. Minnick, 949 F.2d 8, 9-10 (1st Cir.1991) (holding that despite New Jersey statutory presumption against imprisonment for the crime in question, it qualified as "punishable by imprisonment for a term exceeding one year" since the sentencing court had discretion under certain circumstances to impose a term of incarceration exceeding one year); United States v. Currier, 821 F.2d 52, 58 (1st Cir.1987).
FN1. Consideration of aggravating factors is discretionary with the trial judge, and the list of factors is expressly nonexclusive. Kan.Stat.Ann. § 21-4716(b)(2) (1994 Supp.). As a consequence, until actual imposition of sentence, appellant could not predict whether his sentence would exceed one year.
Appellant attempts to rewrite 18 U.S.C. § 922(g)(1) by converting the word "punishable" into "punished." What matters is not the actual sentence which the appellant received, but the maximum possible sentence. See Currier, 821 F.2d at 58; Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113, 103 S.Ct. 986, 992, 74 L.Ed.2d 845 (1983) (finding it irrelevant whether the individual in question actually receives prison term when statute imposes disabilities on those previously convicted of crimes punishable by imprisonment for a term exceeding one year); see also United States v. Place, 561 F.2d 213, 215 (10th Cir.1977) (holding that defendant's actual sentence of only one year was irrelevant to question of whether court could have imposed longer sentence). This reflects the clear language of the statute, which imposes criminal liability on offenders who have previously been convicted of "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g) (emphasis added).
This court thus rejects the appellant's argument as to this first issue.
113 F.3d at 1148. Thus, the Tenth Circuit in Arnold recognized that the statutory "possibility of upward departures qualified Kansas offenses as crimes punishable by more than a year's imprisonment even where the maximum presumptive sentence [under Kansas sentencing guidelines] was less than a year." United States v. Thomas, 171 Fed.Appx. 250, 252, 2006 WL 679842 at *1 (10th Cir. Mar. 17, 2006). This very same proposition was ...