United States v. Hill

FILED
United States Court of Appeals
Tenth Circuit

August 22, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 07-3034
v. (D. Kansas)
JAY T. HILL, (D.C. No. 06-CR-20071-KHV)

Defendant - Appellant.

ORDER GRANTING PANEL REHEARING

Before TACHA, HOLLOWAY, and MURPHY, Circuit Judges.

This matter is before the court on the government’s Petition for Rehearing

En Banc. Although we deny the government’s motion for rehearing en banc, we

grant panel rehearing based on superseding Supreme Court precedent. The

panel’s January 15, 2008 opinion, United States v. Hill, 512 F.3d 1277 (10th Cir.

2008), is vacated and replaced with the opinion issued herewith. The petition for

rehearing en banc is denied as moot, without prejudice to the filing of a petition
for rehearing from the panel’s revised opinion. We suspend 10th Cir. R. 40.3,

which prohibits successive rehearing petitions. 10th Cir. R. 2.1 (providing court

discretion to suspend local rules).

ENTERED FOR THE COURT

Elisabeth A. Shumaker, Clerk

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 FILED
United States Court of Appeals
Tenth Circuit

August 22, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-3034
JAY T. HILL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 06-CR-20071-KHV)

David J. Phillips, Federal Public Defender (Charles D. Dedmon, First Assistant
Federal Public Defender, with him on the brief), District of Kansas, Kansas City,
Kansas, for Appellant.

Terra D. Morehead, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with her on the brief), Kansas City, Kansas, for Appellee.

Before TACHA, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
 This matter is before the court on the government’s Petition for Rehearing

En Banc. Although we deny the government’s motion for rehearing en banc, we

grant panel rehearing based on superseding Supreme Court precedent. The

panel’s January 15, 2008 opinion, United States v. Hill, 512 F.3d 1277 (10th Cir.

2008), is vacated and replaced with the opinion issued herewith. The petition for

rehearing en banc is denied as moot, without prejudice to the filing of a petition

for rehearing from the panel’s revised opinion. We suspend 10th Cir. R. 40.3,

which prohibits successive rehearing petitions. 10th Cir. R. 2.1 (providing court

discretion to suspend local rules).

I. Introduction

Jay T. Hill pleaded guilty to violating 18 U.S.C. § 922(g)(1) by being a

felon in possession of a firearm. As a condition of his plea agreement, Hill

reserved the right to appeal whether his underlying Kansas conviction for criminal

possession of a firearm was a qualifying felony conviction under 18 U.S.C.

§ 922(g)(1). Hill argued that because his Kansas conviction carried a maximum

sentence of eleven months, § 922(g)(1) does not prohibit him from possessing a

firearm. This panel vacated Hill’s conviction, holding that under Kansas’s unique

sentencing scheme Hill was not convicted of a crime punishable in excess of one

year. United States v. Hill, 512 F.3d at 1282-83. The government sought

rehearing in this court or, in the alternative, a stay in the proceedings pending the

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Supreme Court’s ruling in United States v. Rodriquez, 128 S. Ct. 1783 (2008).

We abated the proceedings pending the decision in Rodriquez and now, exercising

jurisdiction pursuant to 28 U.S.C. § 1291, vacate our prior opinion and affirm

the district court.

II. Background

On November 23, 2005, in Kansas state court, Hill pleaded guilty to

criminal possession of a firearm in violation of Kan. Stat. Ann. § 21-4204. Under

Kansas law, Hill’s conviction was a severity level VIII felony. He was sentenced

to ten months’ imprisonment, which was suspended, and given eighteen months’

probation. The sentencing range for level VIII felonies in Kansas is between

seven and twenty-three months. Id. § 21-4704. Based on Hill’s criminal history,

however, his presumptive sentence range was nine to eleven months with a

presumption of probation. The state never sought an upward departure based on

aggravating factors.

In March of 2006, Kansas police attempted to stop Hill for speeding. Hill

pulled his car over to the side of the road and ran from the vehicle. After a brief

pursuit, Hill was apprehended and placed under arrest. The police searched Hill’s

car and uncovered a loaded Springfield Armory XD-40 .40 caliber pistol. Hill

was charged with violating 18 U.S.C. § 922(g)(1), which prohibits a person who

has been convicted of a crime punishable for a term of imprisonment exceeding

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one year from possessing a firearm. After the district court denied his motion to

dismiss the prosecution against him, Hill entered into a conditional guilty plea.

He reserved the right to appeal whether the underlying felony, his 2005 Kansas

conviction for criminal possession of a firearm, constitutes a “crime punishable

by imprisonment for a term exceeding one year” under § 922(g)(1).

On appeal, Hill presents the issue reserved in his conditional guilty plea.

He argues a sentence greater than eleven months could not have been imposed on

the Kansas conviction based on his criminal history and the severity level of the

crime.

III. Discussion

Whether a state conviction can qualify as an underlying felony for purposes

of the federal felon-in-possession crime under § 922(g)(1) is determined by state

law. 18 U.S.C. § 921(a)(20) (“What constitutes a conviction of [a crime

punishable for a term exceeding one year] shall be determined in accordance with

the law of the jurisdiction in which the proceedings were held.”). Kansas’s

sentencing procedures have undergone major revisions in the past several years.

These shifts in Kansas law underlie Hill’s challenge and a review of the legal

landscape is necessary to determine the validity of Hill’s claim on appeal.

A. Legal Background

Kansas enacted the Kansas Sentencing Guidelines Act “to reduce prison

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overcrowding by making a distinction between more serious and less serious

offenders.” State v. Gould, 23 P.3d 801, 811 (Kan. 2001). The Kansas guidelines

also serve to standardize sentences so that like offenders are treated in a like

fashion. Id. “The determination of a felony sentence is based on two factors: the

current crime of conviction and the offender’s prior criminal history.” Id. The

Kansas sentencing guidelines employ a grid, which is a two-dimensional chart.

The grid’s vertical axis lists the various levels of crime severity, ranging from I to

IX for non-drug offenses. Kan. Stat. Ann. § 21-4704. 1 The horizontal axis is the

criminal history scale, which classifies various criminal histories. Id. To

determine an offender’s presumptive sentence, one must consult the grid box at

the juncture of the severity level of the crime for which the defendant was

convicted and the offender’s criminal history category. Id.; see also Gould, 23

P.3d at 811.

Prior to 2001, a Kansas court was instructed to impose the presumptive

sentence provided by the Kansas sentencing guidelines, “unless the judge [found]

substantial and compelling reasons to impose a departure.” Kan. Stat. Ann.

§ 21-4716(a) (1995). A court could consider aggravating factors and depart based

on its own discretion. Id. § 21-4716(b)(2) (1995). The non-exclusive list of

aggravating factors included, inter alia, considerations such as the vulnerability

1
A separate grid is used for drug offenses. See Kan. Stat. Ann. § 21-4705.

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of the victim, excessive brutality, racial or religious motivations, and whether a

fiduciary relationship existed between the defendant and the victim. Id.

§ 21-4716(b)(2)(A)-(G) (1995).

On June 26, 2000, the United States Supreme Court held that any fact

increasing the penalty for a crime beyond the statutory maximum must be

submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). 2 A year later, the Kansas Supreme Court struck

down Kan. Stat. Ann. § 21-4716 (1995), the upward departure provision. Gould,

23 P.3d at 814. Upward departures could no longer be based on judicial fact-

finding. Id. The Kansas Supreme Court explained that Kan. Stat. Ann. § 21-4716

unconstitutionally gave trial judges the discretion to base sentences above the

statutory maximum

upon a court finding of certain aggravating factors found by a
preponderance of the evidence. Apprendi, on the other hand,
requires any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. Any other procedure is an
unacceptable departure from the jury tradition that is an
indispensable part of our criminal justice system.

2
Since Apprendi, the Supreme Court has repeatedly held that under the
Sixth Amendment, any fact that exposes a defendant to a sentence greater than the
statutory maximum must be found by a jury, not a judge, and be proved beyond a
reasonable doubt, not by a preponderance of the evidence. Ring v. Arizona, 536
U.S. 584, 602, 609 (2002); Blakely v. Washington, 542 U.S. 296, 304-05 (2004);
United States v. Booker, 543 U.S. 220, 243-44 (2005); Cunningham v. California,
127 S. Ct. 856, 871 (2007).

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Id. (quotations and citation omitted). Further, the Kansas Supreme Court held its

decision would be retroactive to June 26, 2000, the date on which Apprendi was

decided. Id. Thus, from June 26, 2000, until the sentencing law was amended by

the Kansas legislature to comport with the dictates of the Sixth Amendment,

upward departure sentences in Kansas were unconstitutional.

On June 6, 2002, Kansas adopted new sentencing provisions, allowing for

upward departures which comport with Apprendi. See Kan. Stat. Ann.

§§ 21-4716(b), 21-4718; see also Blakely v. Washington, 542 U.S. 296, 320 n.1

(2004) (O’Connor, J., dissenting) (noting the Kansas Supreme Court was the only

state court, prior to Blakely, to apply Apprendi to invalidate the application of its

sentencing guidelines). The Kansas amendments eradicated the trial court’s

discretion to sentence a defendant to an upward departure based on aggravating

factors. Instead, upward departures are permitted where “by unanimous vote, the

jury finds beyond a reasonable doubt that one or more specific factors exist that

may serve to enhance the maximum sentence.” Kan. Stat. Ann. § 21-4718(b)(7).

The state must seek an upward departure sentence not less than thirty days prior

to trial. Id. § 21-4718(b)(1). The court must then determine if any facts or

factors that would increase the sentence beyond the statutory maximum need to be

presented to the jury and proved beyond a reasonable doubt. Id. § 21-4718(b)(2).

As a consequence, upward departures are once more constitutional in Kansas, but

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they require new procedures and a jury finding.

Prior to Apprendi, which was the catalyst for the changes in Kansas

sentencing law, this court held that under 18 U.S.C. § 922(g)(1) a crime is

punishable in excess of one year if the maximum possible punishment exceeds

one year. United States v. Arnold, 113 F.3d 1146, 1148 (10th Cir. 1997) (“What

matters is not the actual sentence which the appellant received, but the maximum

possible sentence.”). In Arnold, the defendant’s maximum sentence under the

Kansas sentencing grid was eleven months, taking into account his limited

criminal history. Id. This court concluded, however, that because the state court

had the power to depart upward from the presumptive sentence based on

aggravating factors, the crime for which he was punished carried a possible

punishment of twenty-three months. It therefore qualified under § 922(g)(1) as a

crime punishable for a term in excess of one year. Id.

The power to depart upward relied upon in Arnold was then held

unconstitutional by the Kansas Supreme Court in Gould. During the period when

upward departures were unconstitutional in Kansas, 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 than a year because his convictions occurred before

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the “cut-off date designated in Gould.” Id. at 1283. This court, however,

recognized that “[h]ad Mr. Norris’ state convictions become final after June 26,

2000, we would have before us a very different case.” Id.

That “different case” alluded to in Norris arose in United States v. Plakio,

where the defendant was convicted of being a felon in possession of a firearm in

violation of § 922(g)(1). 433 F.3d 692, 693 (10th Cir. 2005) (per curiam).

Pursuant to United States Sentencing Guideline § 2K2.1(a)(4), the district court

calculated Plakio’s base offense level as twenty, based on a prior state felony

drug conviction. Id. Plakio objected, arguing the prior conviction was not a

felony under the federal sentencing guidelines because the maximum punishment

for someone with his criminal history was eleven months under the Kansas

sentencing guidelines. Id. Plakio was sentenced on May 9, 2001, during the time

in which upward departures in Kansas were unconstitutional. Id. at 695.

“Because the sentencing court could not have imposed a sentence greater than one

year, Plakio’s state conviction was not a felony for the purposes of the federal

sentencing guidelines.” Id.

Central to the Plakio decision was the premise that the maximum sentence

must be calculated by focusing on the particular defendant. Id. at 697. The

dissent in Plakio relied on United States v. Harp, 406 F.3d 242, 246 (4th Cir.

2005), to argue that the analysis should not depend on an individual defendant’s

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criminal history, but rather on whether the crime for which he was convicted

carries with it a possible sentence in excess of a year. Plakio, 433 F.3d at 697-98

(O’Brien, J., dissenting) (agreeing with the Fourth Circuit’s conclusion that in

determining “‘whether a conviction is a crime punishable by a prison term

exceeding one year . . . we consider the maximum aggravated sentence that could

be imposed for that crime upon a defendant with the worst possible criminal

history.’” (quoting Harp, 406 F.3d at 246)). The majority rejected that approach,

instead favoring one that took into account the individual defendant’s criminal

history category under the Kansas sentencing guidelines. Id. at 697. This court

explained that Arnold suggested the focus is on the individual defendant, that an

integral part of the Kansas sentencing scheme is the application of a particular

defendant’s criminal history to determine the presumptive sentence, and that

Kansas ties the maximum punishment to the characteristics of the particular

defendant. Id.

B. United States v. Rodriquez

For purposes of determining the applicability of § 922(g), the focus in

Arnold, Norris, and Plakio was on the maximum sentence to which the individual

defendant was exposed. In a closely analogous context of the Armed Career

Criminal Act (“ACCA”), however, the Supreme Court recently rejected this

approach. Rodriquez, 128 S. Ct. at 1792. In Rodriquez, the Supreme Court

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examined whether a prior state conviction carried a “maximum term of

imprisonment of ten years or more” based on a recidivism enhancement. Id. at

1787. The ACCA provides an enhanced sentence for felons “who violate[]

section 922(g) of [Title 18] and ha[ve] three previous convictions . . . for a

violent felony or a serious drug offense, or both, committed on occasions

different from one another . . . .” 18 U.S.C. § 924(e)(1). A serious drug offense

is defined as an offense “for which a maximum term of imprisonment of ten years

or more is prescribed by law.” Id. § 924(e)(2)(A)(I). Rodriquez was convicted

under § 922(g) of being a felon in possession of a firearm. Id. The government

sought an enhancement under the ACCA identifying two prior violent felony

convictions and three prior Washington state drug convictions. Id.

The question became whether any of the Washington state drug convictions

satisfy the requirements of the ACCA. The Washington drug offenses carried

with them a penalty of “imprison[ment] for not more than five years.” Id. at

1786. A separate Washington recidivism provision, however, provided that “any

person convicted of a second or subsequent offense could be imprisoned for a

term of up to twice the term otherwise authorized.” Id. (quotation and alteration

omitted). The government argued that because Rodriquez was a recidivist (i.e.,

had three drug convictions) he thereby faced ten years’ imprisonment on at least

two of the prior drug convictions and these convictions could be counted under

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the ACCA. Id. at 1787. The Ninth Circuit disagreed, holding “the maximum

term of imprisonment . . . prescribed by law must be determined without taking

recidivist enhancements into account.” Id. at 1786 (quotation omitted). The

Supreme Court reversed, holding the calculation of the “maximum term of

imprisonment . . . prescribed by law” included the term imposed by applicable

recidivist statutes. Id. at 1793. In doing so, the Court explicitly rejected the

proposition “that mandatory guidelines systems that cap sentences can decrease

the ‘maximum term of imprisonment.’” Id. at 1792.

C. Analysis

Hill argues the district court erred in concluding his Kansas firearm

conviction was a crime punishable by imprisonment for more than one year. We

review this question of law de novo. Norris, 319 F.3d at 1281.

Under Kansas law, Hill faced a maximum sentence of eleven months’

imprisonment based on the severity level of his crime and his criminal history.

Although the state court could have departed upward, any aggravating

circumstance warranting such a departure had to be proved beyond a reasonable

doubt. Kan. Stat. Ann. §§ 21-4716(b) and 21-4718(b). Because no such

circumstances were alleged or proved, Hill did not, in fact, face a sentence in

excess of one year. Under Arnold, Norris, and Plakio, the prospect that a

hypothetical defendant convicted of violating Kan. Stat. Ann. § 21-4204 could

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face a sentence greater than one year was irrelevant to our analysis. See Plakio,

433 F.3d at 697 (explaining the relevant inquiry was the maximum sentence this

defendant was exposed to under the Kansas sentencing guidelines); Norris, 319

F.3d at 1281-82 (focusing on the maximum sentence the individual defendant

could have received); Arnold, 113 F.3d at 1148 (same). The focus was not on the

maximum sentence for the crime but rather the maximum sentence for the

individual defendant. Thus, whether the Kansas court could depart upward

became crucial to the § 922(g)(1) analysis. When an upward departure was

possible, the defendant could face a sentence greater than his presumptive grid

sentence. See Arnold, 113 F.3d at 1148. Conversely, when the court lacked the

authority to depart upward and the defendant’s presumptive sentencing range was

less than one year of imprisonment, the conviction was not a crime punishable for

a term of imprisonment in excess of one year. See Plakio, 433 F.3d at 695-96.

The focus on the individual defendant, however, was misplaced and contrary to

the structure of § 922(g)(1). Moreover, the Supreme Court in Rodriquez has now

rejected that approach.

1. Structure of § 922(g)(1)

In drafting § 922(g)(1), Congress focused on the crime, not the individual

defendant. The statute criminalizes the possession of firearms for “any person []

who has been convicted in any court of, a crime punishable by imprisonment for a

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term exceeding one year.” 18 U.S.C. § 922(g)(1). On the question of whether

§ 922(g)(1) is defendant-centered or crime-centered, the reasoning of the Fourth

Circuit is persuasive: “[s]ection 922(g)(1) requires only that the crime be

punishable by a term exceeding one year.” United States v. Jones, 195 F.3d 205,

207 (4th Cir. 1999). Examining the statute, the court explained:

In § 922(g)(1), “punishable” is an adjective used to describe “crime.”
As such, it is more closely linked to the conduct, the crime, than it is
to the individual convicted of the conduct. Congress could have
written § 922(g)(1) differently had it intended to focus on the
individual in particular rather than the crime for which the individual
was convicted. Instead of the phrase, “individual convicted of a
crime punishable by imprisonment for a term exceeding one year,”
Congress could have used the phrase, “individual punished by
imprisonment for a term exceeding one year” or even “individual
sentenced for imprisonment for a term exceeding one year.”

Id. (alterations and quotation omitted); see also Plakio, 433 F.3d at 698 (O’Brien,

J., dissenting) (suggesting our focus should be on “whether the crime and not the

particular defendant is punishable by more than a year imprisonment”). 3 Jones

examined a conviction and sentence under the North Carolina sentencing scheme.

195 F.2d at 206. Like Kansas, North Carolina employed a grid to determine a

defendant’s presumptive sentence. Id. Even though Jones faced a maximum

penalty of twelve months’ imprisonment, the Class H crime for which he was

3
This distinction between the structures of crime-centered and defendant-
centered statutes has been expressly explored by the Supreme Court, as we
discuss supra, in Section III.C.2.

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convicted carried a maximum sentence of thirty months’ imprisonment. Id. at

206-07. The court concluded the statutory maximum for the crime of conviction

was thirty months, and was therefore “a crime punishable by imprisonment for a

term exceeding one year.” Id. at 207; see also United States v. Murillo, 422 F.3d

1152, 1155 (9th Cir. 2005) (holding statutory maximum for prior conviction is

“the potential maximum sentence defined by the applicable state criminal statute,

not the maximum sentence which could have been imposed against the particular

defendant . . . according to the state’s sentencing guidelines”).

Hill ignores the structure of § 922(g)(1) and asks us to focus instead on the

structure of the Kansas sentencing scheme. He suggests that Kansas does not set

a statutory maximum for a crime, but instead tailors each sentence to the

defendant’s criminal history. Although an individual defendant’s sentence may

be capped at his presumptive guideline range, this does not negate the Kansas

code which sets a statutory maximum for each crime. Section 21-4204(b)(d)

establishes that criminal possession of a firearm is a severity level VIII,

nonperson felony. Section 21-4704, in turn, establishes that the range of

sentences for severity level VIII crimes is seven to twenty-three months. Thus,

the statutory maximum for any severity level VIII crime, including criminal

possession of a firearm, is twenty-three months’ imprisonment. A defendant

convicted of a severity level VIII crime with a more extensive criminal history

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does not commit a different crime. Instead, he is simply exposed to a greater

sentence under the guidelines. Although Hill’s argument had merit under Arnold,

Norris, and Plakio, it is irreconcilable with the structure of § 922(g)(1). Because

the focus under § 922(g)(1) should be on the crime committed by the defendant,

our analysis must center on the maximum statutory sentence for criminal

possession of a handgun in Kansas, i.e., the statutory maximum of twenty-three

months’ imprisonment. Under the doctrine of stare decisis, the structure of

§ 922(g)(1), alone, would not have been sufficient to overrule our precedent. See

United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000). Intervening

Supreme Court precedent, however, overrules our prior approach.

2. United States v. Rodriquez

Focusing on the maximum sentence for the predicate crime of conviction is

mandated by the Supreme Court’s analysis in Rodriquez. Where the predicate

crime for an ACCA enhancement is a state drug offence, the ACCA, like

§ 922(g)(1), looks to state law to define the term of imprisonment. 18 U.S.C.

§ 924(e)(2)(A)(ii); Rodriquez, 128 S. Ct. at 1790 (“Congress chose to rely on . . .

state law as a measure of the seriousness of state offenses . . . .”). Rodriquez

probed the meaning of the ACCA’s definition of a serious drug offense, defined

as an “offense” for which “a maximum term of imprisonment of ten years or more

is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). In this case, our analysis

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turns on the meaning of the § 922(g)(1) language, “crime punishable by

imprisonment for a term exceeding one year.” Although § 922(g)(1) does not

speak in terms of “maximum term of imprisonment” for an “offense,” our analysis

focuses on just that. See, e.g., Murillo, 422 F.3d at 1153-54 (“[I]n determining

whether a state conviction is punishable for more than one year’s imprisonment

. . . we look to the maximum penalty allowed by statute.”); Plakio, 433 F.3d at

694 (analyzing “maximum possible sentence for the prior conviction”); Arnold,

113 F.3d at 1148 (“What matters is not the actual sentence which the appellant

received, but the maximum possible sentence.”). We see no relevant difference

between defining a maximum term of imprisonment for an “offense” and for a

“crime” in this context.

Before the Supreme Court, Rodriquez argued the Washington state

recidivism statute should not be factored into the court’s calculation of his

maximum term of imprisonment. By way of analogy, he argued “if recidivist

enhancements can increase the ‘maximum term’ of imprisonment under [the]

ACCA, it must follow that mandatory guidelines systems that cap sentences can

decrease the ‘maximum term’ of imprisonment.” Rodriquez, 128 S. Ct. at 1792.

In rejecting this proposition, the Court concluded the “‘maximum term of

imprisonment . . . prescribed by law’ for the ‘offense’ was not meant to apply to

the top sentence in a guidelines range.” Id. Importantly, the Court distinguished

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between statutes focusing on the maximum sentence for an individual defendant

and statutes focusing on the particular crime. In United States v. R.L.C., 503 U.S.

291 (1992), the Court examined 18 U.S.C. § 5037(c) (2000), which set out the

term of official detention for a delinquent juvenile. The provision did not refer to

the “maximum term of imprisonment” for an “offense,” but “focused on the

particular juvenile being sentenced.” Rodriquez, 128 S. Ct. at 1793. The

provision stated a delinquent juvenile, less than eighteen years old, may be

sentenced to a term of official detention which could not extend beyond the

earlier of two dates: when the juvenile turned twenty-one years of age or “the

maximum term of imprisonment that would be authorized if the juvenile had been

tried and convicted as an adult.” R.L.C., 503 U.S. at 295 n.1 (quoting 18 U.S.C.

§ 5037(c)). The R.L.C. Court held “maximum term of imprisonment” in

§ 5037(c) was limited to the maximum length of sentence after applying the

guidelines. Id. at 306-07. This decision was based, in large part, on the statutory

emphasis on the particular juvenile and not on the offense. Id. at 299 (“On its

face, the current language suggests . . . a focused enquiry into the maximum that

would be available in the circumstances of the particular juvenile before the

court.”); Rodriquez, 128 S. Ct. at 1793 (distinguishing R.L.C. based on its

“focus[] on the circumstances of the particular juvenile and not on the offense”).

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 Unlike the R.C.L. juvenile detention statute, § 922(g)(1) does not focus on

the particular offender. Instead, § 922(g)(1) is analogous to “maximum term of

imprisonment . . . prescribed by law” for the “offense,” focusing on the maximum

punishment for “any defendant charged with that crime.” Harp, 406 F.3d at 246;

see also Rodriquez, 128 S. Ct. at 1792 (explaining the concept of “maximum”

term of imprisonment “necessarily referred to the maximum term prescribed by

the relevant criminal statute, not the top of a sentencing guideline range”).

Section 922(g)(1), like the statute explored in Rodriquez, demands that courts

focus on the maximum statutory penalty for the offense, not the individual

defendant. See id. Hill was convicted of violating Kan. Stat. Ann. § 21-4204, a

severity level VIII crime in Kansas. Because that crime carries a maximum

penalty of 23 months’ imprisonment, he was convicted of “a crime punishable by

imprisonment for a term exceeding one year.”

IV. Conclusion

For the foregoing reasons, this panel vacates its prior opinion and affirms

Hill’s conviction under 18 U.S.C. § 922(g)(1).

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