The Denver-based federal appeals court ruled last week that a man sentenced to 48 months in prison for being a felon in possession of a firearm was not, in fact, prohibited from having a gun.

Prosecutors indicted Omari Davis for a violation of the federal prohibition on possessing a gun after being convicted of a “crime punishable by imprisonment for a term exceeding one year.” There was no dispute that Davis had a prior low-level felony conviction in Colorado for intending to distribute an imitation controlled substance — baking soda.

However, Davis and the government disputed whether his offense was “punishable” by more than a year in prison. State law authorizes a sentencing range of six months to one year, but judges may impose longer sentences if they conclude “aggravating circumstances” exist. In Davis’ case, his judge did not find any aggravating circumstance.

Although the federal judge assigned to Davis’ gun possession case believed his drug offense was punishable by more than a year because of the possibility of a longer sentence, the U.S. Court of Appeals for the 10th Circuit decided that was the wrong way of looking at things.

“The maximum ‘punishable’ sentence,” wrote Judge Harris L Hartz in the May 21 opinion, “is the maximum sentence the state court could have imposed on Mr. Davis, not a hypothetical defendant.”

Because the three-judge appellate panel noted Davis’ state judge had no grounds to impose an aggravated sentence of longer than a year for his drug offense, it overturned his federal gun conviction.

Originally, the defense argued Davis could not be indicted for being a felon in possession of a firearm because he did not have a prior conviction punishable by more than a year in prison. Because there were no aggravating factors that could have qualified him for a longer sentence, Davis maintained his state trial judge was obligated to sentence him for no more than a year.

The government countered that Colorado law did permit Davis’ trial judge to impose an aggravated sentence. Therefore, his offense was “punishable” by more than a year, even if the actual punishment was lower.

At a hearing in June 2023, U.S. District Court Senior Judge Raymond P. Moore agreed with the government that the possibility a state judge could have sentenced Davis more harshly was key.

“This system permits the court to make sentences outside of the presumptive range. Admittedly, the court must explain itself. Admittedly, the court must make a statement based on things that are there in the record,” Moore said. “If it were ultimately a true mandatory system, I would agree with the defendant. But it is not. And, therefore, the motion to dismiss is denied.”

Davis appealed his two-year federal sentence and conviction for the gun offense, arguing his state judge actually was mandated to sentence him to less than a year because there were no aggravating factors.

“Mr. Davis did not face a sentence of more than a year. That is all that matters,” said public defender Jon W. Grevillius during oral arguments.

“The question here is not whether the trial court found an aggravating circumstance,” countered Assistant U.S. Attorney Rajiv Mohan, “but whether it could have.”

The 10th Circuit panel agreed with Grevillius.

“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,” wrote Hartz. “It is not enough that some hypothetical defendant convicted of the same crime could have been sentenced to more than a year in prison.”

The case is United States v. Davis.