United States v. Hilleland ( 2021 )

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
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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.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.
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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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.”).
2
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).
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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
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