Appellate Case: 23-1367 Document: 72-1 Date Filed: 05/21/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 21, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1367
OMARI DAVIS,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CR-00144-RM-1) _________________________________
Jon W. Grevillius, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Officer of the Federal Public Defender, Denver, Colorado, for Defendant–Appellant.
Rajiv Mohan, Assistant United States Attorney (Matthew T. Kirsch, Acting United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff–Appellee. _________________________________
Before HARTZ, PHILLIPS, and FEDERICO, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
Defendant Omari Davis appeals his conviction on the charge of violating 18
U.S.C. § 922(g)(1), which applies only to a possessor of a firearm who had Appellate Case: 23-1367 Document: 72-1 Date Filed: 05/21/2025 Page: 2
previously been “convicted . . . of . . . a crime punishable by imprisonment for a term
exceeding one year.”
In 2019 Defendant had 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 § 922(g)(1). We respectfully disagree. We hold
that the conviction was not 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. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate
Defendant’s conviction.
I. BACKGROUND
Defendant was convicted under Colo. Rev. Stat. § 18-18-422(1)(a) 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. See id. § 18-1.3-401.5(2)(a).1 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
1 Although § 18-1.3-401.5 was amended in 2022, the subsections relevant to Defendant have not changed.
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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.” Id. § 18-1.3-
401.5(9). 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.” Id. § 18-1.3-401.5(8).
In Defendant’s plea agreement the boilerplate paragraphs regarding aggravated
sentences were crossed out, and the parties agreed upon a sentence of two years’
probation. Defendant made no factual admissions in the plea agreement beyond the
elements of the offense.
At the hearing where the state court accepted the plea agreement and sentenced
Defendant, the court noted that it was “a bit unusual to have a distribution case pled
to a [level-4 drug felony] with probation” and asked if anybody wanted to make a
“record . . . with regard to that?” R., Vol. I at 48. The prosecutor explained that the
Defendant did not “have any other felony record” and that “on his history,” probation
was “appropriate.” Id. at 48–49. After speaking with Defendant about his
circumstances, the court accepted his plea and sentenced him to two years’ probation.
It made no findings regarding aggravating circumstances.
In 2022 Defendant was indicted in the United States District Court for the District
of Colorado on two counts of possessing a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). Defendant moved to dismiss the charges on the grounds that (1) his
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2019 conviction for distributing an imitation controlled substance was not a predicate
offense under § 922(g)(1) because it carried a presumptive maximum sentence of one
year, and (2) § 922(g)(1) violated the Second Amendment. The district court denied the
motions. It did not 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.” Id., Vol. III at 152. Defendant pleaded guilty while reserving his
right to appeal the denial of his motions and was sentenced to 48 months’ imprisonment.
II. DISCUSSION
We review de novo whether Defendant was convicted of a crime punishable by
imprisonment of more than one year. See United States v. Brooks, 751 F.3d 1204, 1209
(10th Cir. 2014).
We begin with the text of the state drug-sentencing statute, interpreting the
language of the statute in accordance with Colorado law. See United States v.
Venjohn, 104 F.4th 179, 185 (10th Cir. 2024). The relevant provisions of that statute
are as follows:
(8) In imposing a sentence to incarceration, the court shall impose a definite sentence that is within the presumptive ranges set forth in subsection (2) of this section; except that, for level 2, level 3, and level 4 drug felonies, the court may sentence the defendant in the aggravated range if it concludes aggravating circumstances exist. The aggravating circumstances must be based on evidence in the record of the sentencing hearing, the presentence report, and any factors agreed to by the parties and must support a different sentence that better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5.
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(9) In all cases, except as provided in subsection (10) of this section, in which a sentence that is not within the presumptive range is imposed, the court shall make specific findings on the record, detailing the aggravating circumstances that constitute the reasons for varying from the presumptive sentence.
Colo. Rev. Stat. § 18-1.3-401.5(8)–(9) (emphasis added).
The first sentence of Section 8 states that courts shall sentence in the
presumptive range, which is six months to one year for level-4 drug felonies. The
presumptive range is the default unless additional requirements are met. The court
may elevate a defendant’s sentence into the aggravated range, but only if it makes
“specific findings on the record detailing the aggravating circumstances,” which
“must be based on evidence in the record of the sentencing hearing, the presentence
report, and any factors agreed to by the parties.” Id.
The government argues that any conviction for which sentence is imposed
under § 18-1.3-401.5 is punishable by more than a year’s imprisonment because the
sentencing court can “rely on any fact” or even “its own judgment” to aggravate a
sentence. Aplee. Br. at 5. It argues that “even though the parties did not agree to any
aggravating circumstances and the trial court found none to justify an aggravated
sentence,” Defendant could still have been imprisoned for more than a year based
solely on his admissions to the elements of the offense in his plea agreement. Id. In
other words, the government declares that “there were no substantive constraints on
what circumstances [the sentencing court] could consider aggravating so long as they
were tied to the purposes of sentencing.” Id. at 10–11 (emphasis added).
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The government’s interpretation of the statutory language is not unreasonable.
But it is not the interpretation adopted by the Colorado Supreme Court. To ensure
that the Colorado general felony-sentencing statute, Colo. Rev. Stat. § 18-1.3-401,
complies with the United States Constitution as interpreted by the Supreme Court of
the United States in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that
facts, other than a prior conviction, cannot increase the maximum sentence unless
they are admitted by the defendant or found by a jury) and Blakely v. Washington,
542 U.S. 296, 305 (2004) (applying Apprendi to state sentencing-guideline regimes),
the Colorado Supreme Court in Lopez v. People, 113 P.3d 713 (Colo. 2005), imposed
two constraints on when aggravating circumstances can be used to enhance a
sentence. First, to sentence within the aggravated range, the court must identify some
additional aggravating fact “beyond the bare elements of the offense.” Id. at 727
(internal quotation marks omitted); see Mountjoy v. People, 430 P.3d 389, 393, as
modified on denial of reh’g (Colo. 2018) (“[F]or sentences based solely on the facts
reflected in a conviction, the maximum sentence that a trial court may impose is the
maximum of the presumptive range, not the aggravated range.”). Second, that
aggravating fact must fit within one of four categories: “(1) facts found by a jury
beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a
judge after the defendant stipulates to judicial fact-finding for sentencing purposes;
and (4) facts regarding prior convictions.” Lopez, 113 P.3d at 719; but see Mountjoy,
430 P.3d at 393 n.2 (casting doubt on scope of category (4)).
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We recognize that Lopez and Mountjoy were interpreting Colorado’s general
felony-sentencing statute, Colo. Rev. Stat. § 18-1.3-401, rather than the drug-
sentencing statute under which Defendant was sentenced, id. § 18-1.3-401.5. But the
relevant provisions of the two statutes are quite similar. See id. § 18-1.3-401(6), (7).2
And, more importantly, the above restrictions were imposed not because of the
language of the specific statute, but because of constitutional constraints declared by
the United States Supreme Court. We have no doubt that the Colorado Supreme
Court would impose the same constraints on the drug-sentencing statute. See Taylor
v. Powell, 7 F.4th 920, 932 (10th Cir. 2021) (“If the state’s highest court has not
2 Section 18-1.3-401 provides in relevant part:
(6) In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.
(7) In all cases, except as provided in subsection (8) of this section, in which a sentence which is not within the presumptive range is imposed, the court shall make specific findings on the record of the case, detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentence.
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decided an issue, our task is to predict how it would rule.” (internal quotation marks
omitted)).
Thus, contrary to the government’s brief on appeal, there must be some
additional aggravating fact beyond the elements of the offense for a defendant to be
eligible for a sentence in the aggravated range. And for Defendant to be “punishable
by imprisonment for a term exceeding one year,” 18 U.S.C. § 922(g)(1) (emphasis
added), there must have been such a fact in his case. It is not enough that some
hypothetical defendant convicted of the same crime could have been sentenced to
more than a year in prison. “We consider the possibility of a prison term of more than
a year for [Defendant himself], not a hypothetical defendant.” United States v. Hisey,
12 F.4th 1231, 1236 (10th Cir. 2021) (emphasis omitted). That is, “[a] crime is
punishable by the maximum amount of prison time a particular defendant could have
received.” Id. (internal quotation marks omitted); see Brooks, 751 F.3d at 1213 (“[I]n
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.”).
Were there any permissible aggravating facts outside the elements of the
offense in this case? We think not. The Colorado judge certainly identified no
aggravating facts, and the plea agreement stipulated that none were present. The state
prosecutor apparently did not think it was necessary to identify an aggravating
circumstance, and all we can find in the government’s brief before us that might
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suffice is a passing reference to a prior misdemeanor conviction of Defendant’s,
which had been mentioned during his state-court plea/sentencing hearing. The prior
misdemeanor was discussed at the hearing only in the context of determining where
he could serve the probation to which he was sentenced.
That mere mention is not enough. To be sure, under Colorado law the fact of a
prior conviction may be relied upon to enhance a sentence, even if that fact is not found
by a jury. See Lopez, 113 P.3d at 730. The prior misdemeanor therefore had the potential
to “open[] the so-called aggravated sentencing range” and thus subject Defendant to a
sentence of more than one year. People v. Lopez, 148 P.3d 121, 124 (Colo. 2006). But a
conviction lurking in the background will not suffice. The Colorado judge reached no
conclusion that the conviction would constitute an aggravating circumstance. No surprise,
because the parties to the state-court proceeding agreed that there was no aggravating
circumstance. One would think that the absence of such a determination by the Colorado
judge would establish that this particular defendant could not be sentenced to more than
one year of imprisonment. But we need not resolve whether the Colorado judge’s failure
to identify the prior conviction as an aggravating circumstance in itself precludes the
federal sentencing court from determining that Defendant was punishable by more than a
year in prison. We must reverse in any event because the law is settled that the
misdemeanor conviction cannot be considered in the federal proceedings.
The federal district court cannot, “ex post, enhance the state offense of record just
because facts known to it would have authorized a greater penalty under either state or
federal law.” Carachuri-Rosendo v. Holder, 560 U.S. 563, 576–77 (2010). In other
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words, it is not enough for a defendant to be a recidivist. In Brooks we declared that, per
Carachuri-Rosendo, “a recidivist finding”—like the prior misdemeanor in this case—can
“set the maximum term of imprisonment” only if that recidivist finding “is a part of the
[state] record of conviction.” 751 F.3d at 1210 (internal quotation marks omitted).
Carachuri-Rosendo is illustrative and instructive. Petitioner was an alien who had
been found removable and sought discretionary relief from removal under 8 U.S.C.
§ 1229b(a). See Carachuri-Rosendo, 560 U.S. at 566. The government argued that he was
ineligible for relief under § 1229b(a)(3) because he had previously been convicted of an
“aggravated felony.” Id. at 570 (internal quotation marks omitted). The definition of
aggravated felony for this purpose is “a crime for which the ‘maximum term of
imprisonment authorized’ is ‘more than one year.’” Id. at 567 (quoting 18 U.S.C.
§ 3559(a)). Petitioner had two prior Texas misdemeanors, one from 2004 and one from
2005. See id. at 566, 570. He was sentenced to just ten days in jail for the 2005
misdemeanor, see id. at 566; but because of his prior 2004 conviction, he could have been
subject to a sentencing enhancement under Texas or federal law exposing him to more
than one year in prison, see id. at 570–71. The Texas prosecutor elected not to seek that
enhancement. See id. at 571. The government contended that Petitioner had been
convicted of an aggravated felony because he could have received a sentence of more
than one year if he had been prosecuted in federal court. See id. at 570.
The Supreme Court rejected the government’s “hypothetical approach” because
“Carachuri-Rosendo’s record of conviction [for the 2005 offense] contain[ed] no finding
of the fact of his prior [2004] drug offense.” Id. at 576 (emphasis added and internal
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quotation marks omitted). It explained that “when the recidivist finding . . . 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
[greater than one year] . . . .” Id. at 577 n.12 (citation and internal quotation marks
omitted). The Court refused to “permit a federal immigration judge to apply his own
recidivist enhancement after the fact.” Id. at 579–80. It reversed the Fifth Circuit for
“focus[ing] on facts known to the immigration court that could have but did not serve as
the basis for the state conviction and punishment.” Id. at 580.
We first followed Carachuri-Rosendo’s record-of-conviction restriction when
considering whether a prior state conviction was “punishable by imprisonment for a term
exceeding one year” for purposes of a sentencing enhancement under U.S.S.G. § 4B1.2.
Brooks, 751 F.3d at 1208, 1211 (ellipsis and internal quotation marks omitted) (limiting
judicial fact-finding to the record of conviction). We then followed Brooks to apply the
same restriction in the present context. See Hisey, 12 F.4th at 1236 (limiting judicial fact-
finding to the record of conviction in § 922(g)(1) proceeding).
In determining whether Defendant was punishable in the aggravated range, we are
bound, then, by the documents in his record of conviction. The record of conviction
includes recidivist findings that are “apparent from the sentence itself,” “part of the
judgment of conviction,” or included in “the formal charging document.” Carachuri-
Rosendo, 560 U.S. at 577 n.12 (internal quotation marks omitted). We may also consider
“statement[s] by the trial judge [during the plea colloquy] regarding the maximum
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penalty,” United States v. Rodriguez, 553 U.S. 377, 389 (2008), and “the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant,” Shepard v. United States, 544 U.S.
13, 26 (2005).
The government has not established that Defendant’s prior misdemeanor appeared
in his record of conviction. It is certainly not “apparent from the sentence itself,” nor is it
“part of the judgment of conviction” or “the formal charging document.” Carachuri-
Rosendo, 560 U.S. at 577 n.12 (internal quotation marks omitted). It did not appear in the
plea agreement, and the sentencing court never stated that Defendant could be subject to
a sentence of more than one year, as is required under Colorado law. See Colo. Rev. Stat.
§ 16-7-207(2)(d); Colo. R. Crim. P. 11(b)(4). Although the prior misdemeanor was noted
(not by Defendant) during the state-court plea/sentencing hearing, that mention had
nothing to do with the factual basis for the plea. We are left with nothing more than
Defendant’s admissions to the bare elements of the imitation-controlled-substance
offense, which we have already established cannot authorize an aggravated sentence
under Colorado’s sentencing scheme.
We conclude that Defendant’s Colorado conviction was not punishable by more
than one year in prison, and therefore does not satisfy the requirements for conviction
under 18 U.S.C. § 922(g)(1).3
3 Because we reverse Defendant’s conviction on this ground, we need not address his Second Amendment arguments (which are foreclosed at any rate by our decision in Vincent v. Bondi, 127 F.4th 1263, 1264 (10th Cir. 2025)).
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III. CONCLUSION
We VACATE Defendant’s conviction. Mandate shall issue forthwith.