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United States v. Nichols

United States District Court, D. Kansas

January 16, 2018

BRUCE MAYO NICHOLS, II (01), Defendant.


          Daniel D. Crabtree United States District Judge

         This 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.

         I. Background

         On 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[1] 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, [2] 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.

         Almost 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.

         II. Analysis

         Mr. 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.

         A. Kansas State Court Sentencing in 2013 [3]

         In 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, 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.

         Figure 1

(Image Omitted.)

         This 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.

         Each 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 sentencing range.”).

         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.

         Kansas 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.

         In 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).

         Unless 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).

         In Mr. 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 2-3.

         B. Sentence of Imprisonment Exceeding One Year and Presumptive Probation

         Mr. 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. Kan. 2008).

         In 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)).

         Judge 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 prison. Id.

         While 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.[4] But as explained ...

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