United States v. Hisey

12 F.4th 1231

UNITED STATES of America, Plaintiff - Appellee,

v.Timothy Michael HISEY, Defendant - Appellant.

No. 20-3106

United States Court of Appeals, Tenth Circuit.

FILED September 14, 2021

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, on behalf of the Defendant-Appellant.

Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, and James A. Brown, Assistant United States Attorney, Chief, Appellate Division, with him on the brief), Topeka, Kansas, on behalf of the Plaintiff-Appellee.

Before BACHARACH, EBEL, and PHILLIPS, Circuit Judges.

BACHARACH, Circuit Judge.

In 2018, Mr. Hisey pleaded guilty to the federal offense of unlawfully possessing firearms under 18 U.S.C. § 922(g)(1). Among the elements was a prior conviction for "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). At the plea hearing, Mr. Hisey admitted that he had a prior felony conviction in Kansas.

After pleading guilty, Mr. Hisey moved to vacate his conviction under 28 U.S.C. § 2255, arguing that his guilty plea had been unknowing and involuntary. The district court dismissed the motion based on procedural default because Mr. Hisey had failed to raise this claim in his direct appeal.

We reverse, concluding that Mr. Hisey has overcome the procedural default by showing actual innocence. He did not commit the underlying offense (unlawfully possessing firearms after a felony conviction) because he had no prior conviction punishable by more than a year in prison.

I. Mr. Hisey was convicted in Kansas and obtained a mandatory punishment of probation and drug treatment.

In 2016, Mr. Hisey was convicted in Kansas of possessing controlled substances. See Kan. Stat. Ann. § 21–5706(a). Given the conviction, a Kansas state court had to determine Mr. Hisey's sentence.

For drug crimes, Kansas courts ordinarily decide the sentence by using a guideline grid. See Kan. Stat. Ann. § 21–6805. Using this grid, the court calculates a presumptive sentencing range for the crime based on

• the severity of the offense (the vertical axis) and

• the defendant's criminal-history category (the horizontal axis).

See id.

Using the grid, the sentencing court found that Mr. Hisey had an offense level of "V" and a criminal history category of "C." See Kan. Stat. Ann. § 21–5706(c)(1) ; R. vol. 1, at 15. So his presumptive sentencing range was imprisonment for 28 to 32 months. See Kan. Stat. Ann. § 21–6805(a).

SENTENCING RANGE - DRUG OFFENSES

?

But this grid doesn't dictate the sentence for every defendant. For example, a court must impose a sentence outside the grid, without any prison time, if the defendant is

• an adult Kansan who is lawfully in the United States,

• convicted of a felony under Kan. Stat. Ann. § 21–5706,

• subject to a presumptive sentencing range between V-C and V-I on the sentencing grid, and

• eligible for an off-grid sentence after two assessments for drug abuse and criminal risk.

Kan. Stat. Ann. § 21–6824(a) – (c), (h). If a defendant meets these requirements, the sentencing court must put the defendant on probation and require drug treatment instead of prison time. Kan. Stat. Ann. § 21–6824(c) ; see State v. Swazey , 51 Kan.App.2d 999, 357 P.3d 893, 897 (2015) (concluding that upon satisfaction of § 21–6824 ’s requirements, its "mandatory provisions" "control[ ]" the defendant's sentence); see also State v. Andelt , 289 Kan. 763, 217 P.3d 976, 983 (2009) (concluding that an earlier version of the statute required drug treatment for qualifying offenders).

At sentencing, the court found that under the grid, the presumptive sentencing range was 28 to 32 months. But given Mr. Hisey's satisfaction of the statutory requirements for a sentence outside the grid, the court imposed drug treatment and probation instead of imprisonment. With these terms, the court explained that a violation of the conditions would expose Mr. Hisey to possible revocation of probation and a prison term of 30 months.

II. In federal court, Mr. Hisey pleaded guilty to possessing firearms after a felony conviction.

Mr. Hisey was later charged with unlawfully possessing firearms on July 17, 2017. According to the government, the possession was unlawful because Mr. Hisey had been convicted of a crime punishable by imprisonment for longer than a year. 18 U.S.C. § 922(g)(1). For this charge, the government relied on the Kansas conviction for possessing controlled substances. Mr. Hisey pleaded guilty to unlawful possession of firearms, and the court imposed a judgment of conviction.

III. Mr. Hisey can overcome procedural default by showing actual innocence.

In moving to vacate the conviction, Mr. Hisey challenges his guilty plea, arguing that it was unknowing and involuntary. Generally, a defendant may collaterally attack a guilty plea as unknowing and involuntary only if he had challenged the plea through a direct appeal; otherwise, the challenge is ordinarily subject to procedural default. Bousley v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Mr. Hisey did not challenge his guilty plea on direct appeal, so his claim would ordinarily be subject to procedural default.

But a defendant challenging the validity of a guilty plea can overcome a procedural default by showing actual innocence. Id. at 622, 118 S.Ct. 1604. Mr. Hisey argues that he is actually innocent. To prevail on this argument, Mr. Hisey must show 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, 502 (10th Cir. 1998) (quoting Bousley , 523 U.S. at 623, 118 S.Ct. 1604 ).

IV. Mr. Hisey is actually innocent because his Kansas conviction was not for a crime punishable by more than one year in prison.

In this case, actual innocence turns on whether the Kansas conviction was punishable by over a year in prison. 18 U.S.C. § 922(g)(1) ; see pp. 1233–34, above. To answer this question, we consider

• what the term "punishable" means and what the pertinent time-period is,

• whether we consider potential punishment for a hypothetical defendant or for Mr. Hisey in particular, and

• what information we can consult to determine Mr. Hisey's potential term of imprisonment on his Kansas conviction when he possessed the firearms.

A. We consider whether the drug crime exposed Mr. Hisey to more than a year in prison when he possessed the firearms.

The question is whether Mr. Hisey's drug crime was "punishable" by over a year in prison. The term "punishable" means "capable of being punished by law or right." See Schrader v. Holder , 704 F.3d 980, 986 (D.C. Cir. 2013) (quoting Webster's Third New International Dictionary 1843 (1993)); see also id. (stating that "the commonsense meaning of the term ‘punishable’ " is "any punishment capable of being imposed").

So we consider whether the drug crime could have subjected Mr. Hisey to imprisonment for over a year. To answer that question, we apply Kansas's sentencing law. See United States v. Oman , 91 F.3d 1320, 1321 (9th Cir. 1996) ("The term ‘crime[ ] punishable’ [in 18 U.S.C. § 922(g)(1) ] refers to crimes defined by the law of the jurisdiction in which the predicate crime arose."). In applying Kansas law, we focus on the moment that Mr. Hisey possessed the firearms. See United States v. Benton , 988 F.3d 1231, 1232 (10th Cir. 2021) (stating that 18 U.S.C. § 922(g) applies only if the defendant had knowledge of the relevant status when he or she possessed the firearm).

B. We consider the possibility of a prison term of more than one year for Mr. Hisey, not a hypothetical defendant.

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, 1213 (10th Cir. 2014). So we consider whether Mr. Hisey's drug conviction—rather than the conviction of a hypothetical defendant—could have triggered imprisonment for over a year when he possessed the firearms.

C. In determining the possible prison term for Mr. Hisey when he possessed the firearms, we confine ourselves to his record of conviction.

To determine whether Mr. Hisey could have been imprisoned for more than a year when he possessed the firearms, we consider only his "record of conviction." United States v. Brooks , 751 F.3d 1204, 1208 (10th Cir. 2014) (quoting Carachuri-Rosendo v. Holder , 560 U.S. 563, 577 n.12, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) ). "The mere possibility" of other facts "outside the record" will not change the maximum prison term. See Carachuri-Rosendo , 560 U.S. at 582, 130 S.Ct. 2577 (interpreting the Immigration and Nationality Act).

D. Mr. Hisey is actually innocent.

The Kansas sentencing court determined that Mr. Hisey had satisfied all of the requirements for probation and drug treatment in lieu of imprisonment. So the district court had to impose probation and drug treatment. See Kan. Stat. Ann § 21–6824 ; State v. Swazey , 51 Kan.App.2d 999, 357 P.3d 893, 897 (2015).

Given the lack of discretion, the Kansas court could not sentence Mr. Hisey to imprisonment. So for this "particular defendant," the past conviction was not punishable by any prison time. Brooks , 751 F.3d at 1213. Because Mr. Hisey's past conviction had not been punishable with any prison time, possession of firearms didn't constitute a crime under 18 U.S.C. § 922(g)(1). See United States v. Williams , 5 F.4th 973, 975 (9th Cir. 2021) (concluding that a state crime is not punishable by imprisonment for over a year "when the statutory maximum sentence exceeds one year but the maximum sentence allowed under the State's mandatory sentencing guidelines does not"); United States v. Haltiwanger , 637 F.3d 881, 883–84 (8th Cir. 2011) (holding that a defendant's prior drug crime in Kansas didn't constitute a felony because his maximum sentence was limited to seven months’ imprisonment even though offenders with...