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Tenth Circuit: Where Defendant Actually Sentenced to Drug Treatment and Probation Rather Than 28-32 Months in Prison as Per State Sentencing Guidelines, Conviction Can’t Serve as Predicate ‘Felony’ for 18 U.S.C. § 922(g)(1)

by Dale Chappell

The U.S. Court of Appeals for the Tenth Circuit held that defendant’s sentence for a drug conviction under Kansas law, for which the maximum potential term of imprisonment was 32 months, to a drug treatment program and probation, in lieu of prison, did not render that conviction a felony for purposes of felon-in-possession of a firearm under federal law—18 U.S.C. § 922(g)(1).

Back in 2016, Timothy Hisey was convicted in a Kansas state court of possessing drugs. Under the state sentencing guideline grid for drug crimes, his presumptive sentencing range was 28 to 32 months in prison. See Kan. Stat. Ann. §§ 21-5706(a), 21-6805(a). However, Hisey met all the requirements for an outside the grid sentence, without any prison time. § 21-6824(a)-(c), (h). By law, if a defendant meets the foregoing statutory requirements, the sentencing court is required to put the defendant on probation and mandatory drug treatment in lieu of prison time. § 21-6824(c); see State v. Swazey, 357 P.3d 893 (Kan. Ct. App. 2015). The court sentenced him to drug treatment and probation rather than prison time. He faced a prison term of 30 months if he violated the terms of his probation.

A year later, Hisey was charged with being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1), because his prior Kansas drug conviction was “punishable” by more than a year, making it a felony, even though he didn’t serve any prison time nor could he since he met the statutory requirements for outside the grid sentencing. He pleaded guilty, and the court imposed a judgment of conviction. He didn’t challenge his guilty plea on direct appeal.

Hisey timely filed a motion to vacate his conviction under 28 U.S.C. § 2255. Ordinarily, his claim would be subject to procedural default since he hadn’t challenged his plea through a direct appeal. Bousley v. United States, 523 U.S. 614 (1998). However, he was claiming actual innocence because his conviction was not punishable by over a year in prison as required for a violation of § 922(g). A showing of actual innocence can overcome a procedural default. Id. For Hisey to prevail on this issue, he must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” United States v. Powell, 159 F.3d 500 (10th Cir. 1998) (quoting Bousley).

The Court stated that the determinative issue in resolving the case is whether Hisey’s Kansas drug offense was “punishable” by more than a year in prison, so the Court analyzed whether his offense could have subjected him to a prison sentence of over a year, which necessarily requires an examination of Kansas’ sentencing law. See United States v. Oman, 91 F.3d 1320 (9th Cir. 1996) (punishable under § 922(g) “refers to crimes defined by the law of the jurisdiction in which the predicate crime arose”).

The Court explained that the critical time is the moment Hisey possessed the firearms because § 922(g) only applies if he had knowledge of his relevant (prohibited) status at the time he actually possessed them. See United States v. Benton, 988 F.3d 1231 (10th Cir. 2021). The Court further explained that a crime is punishable by “the maximum amount of prison time a particular defendant could have received,” United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014), not some hypothetical defendant who could have been subject to imprisonment for more than a year when he possessed them. Finally, in determining whether he could have been imprisoned for over a year when he possessed them, only his “record of conviction” is considered, the Court explained. Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).  

The Court concluded that Hisey is actually innocent. Since he satisfied the statutory requirements for probation and drug treatment instead of prison time, the Kansas court had no discretion in imposing the sentence that it did and could not have sentenced him to prison. See Kan. Stat. Ann. § 21-6824. Consequently, this “particular defendant” was not subject to any prison time for his prior conviction. Brooks. Thus, the Court ruled that because Hisey had not been subjected to prison time for his prior conviction, “possession of firearms didn’t constitute a crime under” § 922(g). See United States v. Williams, 5 F.4th 973 (9th Cir. 2021) (a state crime is not punishable by imprisonment for more than a year “when the statutory maximum sentence exceeds one year but the maximum sentence allowed under the State’s mandatory sentencing guidelines does not”).

The Court then addressed the Government’s principal arguments for why § 922(g) applies. First, the Government argued that the presumptive sentencing range of 28 to 32 months governs the determination of applicability, not the provisions providing for drug treatment and probation. The Court flatly rejected that notion, explaining that the determinative factor is what this “particular defendant” could have been sentenced to, which didn’t include the potential for any prison time because he qualified for outside the grid sentencing. Brooks; see United States v. McAdory, 935 F.3d 838 (9th Cir. 2019) (state conviction didn’t trigger § 922(g)(1) because state’s mandatory minimum guidelines hadn’t actually exposed defendant to more than a year in prison).

The Government also argued that Hisey’s suspended sentence of 30 months’ imprisonment constituted a conviction punishable by more than a year in prison. Again, the Court made quick work of this argument, stating that under Kansas law even if he did violate his probation conditions, a court wouldn’t revoke probation immediately; instead, the court would typically start with a sanction less severe than revocation such as modification of conditions and 2-3 days of confinement. Kan. Stat. Ann. § 22-3716(b)(2). The Court explained that even if Hisey were to have violated his probation conditions, “imprisonment for more than one year would require the combination of numerous contingencies.” Since none of the contingencies materialized by the date he possessed the firearms, Kansas could not have imposed any prison time, and he could not have violated § 922(g)(1) on that date. Thus, the Court ruled that no reasonable juror could find Hisey guilty of violating § 922(g)(1).

Accordingly, the Court reversed the denial of Hisey’s § 2255 motion and remanded for the district court to address his motion on the merits. See: United States v. Hisey, 12 F.4th 1231 (10th Cir. 2021).  

Writer’s note: On remand, the district court granted Hisey’s § 2255 motion and vacated his conviction. United States v. Hisey, 2021 U.S. Dist. LEXIS 236541 (D. Kan. Dec. 10, 2021). The court also dismissed the indictment upon the Government’s request. District Judge Daniel Crabtree plainly stated in his order granting relief, “The Court must vacate Mr. Hisey’s criminal conviction because he isn’t guilty of the predicate offense required for a conviction as felon in possession of a firearm.” Unfortunately, Hisey spent several years in prison because of this error.

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Related legal cases

United States v. Williams

United States v. Benton

United States v. Hisey

United States v. McAdory

State v. Swazey

United States v. Oman



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