United States v. Hilleland

Appellate Case: 21-3063 Document: 010110610841 Date Filed: 11/29/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 29, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-3063 (D.C. No. 5:19-CR-40059-HLT-1) DEVONSHAY T.A. HILLELAND, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, SEYMOUR, and EBEL, Circuit Judges. _________________________________

Devonshay Hilleland was convicted of possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Hilleland admitted to possession of the firearm. But he argues that he does not qualify as a felon under § 922(g), and thus it was lawful for him to possess the weapon.

Hilleland has a prior Kansas burglary conviction. Under the Kansas sentencing scheme, the state court was required to give Hilleland a sentence of

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appellate Case: 21-3063 Document: 010110610841 Date Filed: 11/29/2021 Page: 2 probation.1 It sentenced Hilleland to 18 months of probation and a 13-month suspended sentence of imprisonment. Because Hilleland did not materially violate the conditions of his probation, he was not required to serve the 13-month suspended sentence.

Hilleland was then charged in federal district court with unlawful possession of a firearm under § 922(g). Section 922(g)(1) prohibits possession of a firearm by anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” The district court found that Hilleland’s prior Kansas conviction qualified as a “crime punishable by imprisonment for a term exceeding one year,” because Hilleland could have received the suspended sentence of 13 months of imprisonment if he had violated his probation.

But the district court did not have the benefit of United States v. Hisey, 12 F.4th 1231 (10th Cir. 2021), which was published during the pendency of this appeal. The Hisey court considered the same Kansas sentencing scheme. It found that a mandatory sentence of probation, even with a long suspended sentence of imprisonment, was not a predicate offense under § 922(g). It reasoned that the

1 “If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment.” K.S.A. 21-6804(f). A Kansas court may depart from the presumptive disposition only if it finds certain facts, none of which were present in this case. See State v. Dillard, 890 P.2d 1248, 1251 (Kan. App. 1995) (“If the sentencing court does not announce a dispositional departure and the presumption of nonimprisonment is not rebutted by a statute, the court must then impose a nonprison sanction.”).

Appellate Case: 21-3063 Document: 010110610841 Date Filed: 11/29/2021 Page: 3 underlying offense was only punishable with probation—it would require additional misconduct, a parole violation, to imprison a defendant under the Kansas scheme.

The government argues that Hisey does not control because the opinion did not address Alabama v. Shelton, 535 U.S. 654 (2002). In Shelton, the Supreme Court found that a suspended sentence of imprisonment triggers a defendant’s Sixth Amendment right to counsel. Id. The government contends that Shelton controls here, because it recognized a suspended sentence as imprisonment attributable to the underlying crime, not to a parole violation.

But Shelton was a Sixth Amendment case. Its holding does not control when interpreting a federal statute, with a different text and purpose from the Sixth Amendment. Shelton may have been persuasive to the panel in Hisey, but the government did not raise an argument under Shelton in that case. This panel is not permitted to overlook a controlling Tenth Circuit decision because the government previously failed to raise a persuasive argument. Thus, Hisey controls this case, not Shelton.

Here, just as in Hisey, Hilleland received a mandatory sentence of probation for his state offense. Hisey had to receive probation because he met certain characteristics, while Hilleland had to receive probation because he did not meet certain aggravating characteristics. This is a distinction without a difference—both defendants had a mandatory sentence of probation.

Hisey instructs that a crime punishable only with mandatory probation, even with a suspended sentence of imprisonment, is not a predicate crime under § 922(g). *4 Appellate Case: 21-3063 Document: 010110610841 Date Filed: 11/29/2021 Page: 4 Thus, Hilleland, like Hisey, does not fall into the class of persons prohibited from possessing a firearm under § 922(g). He could not have committed the § 922(g) offense that he was sentenced for.

For the reasons above, we reverse Hilleland’s conviction for unlawful possession of a firearm and remand for any further proceedings in the district court.

Entered for the Court

Timothy M. Tymkovich Chief Judge