United States v. Hisey
Decision Date | 14 September 2021 |
Docket Number | No. 20-3106,20-3106 |
Citation | 12 F.4th 1231 |
Parties | UNITED STATES of America, Plaintiff - Appellee, v. Timothy Michael HISEY, Defendant - Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
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.
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.
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.
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).
?
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) ( ); see also State v. Andelt , 289 Kan. 763, 217 P.3d 976, 983 (2009) ( ).
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.
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.
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 ).
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. ( ).
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) (). 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) ( ).
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 (Immigration and Nationality Act) the .
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) ( ); United States v. Haltiwanger , 637 F.3d 881, 883–84 (8th Cir. 2011) (...
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