                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                   June 2, 2014
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 13-3166
 DAMIAN L. BROOKS,

       Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 2:11-CR-20136-KHV-1)


Melody Evans, Interim Federal Public Defender, Topeka, KS, for Defendant-
Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


BALDOCK, Circuit Judge.


      Did Defendant Damian L. Brooks commit enough prior qualifying felonies to

be considered a “career offender” under the Federal Sentencing Guidelines? The

district court below said yes, relying on United States v. Hill, 539 F.3d 1213 (10th

Cir. 2008), to classify a prior Kansas conviction of Defendant as a felony because
it was punishable by more than one year in prison. On appeal, Defendant admits Hill

mandates this classification. He argues, however, that Hill was abrogated by the

Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). We agree.

As such, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we

reverse and remand for resentencing.

                                         I.

A. Kansas Sentencing Guidelines

      Kansas’s rather unusual criminal sentencing scheme lies at the heart of the

current dispute. While we now abandon Hill’s holding, we do not quibble with Hill’s

description of Kansas’s sentencing parameters. In general, Kansas criminal statutes

do not contain explicit maximum penalties (e.g. “Burglary is punishable by no more

than ten years . . . .”). See, e.g., Kan. Stat. Ann. § 21-6201 (2010). Instead,

      [t]he determination of a felony sentence [in Kansas] is based on two
      factors: the current crime of conviction and the offender’s prior
      criminal history. The Kansas sentencing guidelines employ a grid,
      which is a two-dimensional chart.[ 1] The grid’s vertical axis lists the
      various levels of crime severity, ranging from I to IX for non-drug
      offenses. The horizontal axis is the criminal history scale, which
      classifies various criminal histories. 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. . . .

      On June 6, 2002, Kansas adopted new sentencing provisions . . .
      eradicat[ing] the trial court’s discretion to sentence a defendant to an


      1
         The chart for non-drug offenses is attached to this opinion. See Appendix;
cf. Kan. Stat. Ann. § 21-6804 (2013) (statutory basis for the chart).

                                          2
      upward departure [from the presumptive sentence] 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. The
      state must seek an upward departure sentence not less than thirty days
      prior to trial. 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. As a
      consequence, upward departures are . . . constitutional in Kansas, but
      they require new procedures and a jury finding.

Hill, 539 F.3d at 1215–16 (internal quotation marks, citations, and footnote omitted).

B. Federal Sentencing Guidelines

      Under § 4B1.1(a) of the U.S. Sentencing Guidelines Manual (U.S.S.G.), a

defendant is considered a “career offender” if, among other things, he “has at least

two prior felony convictions of either a crime of violence or a controlled substance

offense.” The U.S.S.G. commentary later defines “[p]rior felony conviction” as “a

prior adult federal or state conviction for an offense punishable by . . . imprisonment

for a term exceeding one year, regardless of whether such offense is specifically

designated as a felony and regardless of the actual sentence imposed.” U.S.S.G.

§ 4B1.2 cmt. app. n.1 (emphasis added).

C. Precedent

      In 2005 we decided United States v. Plakio, 433 F.3d 692 (10th Cir. 2005),

which required us to determine whether a defendant’s prior Kansas drug conviction

qualified under U.S.S.G. § 2K2.1(a)(4)(A) as a “felony”; that is, whether the offense

was “punishable by . . . imprisonment for a term exceeding one year.” Plakio, 433


                                          3
F.3d at 693–94 (quoting U.S.S.G. § 2K2.1 cmt. app. n.1).           Under Kansas’s

sentencing scheme, the defendant could have received eleven months in prison at

most. Id. at 695. Reversing the district court, we held this conviction was not a

felony “[b]ecause the [state] sentencing court could not have imposed a sentence

greater than one year.” Id. “Central to the Plakio decision was the premise that the

maximum sentence must be calculated by focusing on the particular defendant,”

taking his criminal history category (under Kansas law) into account. Hill, 539 F.3d

at 1217 (citing Plakio, 433 F.3d at 697).

      Three years later, the Supreme Court issued United States v. Rodriquez, 553

U.S. 377 (2008). Soon after, we decided Hill, 539 F.3d 1213. Much like Plakio, Hill

required us to determine whether a defendant’s prior Kansas firearm conviction

qualified as a “crime punishable by imprisonment for a term exceeding one

year”—this time under 18 U.S.C. § 922(g)(1). Hill, 539 F.3d at 1214. Also like

Plakio, under Kansas’s sentencing scheme the defendant could have received no

more than eleven months in prison. Id. Initially, under our Plakio approach, we held

the defendant was not convicted of a “crime punishable by imprisonment for a term

exceeding one year.” Id. at 1213–14, 1218. After Rodriquez was released, however,

we granted panel rehearing and vacated our prior opinion. Id. Rodriquez, we held,

“explicitly rejected the proposition that mandatory guidelines systems that cap

sentences [like Kansas’s system] can decrease the maximum term of imprisonment.”

Id. at 1218 (quoting Rodriquez, 553 U.S. at 390) (internal quotation marks omitted).

                                            4
Relying on Rodriquez, we overturned Plakio and held the proper focus in regard to

the language in question is on the crime itself, not the individual defendant. Id. at

1221. “A defendant convicted of a severity level VIII crime with a more extensive

criminal history does not commit a different crime,” we emphasized. “Instead, he

is simply exposed to a greater sentence under the guidelines.” Id. at 1219. Thus, we

held that when analyzing whether a defendant’s prior crime was punishable by a

certain amount of prison time under Kansas’s scheme, the largest possible recividist

enhancement must be taken into account. Id. at 1221. And, because the severity

level of Hill’s crime cross-referenced with the worst criminal history possible carried

a maximum penalty of twenty-three months in jail, we concluded he was convicted

of “a crime punishable by imprisonment for a term exceeding one year.” Id. (quoting

18 U.S.C. § 922(g)(1)).

      In 2010, the Supreme Court issued Carachuri-Rosendo, 560 U.S. 563. There

the defendant was a lawful permanent resident being removed from the United States

because of two prior Texas drug misdemeanor convictions—one in 2004 and one in

2005. Id. at 566, 570–71. For the 2005 crime, which involved possession of a single

Xanax tablet sans prescription, the defendant was sentenced to just ten days in jail.

Id.   In Texas, however, he could have been subject to a major sentencing

enhancement because of the 2004 conviction—an enhancement that would have

exposed him to more than one year in prison—but only if the prosecution proved the

prior conviction. Id. at 570–71. The State did not elect to offer such proof. Id. at

                                          5
571. Regardless, the Federal Government in Carachuri-Rosendo contended the

defendant was not eligible for cancellation of removal or waiver because the 2005

offense qualified as an “aggravated felony” under the Immigration and Nationality

Act (INA), a determination that ultimately hinged on whether the crime allowed for

a “maximum term of imprisonment” of “more than one year.” Id. at 566–67 (quoting

8 U.S.C. § 1229b(a)(3) and 18 U.S.C. § 3559(a)). The Government theorized that,

“had Carachuri-Rosendo been prosecuted in federal court instead of state court [for

the 2005 offense], he could have been prosecuted as a felon and received a 2-year

sentence based on the . . . [2004] offense.” Id. at 570 (emphasis in original).

      In its decision, the Supreme Court first expressed wariness of the

Government’s argument because “the English language tells us that most aggravated

felonies are punishable by sentences far longer than 10 days . . . .” Id. at 575. The

Supreme Court then rejected the Government’s “hypothetical approach” because it:

(1) ignored the INA’s text, which “indicates that we are to look at the conviction

itself . . . not to what might or could have been charged”; (2) would punish a

defendant for recidivism without providing him notice or opportunity to contest said

recidivism and would “denigrate the independent judgment of state prosecutors” who

chose not to prove recidivism; (3) depends on a misreading of Lopez v. Gonzales,

549 U.S. 47 (2006), which did not go so far as to permit the reliance on a

“hypothetical to a hypothetical”; (4) was inconsistent with common federal court

practice, whereby the defendant “would not, in actuality, have faced any felony

                                          6
charge”; and (5) failed to construe an ambiguity in an immigration-related criminal

statute in the noncitizen’s favor. Id. at 575–81. In conclusion, the Supreme Court

stated: “The prosecutor in Carachuri-Rosendo’s [Texas] case declined to charge him

as a recidivist. He has, therefore, not been convicted of a felony punishable [by

more than one year in prison] under the Controlled Substances Act.” Id. at 582.

      Significantly, the Supreme Court also dismissed the argument that Rodriquez

supported the Government. Rodriquez, the Court clarified, “held that a recidivist

finding could set the ‘maximum term of imprisonment,’ but only when the finding

is a part of the record of conviction.” Id. at 577 n.12. Indeed, the Court noted,

      we specifically observed [in Rodriquez] that “in those cases in which
      the records that may properly be consulted do not show that the
      defendant faced the possibility of a recidivist enhancement, it may well
      be that the Government will be precluded from establishing that a
      conviction was for a qualifying offense.” In other words, [pursuant to
      Rodriquez,] when the recidivist finding giving rise to a 10-year
      sentence is not apparent from the sentence itself, or appears neither as
      part of the “judgment of conviction” nor the “formal charging
      document,” the Government will not have established that the defendant
      had a prior conviction for which the maximum term of imprisonment
      was 10 years or more (assuming the recidivist finding is a necessary
      precursor to such a sentence).

Id. (internal citations omitted).

D. Facts

      In December 2009, a Kansas state court convicted Defendant of possessing

cocaine with intent to sell and sentenced him to 40 months in jail. Around the same

time, Defendant was convicted in a Kansas state court of eluding a police officer.


                                          7
For this latter crime, Defendant’s presumptive Kansas guideline range allowed for

a maximum of seven months of jail time. The prosecutor did not seek an upward

departure, meaning the state court could not have sentenced Defendant to more than

seven months imprisonment. In the end, the court imposed a six month sentence.

      On May 8, 2012, Defendant pled guilty in the federal District of Kansas to

possessing with intent to distribute cocaine base in violation of 21 U.S.C.

§ 841(a)(1), and to using and carrying a firearm in furtherance of a drug trafficking

offense in violation of 18 U.S.C. § 924(c). Prior to sentencing, the United States

Probation Office concluded in its Presentence Report (PSR) that Defendant was a

“career offender” under U.S.S.G. § 4B1.1(a) because, among other requirements not

at issue here, he had “at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” Namely, the PSR counted Defendant’s

prior cocaine distribution conviction as a felony controlled substance offense and his

prior eluding conviction as a felony crime of violence.        This career offender

categorization added two points to Defendant’s offense level, giving him a total

offense level of 31. This, combined with his criminal history category, produced a

guideline range of 262 to 327 months in prison.

      Defendant objected to his career offender classification, arguing that eluding

a police officer, while indeed a crime of violence, was not a federal felony in this

instance because it was not “punishable by . . . imprisonment for a term exceeding

one year.” For support, Defendant relied on Carachuri-Rosendo, which he argued

                                          8
had implicitly invalidated Hill and Hill’s reliance on the “hypothetical worst

recidivist” to determine the length of imprisonment for which a crime was

punishable. Because the Kansas prosecution never sought an upward departure in

regard to Defendant’s conviction for eluding a police officer, the crime only

subjected him to a maximum of seven months in prison. Thus, Defendant asserted,

it was not a felony under the federal sentencing strictures.        In response, the

Government stood by Hill; eluding a police officer was punishable by over one year

in prison because a defendant with the worst criminal history possible could have

received up to 17 months in jail for committing the crime. Both parties agreed this

issue should not be covered by the waiver of appeal in Defendant’s plea agreement,

and the district court acknowledged the parties’ unity on this point.

      Eventually, after a hearing, the district court overruled Defendant’s objection

in a written order. The court acknowledged two circuits had “held that in light of

Carachuri-Rosendo, hypothetical aggravating factors cannot be considered when

determining a defendant’s maximum punishment for a prior offense.” See United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc); United States v.

Haltiwanger, 637 F.3d 881 (8th Cir. 2011). The court, however, denied having the

authority to ignore Hill because the case was not “clearly irreconcilable” on its face

with Carachuri-Rosendo. For support on this point, the court noted that six circuit

judges dissented in Simmons and Haltiwanger combined.

      At sentencing, the district court departed downward based on the plea

                                          9
agreement and sentenced Defendant to 151 months imprisonment on both counts

combined. Had the career offender enhancement not been applied, the guideline

imprisonment range would have been 121 to 151 months. Defendant appealed.

                                         II.

      Defendant’s sole argument on appeal is that, in light of Carachuri-Rosendo,

the district court wrongfully relied upon our past precedent in Hill to label him a

career offender under U.S.S.G. § 4B1.1(a). Absent en banc consideration, we

generally “cannot overturn the decision of another panel of this court.” United States

v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000). This rule does not apply, however,

when the Supreme Court issues an intervening decision that is “contrary” to or

“invalidates our previous analysis.” Id.; United States v. Shipp, 589 F.3d 1084, 1090

n.3 (10th Cir. 2009) (citation omitted). Thus, we must now determine whether

Carachuri-Rosendo contradicts or invalidates Hill’s prescribed method for

determining the maximum punishment length for a past state crime. This issue is

entirely legal in nature, and we review legal issues in this context de novo. United

States v. Patterson, 561 F.3d 1170, 1172 (10th Cir. 2009). In the end, we hold that

Carachuri-Rosendo does indeed invalidate Hill’s analysis.

      We acknowledge up front that Carachuri-Rosendo is not directly on point with

Hill or with our Defendant. After all, Carachuri-Rosendo involved immigration law,

a different line of Supreme Court precedent, see, e.g., Lopez, 549 U.S. 47, and

whether a past crime was an aggravated felony, among various other distinguishable

                                         10
aspects. 2 The question, however, is not whether an intervening Supreme Court case

is on all fours with our precedent, but rather whether the subsequent Supreme Court

decision contradicts or invalidates our prior analysis. Here, Carachuri-Rosendo

plainly invalidates Hill, primarily because of the Supreme Court’s clarification of the

holding of its own precedent—Rodriquez. As detailed above, the Supreme Court

rejected the argument that Rodriquez’s recidivism holding supported the

Government’s “hypothetical to a hypothetical” approach. Carachuri-Rosendo, 560

U.S. at 577 n.12. In doing so, the Supreme Court expounded upon Rodriquez in a

manner entirely contradictory to our interpretation of that case in Hill.

      In Hill, we relied on Rodriquez to overturn our own prior precedent.

Rodriquez, we wrote, stood for the proposition that “the calculation of the ‘maximum

term of imprisonment . . . prescribed by law’ included the term imposed by

applicable recidivist statutes.” Hill, 539 F.3d at 1218 (quoting Rodriquez, 553 U.S.

at 393). Moreover, we held, Rodriquez “explicitly rejected the proposition that

mandatory guidelines systems that cap sentences [like Kansas’s system] can decrease

the maximum term of imprisonment.” Id. (quoting Rodriquez, 553 U.S. at 390)

(internal quotation marks omitted). The Supreme Court in Carachuri-Rosendo,

however, wrote that under Rodriquez a recidivist finding could only set the maximum


      2
          To give another example, as mentioned above the Supreme Court
emphasized that the scales were tilted against the Government from the beginning
because “the English language tells us that most aggravated felonies are punishable
by sentences far longer than 10 days . . . .” Carachuri-Rosendo, 560 U.S. at 575.

                                          11
term of imprisonment “when the finding is a part of the record of conviction.”

Carachuri-Rosendo, 560 U.S. at 577 n.12 (emphasis added). Riffing on the facts of

Rodriquez, the Court stated: “[W]hen the recidivist finding giving rise to a [prior]

10-year sentence is not apparent from the sentence itself, or appears neither as part

of the ‘judgment of conviction’ nor the ‘formal charging document,’ the Government

will not have established that the defendant had a prior conviction for which the

maximum term of imprisonment was 10 years or more . . . .” Id. (internal citation

omitted).   In short, in Hill we interpreted Rodriquez to mean the most severe

recidivist increase possible always applies when calculating a maximum sentence,

whereas the Supreme Court has now interpreted Rodriquez to mean a recidivist

increase can only apply to the extent that a particular defendant was found to be a

recidivist. This makes all the difference in the world to our Defendant, who was

saddled by the district court with the guideline range merited by the worst recidivist

imaginable even though his own recidivism did not allow for imprisonment of more

than one year. Under Rodriquez via Hill Defendant is a career offender; under

Rodriquez via Carachuri-Rosendo, he is not.

      Based on Carachuri-Rosendo, our interpretation of Rodriquez in Hill was

incorrect. This incorrect interpretation was pivotal to our holding in Hill that, in

determining whether a prior Kansas crime was punishable by more than a year in

prison, we must “focus on the maximum statutory penalty for the offense, not the




                                         12
individual defendant.” Hill, 539 F.3d at 1221 (emphasis added). 3 Thus, we must

reverse the district court here and hold that Carachuri-Rosendo contradicts and

invalidates Hill. Under Kansas law, Defendant could not have been sentenced to

more than seven months in jail for his eluding conviction.              That conviction,

therefore, did not qualify as an “offense punishable by . . . imprisonment for a term

exceeding one year.” U.S.S.G. § 4B1.2 cmt. app. n.1. As such, Defendant should

not have been labeled a career offender under the Guidelines because he only had

one “prior felony conviction[] of either a crime of violence or a controlled substance

offense,” whereas two such convictions are required. Id. § 4B1.1(a). To summarize,

Hill no longer controls, and we revert back to our prior precedent on this point. 4

       3
        At oral argument the Government asserted that, while Hill was “informed”
by Rodriquez, our misreading of Rodriquez did not actually “dictate” Hill’s
conclusion. We disagree. Our language in Hill makes clear that had it not been for
Rodriquez, we would not have overruled Plakio. See, e.g., Hill, 539 F.3d at 1218–20
(“Under the doctrine of stare decisis, the structure of § 922(g)(1), alone, would not
have been sufficient to overrule our precedent. . . . Intervening Supreme Court
precedent [i.e. Rodriquez], however, overrules our prior approach.”).
       4
         Our decisions in United States v. Coleman, 656 F.3d 1089 (10th Cir. 2011),
and United States v. Romero-Leon, 488 F. App’x 302 (10th Cir. 2012), do not
contradict this holding. First and foremost, the Government does not rely on these
cases. Second, while in Coleman and Romero-Leon we did, post-Carachuri-Rosendo,
rely on Hill and its interpretation of Rodriquez, we never mentioned Carachuri-
Rosendo in either case. “[W]e are generally not bound by a prior panel’s implicit
resolution of an issue that was neither raised by the parties nor discussed by the
panel.” Streu v. Dormire, 557 F.3d 960, 964 (8th Cir. 2009); cf. United States v.
West, 646 F.3d 745, 748 (10th Cir. 2011) (“Mr. West did not raise his challenge to
the restitution award in his initial . . . appeal, and, therefore, we are not bound by the
law of the case with respect to this issue.”). Third, not only was Romero-Leon
unpublished, but it also is arguably distinguishable since the defendant there had
                                                                             (continued...)

                                            13
                                        III.

      The case law surrounding this issue strongly supports our holding. Most

importantly (as noted above) two circuits have already analyzed Carachuri-Rosendo’s

effect in this regard, and both have agreed with our conclusion. Moreover, they have

done so at the prompting of the Supreme Court.

      The initial case comes from the Eighth Circuit and bears a striking

resemblance to our situation. In Haltiwanger, the district court found a defendant’s

prior drug tax stamp conviction under 21 U.S.C. 841(b)(1) was a felony even

though—under Kansas law, again—he could only have received seven months in jail.

See United States v. Haltiwanger, No. CR07–4037, 2009 WL 454978, at *5 (N.D.

Iowa Feb. 23, 2009) (unpublished). The Eighth Circuit, prior to Carachuri-Rosendo,

agreed. See United States v. Haltiwanger, 356 F. App’x 918 (8th Cir. 2009) (per

curiam) (unpublished).     The Supreme Court, however, granted certiorari and

remanded the case, without opinion, “for further consideration in light of Carachuri-

Rosendo.” Haltiwanger v. United States, 131 S. Ct. 81 (2010). On remand, “[u]pon

careful review of Carachuri-Rosendo, including the Court’s clarification and

reiteration of its holding in Rodriquez,” the Eighth Circuit reversed course: “[W]here

a maximum term of imprisonment of more than one year is directly tied to



      4
      (...continued)
aggravating circumstances that would have allowed for a sentence of ten years or
more on his past state convictions. Romero-Leon, 488 F. App’x at 305.

                                         14
recidivism, Carachuri-Rosendo and Rodriquez require that an actual recidivist

finding—rather than the mere possibility of a recidivist finding—must be part of a

particular defendant’s record of conviction for the conviction to qualify as a felony.”

Haltiwanger, 637 F.3d at 883–84. Because Haltiwanger’s record of conviction did

not include recidivism sufficient to expose him to more than one year in prison, “the

hypothetical possibility that some recidivist defendants could have faced a sentence

of more than one year is not enough to qualify Haltiwanger’s conviction as a felony

under 21 U.S.C. § 841(b)(1).” Id. at 884. Judge Beam dissented, writing only: “I

believe that our judgment in this case is not affected by Carachuri-Rosendo.” Id.

      Several months after the Eighth Circuit’s about-face in Haltiwanger, an en

banc Fourth Circuit panel confronted the same issue. There, the district court had

originally classified a defendant’s prior North Carolina drug conviction as a felony

under 21 U.S.C. § 841(b)(1) even though he could have received at most eight

months community service. Simmons, 649 F.3d at 239–41. 5 On appeal, prior to

Carachuri-Rosendo, the Fourth Circuit affirmed. See United States v. Simmons, 340

F. App’x 141 (4th Cir. 2009) (unpublished). Like Haltiwanger, the Supreme Court

granted certiorari and remanded the case, without opinion, “for further consideration

in light of Carachuri-Rosendo.” Simmons v. United States, 130 S. Ct. 3455 (2010).



      5
         Like Kansas, the North Carolina “sentencing structure ties a particular
defendant’s criminal history to the maximum term of imprisonment.” Simmons, 649
F.3d at 244 (quoting Haltiwanger, 637 F.3d at 884).

                                          15
On remand, the same panel concluded Carachuri-Rosendo did not implicate its prior

analysis. See United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). After en

banc rehearing, however, the Fourth Circuit also reversed course. According to an

eight-judge majority, the Fourth Circuit precedent holding similarly to Hill—United

States v. Harp, 406 F.3d 242 (4th Cir. 2005)—was no longer good law under

Carachuri-Rosendo.      See Simmons, 649 F.3d at 239–50.             Explicitly tracking

Haltiwanger, the Fourth Circuit held that “‘where a maximum term of imprisonment

. . . is directly tied to recidivism,’ the ‘actual recidivist finding . . . must be part of

a particular defendant’s record of conviction for the conviction to qualify as a

felony.’” Id. at 244 (quoting Haltiwanger, 637 F.3d at 884). Five dissenters found

the Simmons majority’s holding to be “contrary to the plain language of the relevant

statutes,” which differed “in critical respects” from the immigration statutes at issue

in Carachuri. Id. at 250, 253. More specifically, this dissent argued the phrase

“offense punishable by more than one year imprisonment” clearly calls for an

offense-specific analysis rather than a defendant-specific analysis. Id. at 258. “As

such,” the dissent concluded, “we [should] follow the mandate of Congress to look

to the maximum authorized punishment for any defendant convicted of the offense.”

Id. (emphasis added).

       Although we are not unsympathetic to the dissent’s appeal to plain language,

we are not analyzing this case in a vacuum. Rather, Supreme Court precedent binds

us. And we simply cannot ignore Carachuri-Rosendo’s unambiguous clarification

                                            16
of Rodriquez that directly contradicts our view of Rodriquez in Hill. 6 We also

cannot ignore the Supreme Court’s subsequent remands to the Fourth and Eighth

Circuits with instruction to analyze markedly similar issues “in light of Carachuri-

Rosendo.” Certainly, such remands are not “final determination[s] on the merits” by

the Supreme Court. Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001). They do, however,

indicate the Supreme Court believes there is a “reasonable probability” these circuits

“would reject a legal premise on which [they] relied . . . .” Id.

      Finally, our present holding also comports with the Sixth Circuit’s decision

in United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008). While Pruitt pre-dates

Carachuri-Rosendo, both the Fourth and Eighth Circuits noted that Carachuri-

Rosendo “essentially ratified the Sixth Circuit’s understanding of Rodriguez.”

Haltiwanger, 637 F.3d at 884; see Simmons, 649 F.3d at 244 (“[T]he Sixth Circuit’s

analysis [in Pruitt] now seems clearly correct given the Supreme Court’s subsequent

ruling in Carachuri.”). The Sixth Circuit in Pruitt held, in regard to whether prior

North Carolina convictions made a defendant a career offender under U.S.S.G.



      6
         Furthermore, we agree with much of what the Fourth Circuit majority wrote
in Simmons. For instance, the majority notes that under the dissent’s approach,
virtually all North Carolina offenses—from the most minor misdemeanor to the most
major felony—would be considered felonies for federal purposes. Simmons, 649
F.3d at 249–50. This, the majority opined, “makes a mockery of North Carolina’s
carefully crafted sentencing scheme.” Id. at 249. The same applies here. Taking the
hypothetical worst offender into account, every Kansas crime—severity level I to
severity level X—would be considered punishable by more than one year in prison
for federal law purposes. See Appendix.

                                         17
§ 4B1.1(a), that in light of Rodriquez courts must “consider the defendant’s

particular prior record level—and not merely the worst [possible] prior record

level—in determining whether a conviction was for an offense ‘punishable’ by a term

exceeding one year.” Pruitt, 545 F.3d at 424. Thus, in essence, three circuits have

agreed with our Defendant, whereas none have agreed with the Government. 7

                                        IV.

      In conclusion, Hill—which looked to the hypothetical worst possible offender

to determine whether a state offense was punishable by more than a year in

prison—cannot stand in light of Carachuri-Rosendo. We now hold, in line with our

pre-Hill precedent, that in determining whether a state offense was punishable by a

certain amount of imprisonment, the maximum amount of prison time a particular

defendant could have received controls, rather than the amount of time the worst

imaginable recidivist could have received. As such, Defendant’s prior Kansas

conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a).



      7
          Supplemental authority filed by Defendant calls into question whether the
Government even agrees with its own position on this case. In a Fed. R. App. P.
28(j) letter filed prior to oral argument, Defendant asserted that the United States
Solicitor General agreed before the Supreme Court, in two recent cases from the
Sixth Circuit, that remand was appropriate on this issue because the defendants had
been subjected to erroneous sentences. The Government did not respond to the 28(j)
letter prior to oral argument. At oral argument, the Government did not disagree
with Defendant’s assertion. Rather, the Government stated it was not prepared at
that time to distinguish the Solicitor General’s actions. We have received no follow-
up containing any such distinction. Thus, the Government has seemingly taken
contradictory positions on this issue in different federal courts.

                                         18
The district court’s imposition of a career offender enhancement was therefore in

error and is REVERSED. This case is REMANDED for resentencing.




                                       19
                                                                                  APPENDIX
                                                             SENTENCING RANGE – NONDRUG OFFENSES
       Category                   A                 B                    C                  D                  E                    F                 G                   H                  I
                                3+                   2               1 Person &              1               3+                     2               1                    2+                 1
      Severity Level           Person              Person           1 Nonperson            Person         Nonperson             Nonperson       Nonperson            Misdemeanor       Misdemeanor
            ↓                 Felonies            Felonies            Felonies             Felony          Felonies              Felonies        Felony                                 No Record

                             653               618                  285               267                 246                 226               203                  186               165
             I
                                   620               586                  272               253                 234                 214               195                  176               155
                                         592               554                  258               240                 221                 203               184                  166               147
                             493               460                  216               200                 184                 168               154                  138               123
            II
                                   467               438                  205               190                 174                 160               146                  131               117
                                         442               416                  194               181                 165                 152               138                  123               109
                             247               228                  107               100                 92                  83                77                   71                61
            III
                                   233               216                  102               94                  88                  79                 72                  66                59
                                         221               206                   96                 89                 82                  74                68                   61                55
                             172               162                  75                69                  64                  59                52                   48                43
            IV
                                   162               154                  71                66                  60                  56                50                   45                41
                                         154               144                   68                 62                 57                  52                47                   42                38

                             136               128                  60                55                  51                  47                43                   38                34
             V
                                   130               120                  57                52                  49                  44                41                   36                32
                                         122               114                   53                 50                 46                  41                38                  34                 31

            VI               46                41                   38                36                  32                  29                26                   21                19
                                   43                39                   36                34                  30                  27                24                   20                18
                                          40                37                   34                 32                 28                  25               22                    19                17

                             34                31                   29                26                  23                  19                17                   14                13
            VII
                                   32                29                   27                24                  21                  18                16                   13                12
                                          30                27                   25                 22                 19                  17                15                   12                11
                             23                20                   19                17                  15                  13                11                   11                9
           VIII
                                   21                19                   18                16                  14                  12                10                   10                 8
                                          19                18                   17                 15                 13                  11                 9                    9                 7
                             17                15                   13                13                  11                  10                9                    8                 7
            IX
                                   16                14                   12                12                  10                   9                 8                    7                 6
                                          15                13                   11                 11                  9                   8                 7                    6                 5

             X               13                12                   11                10                  9                   8                 7                    7                 7
                                   12                11                   10                 9                   8                   7                 6                    6                 6
                                          11                10                    9                  8                  7                   6                 5                    5                 5

Probation Terms are:
36 months recommended for felonies classified in Severity Levels 1-5
24 months recommended for felonies classified in Severity Levels 6-7                                                                                          LEGEND

18 months (up to) for felonies classified in Severity Level 8
12 months (up to) for felonies classified in Severity Levels 9-10                                                                                     Presumptive Probation
Postrelease Supervision Terms are:                                   Postrelease for felonies committed before 4/20/95 are:
                                                                                                                                                             Border Box
36 months for felonies classified in Severity Levels 1-4             24 months for felonies classified in Severity Levels 1-6
24 months for felonies classified in Severity Levels 5-6             12 months for felonies classified in Severity Level 7-10                        Presumptive Imprisonment
12 months for felonies classified in Severity Levels 7-10
                                                                                       KSG Desk Reference Manual 2013
                                                                                            Appendix D Page 2
