Combining Murdock and Brooks could really help some federal defendants

In State v. Murdock, No. 104,533 (Kan. May 2, 2014), the Kansas Supreme Court recently held that when determining criminal history for a defendant in a Kansas state felony case, all out-of-state prior convictions that predate the Kansas Sentencing Guidelines (effective July 1, 1993) should be scored as nonperson crimes.  As blogged about here, based on other Kansas Supreme Court case law, Kansas defendants who have already been sentenced should be able to obtain Murdock relief on their sentences by filing a motion to correct illegal sentence under K.S.A. 22-3504, which can be filed at any time. 

A few weeks after Murdock was decided, the Tenth Circuit decided United States v. Brooks, No. 13-3166 (10th Cir. June 2, 2014), a case that changed the way prior convictions from Kansas state courts are analyzed under federal criminal law.  As blogged about here, Brooks held that the applicable grid box a defendant is sentenced with using the Kansas Sentencing Guidelines grid can determine whether that prior Kansas state conviction is a "felony" for federal law.  Thus, for the prior Kansas conviction, if the top number in the grid box on the journal entry of judgment is 12 months or less, the prior conviction will not count as a felony under federal law.  This can affect a number of sentencing enhancements in federal cases, such as those in aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors.  Additionally, it can impact whether someone is legally allowed to possess a firearm or ammunition under 18 U.S.C. 922 and/or affect the sentencing enhancements in those cases.

As Kansas AFPD David Freund recently suggested to me, the impact of Brooks and that of Murdock could overlap in certain cases.  This is because Brooks advises that you need to look at the applicable grid-box used for sentencing in a Kansas state conviction to determine whether it is a felony for federal purposes.  And it follows that if you can use Murdock to go back and lower the grid-box for that prior case, then it could change whether the prior conviction is considered a felony for any number of enhancements in federal criminal law (as blogged about here, there are other fun ways to use state collateral attacks to stave off a federal sentencing enhancement).

Hypothetical

Let's say you represent a defendant in federal court, and they are looking at an Armed Career Criminal Act enhancement based in part upon a prior Kansas conviction for a severity level 8 aggravated battery.  Let's also say that when the defendant was sentenced in that prior state aggravated battery case, he had one pre-1993 prior conviction that was scored as a person felony.  Thus, his prior "person" felony in the aggravated battery case landed him in the 8-D box of the Kansas Sentencing Guidelines for sentencing in that case.  With the 8-D grid-box carrying incarceration terms of 17-16-15 months, the crime seemingly qualifies as "a crime punishable by imprisonment for a term exceeding one year" (a felony as defined by federal law) and thus could be used to trigger the ACCA enhancement in the federal case.

But as held in Murdock, the pre-1993 prior conviction that was scored as a person felony in the aggravated battery case should have been scored as a nonperson felony in that case, making the sentencing box the 11-10-9 grid-box contained in 8-G of the Kansas sentencing grid.  Thus, the aggravated battery conviction, when the correct criminal history is applied in that case, is not "a crime punishable by imprisonment for a term exceeding one year" and should not be used as an ACCA predicate in the new federal prosecution.  See Brooks.

The solution to this hypothetical problem might be to file a motion to correct the illegal sentence in the old state case and ask that the prior journal entry of judgment list the correct grid-box as the law is set forth in Murdock.  Then, the journal entry of judgment for that Kansas state aggravated battery case would show that the conviction no longer qualifies as a felony under federal law and thus could not be used as an ACCA predicate in the federal case.