U.S. v. Norris, No. 02-3047.
| Decision Date | 19 February 2003 |
| Docket Number | No. 02-3047. |
| Citation | 319 F.3d 1278 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald E. NORRIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles D. Dedmon, First Assistant Federal Public Defender, Kansas City, KS, for Defendant-Appellant.
Nancy Landis Caplinger, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Topeka, KS, for Plaintiff-Appellee.
Before KELLY, Circuit Judge and BRORBY, Senior Circuit Judge and OBERDORFER,* District Judge.
Defendant-Appellant Donald E. Norris pleaded guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). In so doing, Mr. Norris reserved his right to appeal the district court's order denying his motion to dismiss his indictment for lack of a qualifying conviction. Following his guilty plea, the district court sentenced Mr. Norris to 41 months of imprisonment followed by a three-year term of supervised release. On appeal, Mr. Norris claims that the district court erred in denying his motion to dismiss. Additionally, Mr. Norris contends that the district court erred in calculating his criminal history category and that it mistakenly applied a four-level enhancement to his base offense level for possessing a firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(5). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
In August of 2000, Kansas City, Kansas police officers ("the officers") responded to a report of shots fired near Mr. Norris' residence. Upon arriving at the scene, a neighbor informed the officers that he observed Mr. Norris fire a handgun several times before leaving in his automobile. While the officers were still at the scene, Mr. Norris returned to his residence and was promptly taken into custody for outstanding warrants. In a statement to the officers, a passenger in Mr. Norris' vehicle reported that Mr. Norris had fired the gun at an unknown individual who ran behind his residence. Further investigation resulted in the recovery of several shell casing from the ground and a semi-automatic handgun from under the passenger seat of Mr. Norris' vehicle.
Mr. Norris thereafter was charged in federal court with violating 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a person who has been convicted of a crime punishable by a term of imprisonment exceeding one year. The indictment was predicated upon two prior state-court theft convictions — one in February of 1999, and the other in September of 1999 — which were, according to the indictment, punishable by more than one year of imprisonment under Kansas law then in effect. I R. Doc. 1 at 1. Mr. Norris filed a motion to dismiss the indictment on the ground that the two convictions were not for crimes punishable by more than one year. Specifically, Mr. Norris argued that because the maximum presumptive sentences for his February and September convictions were seven and nine months respectively, and because the Kansas Supreme Court in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), held unconstitutional the portion of the Kansas Sentencing Guidelines Act authorizing upward departures, his prior convictions were not qualifying convictions under § 922(g)(1). I R. Doc. 13 at 4-5. The district court denied the motion to dismiss, holding that the court in Gould expressly held that its opinion would not be retroactive beyond June 26, 2000, and that, accordingly, Mr. Norris' two convictions "clearly were punishable by imprisonment for a term exceeding one year under state law." II R. at 12.
After reserving his right to appeal the district court's ruling, Mr. Norris pleaded guilty and proceeded to sentencing. At sentencing, Mr. Norris objected to the application of a four-level enhancement for possession of a firearm in connection with another felony offense and the calculation of his criminal history category. Regarding the four-level enhancement, Mr. Norris argued that contrary to the statement of the passenger in his vehicle, he did not fire the gun at anyone and that he therefore did not possess or use the firearm in connection with another felony under U.S.S.G. § 2K2.1(b)(5). Mr. Norris also argued that the witness' statement did not provide a sufficient factual basis to justify application of the enhancement.
Regarding the calculation of his criminal history category, Mr. Norris argued that the pre-sentence report ("PSR") improperly assessed two criminal history points each for two of his prior convictions that resulted in probation. Noting that both sentences of probation were revoked on the same day, Mr. Norris argued that under Application Note 11 to U.S.S.G. § 4A1.2, which governs the criminal history calculation where a revocation of probation applies to multiple sentences, he should have been assessed a total of three rather than four criminal history points.1
The district court first overruled Mr. Norris' objection to the four-level enhancement, holding that the witness' statement was sufficient to support application of the enhancement. As to his criminal history calculation objection, the district court began by acknowledging that the question was not "open and shut in terms of how to read this particular guideline section." IV R. at 21. Nevertheless, the district court overruled the objection, holding that because the state court imposed more than one sentence upon revocation, Application Note 11 was therefore inapplicable. IV R. at 23-24.
On appeal, Mr. Norris first argues that the district court erroneously denied the motion to dismiss his indictment for lack of a qualifying conviction under 18 U.S.C. § 922(g)(1). Whether a prior conviction was for a "crime punishable by imprisonment for a term exceeding one year" is a question of law we review de novo. See United States v. Hall, 20 F.3d 1066, 1068 (10th Cir.1994).
As noted above, § 922(g)(1) prohibits any person who has been convicted of a crime punishable by a term of imprisonment exceeding one year to, inter alia, "possess in or affecting commerce, any firearm...." Section 921(a)(20) of Title 18 further provides that "what constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." Mr. Norris was convicted of felony theft in state court in February of 1999 and again in September of 1999. He correctly points out that under Kansas' sentencing guidelines for non-drug offenses, K.S.A. § 21-4704, the presumptive maximum sentences for these two offenses were seven and nine months respectively. However, at the time of these convictions, Kansas law permitted upward departures by the trial court up to "double the maximum duration of the presumptive imprisonment term." K.S.A. § 21-4719(b)(2). Accordingly, even though the state-court judge did not depart from the guidelines in sentencing Mr. Norris, both of his convictions were nonetheless "punishable" by terms exceeding one year due to the possibility of a departure.
Our recent opinion in United States v. Arnold, 113 F.3d 1146 (10th Cir.1997) reinforces this conclusion. In Arnold we held that because Kansas' then-applicable sentencing scheme permitted upward departures from the maximum presumptive sentence based on aggravating factors, where a departure sentence could exceed one year, the underlying offense qualifies as a crime "punishable by imprisonment for a term exceeding one year" under § 922(g)(1). 113 F.3d at 1148. We reached this conclusion in Arnold even though (1) the defendant's maximum presumptive sentence in that case, as in the instant case, was less than one year under Kansas law, and (2) the state court did not depart from the presumptive sentence in sentencing the defendant. Id. In so holding, we noted that "[w]hat matters is not the actual sentence which the appellant received, but the maximum possible sentence." Id. We also rejected any contention that because no aggravating factors existed in the defendant's case, the presumptive maximum sentence was in fact the "maximum possible sentence." Id. In so doing, we held that because "[c]onsideration of aggravating factors is discretionary with the trial judge, and the list of factors [in the statute] is expressly nonexclusive... until actual imposition of sentence, appellant could not predict whether his sentence would exceed one year." Id. at n. 1.
Mr. Norris attempts to distinguish Arnold by pointing out that in 2001, the Kansas Supreme Court in State v. Gould held Kansas' departure sentencing scheme unconstitutional. Mr. Norris argues that because under Gould, the crimes for which he was convicted were no longer subject to departure sentences, and the maximum presumptive sentences for both crimes were less than one year, he "had not been convicted of a crime punishable by imprisonment for a term exceeding one year on the date when he possessed the firearm at issue." Aplt. Br. at 13. We disagree.
In Gould, the Kansas Supreme Court held that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Kansas' scheme for imposing upward departure sentences violated the due process and jury trial rights contained in the Sixth and Fourteenth Amendments. Gould, 271 Kan. 394, 23 P.3d at 814. However, the court also held that its opinion had "no retroactive application to cases final as of June 26, 2000, the date Apprendi was decided." Id. As noted above, both of Mr. Norris' prior convictions were final by September of 1999. Consequently, Gould does not foreclose a conclusion that the two 1999 theft offenses were punishable by terms of imprisonment exceeding one year under Kansas law at the time of his convictions. See Arnold, 113 F.3d at 1148.
Recognizing the above difficulty, Mr. Norris argues that "[t]he issue is not whether the Gould ...
To continue reading
Request your trial
-
US v. Serrata
...1318 (10th Cir.2003). We "give due deference to the district court's application of the guidelines to the facts." United States v. Norris, 319 F.3d 1278, 1284 (10th Cir.2003). 2. Sentencing The base offense level for a conviction under § 242 is governed by United States Sentencing Guideline......
-
U.S. v. Pruitt, 06-6002.
...sentence was imposed in Pruitt's case. This conclusion is consistent with the Tenth Circuit's holding in United States v. Norris, 319 F.3d 1278, 1281-82 (10th Cir.2003), that the possibility of an upward departure under Kansas's sentencing scheme rendered a conviction punishable for more th......
-
U.S. v. Young, Criminal Action No. 03-20116-01-KHV.
...any objection to use of his prior conviction in calculating whether defendant qualified as a career offender. See United States v. Norris, 319 F.3d 1278, 1283 (10th Cir.2003); see also United States v. Arnold, 113 F.3d 1146, 1148 (10th Cir.1997) (even though defendant received 11 month sent......
-
U.S. v. Hill, 07-3034.
...this court revisited the issue in United States v. Norris, where the defendant was sentenced to less than a year in prison. 319 F.3d 1278, 1280 (10th Cir.2003). Noting the defendant's convictions became final before Apprendi, this court held he could not claim his maximum sentence was less ......
-
Dangerous criminals or dangerous courts: foreign felonies as predicate offenses under section 922(g) (1) of the Gun Control Act of 1968.
...meted out; it depends on whether the crime was "punishable" for a term exceeding one year."); see also United States v. Norris, 319 F.3d 1278, 1282 (10th Cir. 2003); United States v. Arnold, 113 F.3d 1146 (10th Cir. 1997). The lack of any case law rejecting this proposition may be enough to......