Defendant did not have a prior conviction for a "crime punishable by imprisonment for one year" under Kansas law; felon-in-possession conviction reversed

United States v. Hisey, 2021 WL 4163499 (10th Cir. Sept 14, 2021) (KS): The panel majority agrees with Hisey that he is actually innocent of the offense to which he pleaded guilty, unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The panel finds that under Kansas law the maximum punishment for the offense which served as the § 922(g)(1) predicate, was probation and drug treatment. Therefore, Hisey had not violated § 922(g)(1) when possessed the firearm because he had not been convicted of a “crime punishable by imprisonment for one year.” Before he possessed the firearm, Hisey was convicted in Kansas state court of possessing controlled substances. Kansas’s sentencing law required the court to impose a sentence of drug treatment and probation, which it did. The court told Hisey if he violated his conditions of probation, it was possible that probation would be revoked and he could be imprisoned for up to 30 months. The panel said that it did not matter that Hisey could be imprisoned within the ‘presumptive’ imprisonment range of 28 to 32 months if he violated probation. Nor did it matter that the state court also imposed a suspended 30 month term. The maximum prison term for the offense is determined by looking at the term this particular individual could have received. The panel found that the state court was obligated to sentence him to probation and drug treatment, “so he could not have received any imprisonment.” The panel explained that what might await Hisey if he violated probation was not part of maximum punishment analysis. Probation revocation was only possible through new proceedings and a new hearing. There the state would need to prove Hisey violated conditions. Yet even if it did so, Kansas law did not require the court to impose a prison term over one year. Rather, it expected the court to start with the lesser sanctions of continuing or modifying conditions and 2-3 days of confinement. Even if the court eventually revoked Hisey’s probation, it had the discretion to sentence him to a term less than 30 months and less than a year. The possible “path to future imprisonment” then is filled with contingencies, and thus, cannot set the maximum punishment this accused faced when he possessed the firearm. Indeed, when Hisey possessed the firearm, he had not violated any of his probation conditions. The panel concluded, the state court “could not have imposed any prison time for the drug conviction” and “given the impossibility of imprisonment,” Hisey did not violate § 922(g)(1) when he possessed the firearm.