Man’s 15-Year Prison Term Overturned: One of Previous Crimes Wasn’t Violent

A federal appeals court has overturned an Orange County man’s 15-year prison sentence under a federal statute requiring a minimum penalty of 15 years for career criminals because one of the felon’s three prior convictions did not involve a violent crime.

In issuing its ruling Thursday, a three-judge panel of the U.S. 9th Circuit Court of Appeals upheld the conviction of Kevin J. Sherbondy, 25, of San Clemente, who received 15 years in 1986 for being a convicted felon in possession of a firearm.

Ordinarily, a conviction for gun possession would not bring that severe a penalty. But U.S. District Judge Harry Hupp imposed the sentence two years ago after Los Angeles federal prosecutors pointed out that Sherbondy was eligible for the 15-year minimum term under a revised 1986 federal sentencing law because of a criminal past dating back to 1982.

Hupp reluctantly imposed the sentence.

“In all candor, I wouldn’t have sentenced you to 15 years if Congress had given me the discretion,” the judge told Sherbondy.

He had been arrested in early 1986 after Orange County sheriff’s deputies raided his home and found the gun, which he said was a gift from a friend.

Lawyers for Sherbondy, who is imprisoned at the Lompoc federal penitentiary, appealed, arguing that he would become the kind of career criminal the law was intended to punish.

In an attempt to keep criminals off the streets, Congress passed legislation requiring a minimum 15-year term for any person possessing a firearm who previously had been convicted of three violent crimes or three serious drug offenses.

Because Sherbondy had been convicted three times--twice for robbery and once for threatening a witness--he was prosecuted under the statute.

Broad Application

Attorney Barry A. Bisson had argued that Sherbondy was being unjustly punished and that the state intimidation conviction could not be considered a violent act under California law, because of the statute’s broad application.

In their ruling, the appellate judges agreed.

“We do not believe that a statute that treats actual assault on a person and threatened defacing of property similarly can be said to create a narrow category of criminal offenses which . . . involves a conduct that presents a serious potential risk of physical injury to another,” the ruling said.

Although delighted with the partial victory, Bisson, through a spokeswoman, said he was disappointed that the conviction had not been thrown out.

Assistant U.S. Atty. Kendra S. McNally, who prosecuted the case, was unavailable for comment.