United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendant Bruce Mayo
Nichols, II's Motion to Dismiss Count I of the Indictment
(Doc. 19). In his motion, Mr. Nichols asserts that he never
sustained a conviction punishable by more than one year in
prison. So, he contends, he could not violate 18 U.S.C.
§ 922(g)(1)-a federal statute forbidding a convicted
felon from possessing a firearm. See Doc. 1 at 1.
Mr. Nichols thus asks the court to dismiss the Indictment.
While the motion presents an intriguing and close question,
the court concludes that the balance of authorities favors
the government's side of the question. The court thus
denies Mr. Nichols's Motion to Dismiss.
February 8, 2017, the grand jury returned a one-count
Indictment (Doc. 1) against defendant Bruce Mayo Nichols, II.
It charges that Mr. Nichols is a convicted felon who, on
November 29, 2016, possessed a firearm in and affecting
commerce, which had been shipped and transported in
interstate or foreign commerce in violation of §
922(g)(1). Doc. 1 at 2. This charge relies on Mr.
Nichols's 2013 conviction in Kansas state court.
Id. at 1. More specifically, the Indictment asserts
that the District Court of Shawnee County, Kansas convicted
Mr. Nichols of aggravated battery on January 24, 2013, in
violation of Kan. Stat. Ann. § 21-5413(b). Mr.
Nichols's motion concedes this conviction, a product of
an Alford plea. Based on the Kansas sentencing
guidelines, this 2013 conviction carried a severity level of
VII and Mr. Nichols had a category I criminal history. On the
Kansas Sentencing Grid for Nondrug Offenses,  reproduced below
in Figure 1, Mr. Nichols's sentencing range was 11 to 13
months in prison with a presumptive disposition of a
probation sentence. On January 24, 2013, the Kansas court
sentenced Mr. Nichols. His sentence did not depart from the
presumptive disposition and so he received 24 months'
probation with an underlying 12-month term of imprisonment.
four years later, on November 29, 2016, two officers in the
Topeka Police Department stopped Mr. Nichols for an alleged
traffic violation. During that traffic stop, officers
testified that they searched the vehicle Mr. Nichols was
driving and found two firearms in it.
Nichols asserts that he could not have violated 18 U.S.C.
§ 922(g)(1) because his January 24, 2013 conviction was
not punishable by more than one year in prison. He makes this
assertion because the presumptive disposition of his sentence
for that conviction was probation- and because he actually
received a probation sentence. To place this argument in
context, the court begins by reviewing the sentencing
procedure used by Kansas state courts in 2013.
Kansas State Court Sentencing in 2013 
2013, Kansas courts used two grids to sentence persons
convicted of felonies: one grid for drug offenses and the
other for nondrug offenses. Kan. Sentencing Comm'n, Kan.
Sentencing Guidelines Desk Reference Manual (2013),
available at www.sentencing.ks.gov, 24. The grid
used in Mr. Nichols's 2013 sentencing was the one for
nondrug offenses. Figure 1 reproduces that grid-tiny
font-size and all-in its entirety.
grid used two distinct axes: one expresses the
conviction's severity level (vertical axis) and another
one expresses the defendant's criminal history category
(horizontal axis). Id. at 25. Kansas law assigned a
severity level to almost all Kansas felony offenses.
Likewise, all defendants fell into a criminal history
category, a classification depending largely on the quantity
and severity of a defendant's prior convictions.
See Kan. Stat. Ann. § 21-6809. Determining Mr.
Nichols's sentence under this grid required the
sentencing judge to match his severity level to his criminal
history category. When convicted on January 24, 2013, Mr.
Nichols had a criminal history category I-the lowest level,
found on the far right edge of the horizontal axis- and his
2013 conviction carried a severity level of VII on the
vertical axis. The box located at the confluence of these
data points was the I-VII grid box. See Figure 1.
box on this sentencing grid contained three numbers. They
represented the presumed months of imprisonment for a
defendant who had committed an offense of that severity level
and criminal history. The higher number-the one in the top
left corner of each box-was called the aggravated sentence.
The lower number-the one in the bottom right corner-was
called the mitigated sentence. And the middle number-in the
center of each box-was the standard sentence. The grid box
for Mr. Nichols's 2013 conviction prescribed an
aggravated sentence level of 13 months, a mitigated sentence
of 11 months, and a standard sentence of 12 months. And
Kansas law allowed the judge who sentenced Mr. Nichols to
choose any one of these three numbers. See Kan.
Stat. Ann. § 21-6604(e)(1) (conferring on the sentencing
court “discretion to sentence at any place within the
grid also used three types of shading to reflect the presumed
disposition of the case: one identified Presumptive Probation
sentences; one identified Presumptive Prison sentences; and a
third that the grid referred to as “Border
Boxes.” When the severity level and criminal history
category of a defendant's conviction lined up in the
Presumptive Imprisonment category, the presumptive sentence
was a term of imprisonment. Likewise, when a defendant's
sentence fell in the Presumptive Probation category, the
presumed sentence was probation. And the sentence for a
defendant who fell in a Border Box had no presumptive
disposition. The grid box for Mr. Nichols's 2013
conviction carried a presumptive disposition of probation.
law authorized sentencing judges to depart from the sentence
endorsed by the applicable grid box in two ways. First, a
Kansas judge could use a durational departure to impose a
longer or shorter sentence than the one recommended by the
applicable box. Kan. Stat. Ann. § 21-6818(b). Second, a
judge could impose a dispositional departure. This kind of
departure did not change the length of the sentence; instead,
it changed the recommended sentence from prison to
probation-or vice-versa. Id. § 21-6803(g).
Because the grid box that applied to Mr. Nichols's 2013
conviction provided for a Presumptive Probation sentence,
sending Mr. Nichols to prison would have required the
sentencing judge to apply a dispositional departure.
2013, Kansas judges could depart from the presumptive
sentence only if specific circumstances existed. See
Id. § 21-6815(a) (“[T]he sentencing judge
shall impose the presumptive sentence provided by
the sentencing guidelines unless the judge finds substantial
and compelling reasons to impose a departure sentence.”
(emphasis added)). A Kansas prosecutor who wanted the court
to impose a harsher sentence than the presumptive one had to
file a motion requesting a departure. Id. §
21-6817(a)(1). The statute governing such a motion required
it to specify the “type of departure sought and the
reasons and factors relied on” for the request.
Id. And while the sentencing judge could signal an
intent to depart even if neither party requested a departure,
Kansas law likewise required the judge to announce the nature
of the putative departure and the reasons supporting it.
Id. § 21-6817(a)(3). Finally, Kansas law
required the sentencing judge to provide this notice early
enough to give the parties “a fair opportunity to
marshal and present . . . arguments for or against the
proposed departure . . . .” State v. Martinez,
165 P.3d 1050, 1059 (Kan.Ct.App. 2007) (citation omitted).
permitted explicitly by some other statute, a court could
impose a departure sentence only if it found
“substantial and compelling reasons” to do so.
Id. To depart upward in favor of a harsher sentence,
the court first had to find an “aggravating
factor”-that is, a “substantial and compelling
reason justifying an exceptional sentence . . . .” Kan.
Stat. Ann. § 21-6803(a). Also, Kansas law required the
court to specify this aggravating factor on the record,
id., and record evidence had to support the
aggravating factor announced. Id. § 21-6815(d).
Nichols's 2013 case, the prosecutor filed no motion
requesting a departure and the court did not signal an intent
to depart on its own motion. Predictably, Mr. Nichols's
actual sentence did not depart from the presumptive sentence
endorsed by the sentencing grid- probation. Specifically, the
Kansas court sentenced Mr. Nichols to 24 months'
probation with an underlying 12-month term of imprisonment
should he violate the terms of his probation. Doc. 20-1 at
Sentence of Imprisonment Exceeding One Year and Presumptive
Nichols's arguments contend that the maximum sentence he
could have received was Presumptive Probation and, thus, his
2013 conviction cannot possibly supply the predicate felony
required to support a conviction under § 922(g)(1). A
2008 decision by our court squarely rejects this thesis.
See United States v. Wattree, 544 F.Supp.2d 1262 (D.
Wattree, the defendant moved to dismiss a charge
under § 922(g)(1). 544 F.Supp.2d at 1263. He argued-as
Mr. Nichols argues here-that his 2000 Kansas conviction for
burglary was not a predicate felony because the applicable
Kansas sentencing grid box called for Presumptive Probation.
Id. at 1270. The Wattree defendant was
situated at precisely the same level as Mr. Nichols: his
criminal history scored as a Level I and the severity level
for his offense of conviction was VII. Id. Judge
Lungstrum's opinion in Wattree explained how the
Kansas sentencing grid in effect in 2000 viewed the
defendant. “The corresponding [grid] box on the
sentencing table grid show[ed] an imprisonment range from
eleven to thirteen months. The box also [was] located under
the disposition line, indicating that there [was] a
presumptive disposition of nonimprisonment, or in other
words, presumptive probation.” Id. (citing
Kan. Stat. Ann. § 21-4704(a)).
Lungstrum was not persuaded by the defendant's argument
that his earlier conviction was not punishable by more than
one year in prison and so Judge Lungstrum rejected his motion
to dismiss. Judge Lungstrum's order explained that it was
“the presumptive durational sentencing range and not
the presumptive disposition [that] is determinative of
whether a crime is punishable by more than a year” in
not duty bound to reach the same conclusion as
Wattree, the court views Judge Lungstrum's order
as highly persuasive authority. Absent some intervening
change in law, the court would follow it and overrule Mr.
Nichols's motion. On close review, the court concludes
that much has changed with federal precedent since
Wattree was decided in 2008. But as explained ...