ORDER GRANTING PANEL REHEARING
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 Jan
*1214
uary 15, 2008 opinion,
United States v. Hill,
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,
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 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 *1215 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 overcrowding by making a distinction between more serious and less serious offenders.”
State v. Gould,
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 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,
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 *1216 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.
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-A716(h),
21-4718;
see also Blakely v. Washington,
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,
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.
That “different case” alluded to in
Norris
arose in
United States v. Plakio,
where
*1217
the defendant was convicted of being a felon in possession of a firearm in violation of § 922(g)(1).
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,
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,
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, *1218 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 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,
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), -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 face a sentence greater than one year was irrelevant to our analysis.
See Plakio,
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 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: “[sjection 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:
*1219 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,
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(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 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,
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,
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,
Unlike the
R.L.C.
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,
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).
Notes
. A separate grid is used for drug offenses. See Kan. Stat. Ann. § 21-4705.
. 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,
. 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.