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Omari Davis appealed his conviction of violating Section 922(g)(1), which applies only to a possessor of a firearm who had previously been convicted of a crime punishable by imprisonment for a term exceeding one year.
In 2019, Davis pleaded guilty to possession with intent to distribute an imitation controlled substance (which turned out to be baking soda) in violation of Colorado law. The district court determined that this Colorado conviction satisfied the prior-conviction requirement of Section 922(g)(1). A panel of the 10th Circuit Court of Appeals respectfully disagreed in an opinion last week.
The appeals court held that the conviction wasn’t punishable by imprisonment for a term exceeding one year because there is no fact in the record of conviction that could have permitted the state court to impose a sentence above the presumptive maximum of one year’s imprisonment.
The 10th Circuit vacated Davis’s conviction.
The appeals court noted Davis was convicted of a level-4 drug felony (Colorado’s lowest-level drug felony) for distributing an imitation controlled substance. For level-4 felonies, Colorado’s drug-sentencing statute sets a presumptive sentencing range of six months to one year; but if there are aggravating circumstances, a defendant may be sentenced within an aggravated range of one to two years’ imprisonment.
Several aggravating circumstances — such as committing the offense while on bond or on parole — are specified in the statute. See id. § 18-1.3-401.5(10)(a), (11). But, as relevant on appeal, a sentencing court also may impose an aggravated sentence if it makes “specific findings on the record, detailing the aggravating circumstances that constitute the reasons for varying from the presumptive sentence.” The aggravating circumstances — which may be elicited at the sentencing hearing, appear in the presentence report, or be agreed to by the parties — must “support a different sentence that better serves the purposes of [the state criminal] code with respect to sentencing.”
In Davis’s plea agreement, the appeals court noted the boilerplate paragraphs regarding aggravated sentences were crossed out, and the parties agreed upon a sentence of two years’ probation. Davis made no factual admissions in the plea agreement beyond the elements of the offense. After speaking with Davis about his circumstances, the state court accepted his plea and sentenced him to two years’ probation. It made no findings regarding aggravating circumstances.
In 2022, Davis was indicted in the U.S. District Court for the District of Colorado on two counts of possessing a firearm as a convicted felon, in violation of Section 922(g)(1). Davis moved to dismiss the charges on the grounds that his 2019 conviction for distributing an imitation controlled substance was not a predicate offense under Section 922(g)(1) because it carried a presumptive maximum sentence of one year, and Section 922(g)(1) violated the Second Amendment. The district court denied the motions. It didn’t identify any particular aggravating circumstances justifying an enhancement of the state sentence but instead concluded that under Colorado’s sentencing scheme, courts always have “discretion to give a sentence that is greater than the presumptive range.”
Davis pleaded guilty while reserving his right to appeal the denial of his motions and was sentenced to 48 months in prison.