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United States v. Sawyer

United States District Court, D. Kansas

January 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA R. SAWYER, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         This matter comes before the court on defendant Joshua R. Sawyer's Motion to Dismiss (Doc. 14). The government charged defendant with one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841 and 5861. Defendant now moves to dismiss the charges in the indictment, arguing his prior Kansas burglary conviction does not qualify as a felony and that the National Firearms Act as applied to short-barreled shotguns violates the Second Amendment to the United States Constitution. For the reasons discussed below, the court denies defendant's motion.

         I. Background

         On June 28, 2017 a grand jury returned a two count indictment against defendant, charging him with one count of felon in possession of a firearm and one count of possession of an unregistered firearm. In Count I of the indictment, defendant was charged with possessing a firearm after having previously been convicted of burglary in Shawnee County, Kansas District Court on January 28, 2013. The journal entry of judgment notes that defendant was convicted of burglary of a building not used as a dwelling under K.S.A. § 21-5807(a)-a severity level 7 nonperson felony. Defendant was found to have an “H” criminal history score, which, together with the severity level 7 conviction, placed him in a “presumptive probation” gridbox on the Kansas Sentencing Grid for Nondrug Offenses with a sentencing range of 12 - 14 months.

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         Defendant was ultimately sentenced to a 12-month suspended prison sentence and was granted a 24-month probation term.

         II. Analysis

         a. Count I - Felon in Possession of a Firearm

         Defendant argues that Count I of the indictment should be dismissed because he does not have a qualifying felony in his record. He claims his prior burglary conviction is not a felony because he fell within the presumptive probation range on the Kansas Sentencings Guidelines Grid and ultimately was given a probation term. Therefore, he was not convicted of a crime punishable by imprisonment for a term exceeding one year.

         Defendant was charged in Count I under 18 U.S.C. § 922(g), which makes it unlawful for any person:

who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

(emphasis added). The Tenth Circuit has found that when determining whether a state offense was punishable by a certain amount of imprisonment, “the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received.” United States v. Brooks, 751 F.3d 1204, 1213 (10th Cir. 2014). In Brooks, the Tenth Circuit overruled its prior decision in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), in which the court held that it must look to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison. Brooks, 751 F.3d at 1213. The decision to overrule Hill was based on the United States Supreme Court's decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), in which the Court rejected the “hypothetical worst recidivist” approach. In Carachuri-Rosendo, the Court found that simply because the defendant could have been subject to a sentence enhancement for a conviction which would have qualified him for deportation, the state did not seek the enhancement and, therefore, the defendant's conviction did not qualify. 560 U.S. at 582 (“The mere possibility that the defendant's conduct, coupled with facts outside of the record of conviction, could have authorized a felony conviction under federal law is insufficient to satisfy the statutory command that a noncitizen be ‘convicted of a[n] aggravated felony before he loses the opportunity to seek cancellation of removal.'”).

         The Tenth Circuit extended its Brooks rationale in United States v. Romero-Leon, 622 Fed.Appx. 712, 718 (10th Cir. 2015), finding that a defendant's prior conviction was not a “serious drug offense” for purposes of the Armed Career Criminal Act because the prosecution had not sought a sentence enhancement which would have subject the defendant to more than ten years in prison. (“[T]he prosecution was apparently required to file a pleading giving Romero-Leon notice of potential aggravating factors . . . . That did not happen here, thus we cannot say Romero-Leon faced more than a nine-year sentence in 1999. So, under Brooks, Romero-Leon's 1999 drug crimes should not have triggered enhancement under the ACCA.” (citation omitted)).

         Here, as mentioned above, defendant's Kansas burglary conviction placed him in a presumptive probation gridbox with a sentencing range of 12-14 months. Under the Kansas sentencing guidelines, the grid for nondrug crimes “defines presumptive punishments for felony convictions, subject to the sentencing court's discretion to enter a departure sentence.” K.S.A. § 21-6804(d). The sentencing court has discretion to sentence a defendant “at any place within the sentencing range.” K.S.A. § 21-6804(e)(1). And a sentencing court is not required to making findings ...


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