United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter comes before the Court on the Motion to Vacate [Docket
No. 131] pursuant to 28 U.S.C. § 2255 filed by defendant
William James Rucker. Mr. Rucker argues that his sentence
must be vacated based on the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which declared the residual clause of the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. §
2009, a jury convicted Mr. Rucker of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). The Probation Department found that the
defendant's criminal history consisted of the following
Colorado felony convictions: aggravated robbery, criminal
impersonation, attempted possession of a weapon by a previous
offender, distribution/sale of a schedule I or II controlled
substance, possession of a schedule I or II controlled
substance, and attempted second degree assault. Docket No. 74
at 6. Based on the defendant's convictions for aggravated
robbery, distribution/sale of a controlled substance, and
attempted second degree assault, the Probation Department
determined that the defendant was an armed career criminal.
Id. As a result, his offense level was 33.
Id. The Probation Department calculated that, with
an offense level of 33 and a criminal history category of V,
Mr. Rucker's advisory Guideline sentencing imprisonment
range was 210 to 262 months, which included the 15 year
minimum sentence under the ACCA. Neither Mr. Rucker nor the
United States objected to the Guideline calculation. At the
sentencing hearing on April 5, 2010, the Court agreed with
the Probation Department's calculation of the Guideline
range. There was no analysis by the Probation Department or
by the Court concerning which clause of the statute Mr.
Rucker's attempted second degree assault conviction fit.
The Court sentenced Mr. Rucker to 210 months imprisonment.
Rucker does not challenge the Probation Department's
categorization of his convictions for aggravated robbery and
distribution/sale of a controlled substance as qualifying
convictions under the ACCA. Mr. Rucker does, however, claim
that his conviction for attempted second degree assault can
no longer serve as a predicate offense under the ACCA after
Johnson. Specifically, Mr. Rucker argues that
Johnson invalidated the residual clause of the ACCA,
which defined a "violent felony" to include a
felony that "otherwise involves conduct that presents a
serious potential risk of physical injury to another."
18 U.S.C. § 924(e)(2)(B)(ii). The other two clauses of
the statute that potentially qualify a conviction as a
"violent felony" are the "enumerated
offense" clause and the "elements" clause. The
enumerated offense clause lists the following offenses as
being violent felonies - burglary, arson, and extortion - or
a crime that "involves use of explosives."
Id. Both parties agree that Mr. Rucker's
attempted second degree assault conviction does not fit
within the enumerated offense clause.
question raised by Mr. Rucker's motion is whether his
attempted second degree assault conviction qualifies as a
"violent felony" under the elements clause. The
elements clause classifies an offense as a violent felony if
it "has as an element the use, attempted use, or
threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B)(i). In order to
determine whether Mr. Rucker's conviction for attempted
second degree assault is a violent felony, the Court applies
the categorical approach, which focuses on the elements of
the crime rather than the underlying facts.Descamps v.
United States, 133 S.Ct. 2276, 2283 (2013). Federal law
defines the meaning of the statutory language "the use,
attempted use, or threatened use of physical force against
the person of another, " while Colorado law defines the
substantive elements of the offense. United States v.
Harris, 844 F.3d 1260, 1263-64 (10th Cir. 2017). Based
on Johnson v. United States, 559 U.S. 133, 140
(2010), "physical force" means violent force or
force capable of causing physical pain or injury to another
person. Harris, 844 F.3d at 1266.
Court will first look to the elements of the underlying
crime, second degree assault. The elements of second degree
assault with a deadly weapon under Colo. Rev. Stat. §
18-3-203(1)(b) are (1) with intent to cause bodily injury to
another person; (2) he or she caused such injury; (3) by
means of a deadly weapon. People v. Rivas, 77 P.3d
882, 888 (Colo.App. 2003). Mr. Rucker and the United States
have differing views on whether second degree assault under
§ 203(1)(b) involves violent force and whether such
crime involves "the use, attempted use, or threatened
use" of such force.
Docket No. 131 at 4-7; Docket No. 137-1 at 11-15. However,
even assuming that the government is correct that a
conviction for second degree assault involves both specific
intent to cause bodily injury and the use or threatened use
of physical force, see Docket No. 137-1 at 15, the
Court must still determine whether the fact that Mr. Rucker
was convicted of an attempt to commit that crime changes the
analysis. Because this issue is dispositive of Mr.
Rucker's motion, the Court turns to that issue now.
Colorado law, criminal attempt is defined, in pertinent part,
(1) A person commits criminal attempt if, acting with the
kind of culpability otherwise required for commission of an
offense, he engages in conduct constituting a substantial
step toward the commission of the offense. A substantial step
is any conduct, whether act, omission, or possession, which
is strongly corroborative of the firmness of the actor's
purpose to complete the commission of the offense. Factual or
legal impossibility of committing the offense is not a
defense if the offense could have been committed had the
attendant circumstances been as the actor believed them to
be, nor is it a defense that the crime attempted was actually
perpetrated by the accused.
Colo. Rev. Stat. § 18-2-101(1). As explained in
People v. Lehnert, 163 P.3d 1111, 1113 (Colo. 2007),
A person commits criminal attempt in this jurisdiction if,
acting with the kind of culpability otherwise required for
commission of a particular crime, he engages in conduct
constituting a substantial step toward the commission of that
crime. See § 18-2-101(1), C.R.S. (2006). The statute
immediately makes clear that by "substantial step"
it means any conduct that is strongly corroborative of the
actor's criminal objective. See Id. While the
remainder of the statute speaks to various related matters,
such as the treatment of factual and legal impossibility,
complicity, and abandonment, see § 18-2-101(2)
to-101(9), C.R.S. (2006), the statutory crime of criminal
attempt is complete upon engaging, with the requisite degree
of culpability, in conduct that "is strongly
corroborative of the firmness of the actor's purpose to
complete the commission of the offense."
court noted that, before the attempt statute in Colorado was
amended in 1971 to require that the substantial step strongly
corroborate the defendant's purpose to complete the
underlying crime, the court had nevertheless "implicitly
acknowledged that acts in preparation for the last proximate
act, at some point attain to criminality
themselves." Id. at 1114. With adoption of the
Rather than leaving to the fact-finder (as well as the court
evaluating the sufficiency of evidence) the task of resolving
the policy choices inherent in deciding when acts of
preparation have become criminal, the statutory requirement
of a substantial step simply calls for a determination
whether the actor's conduct strongly corroborates a
sufficiently firm intent on his part to commit the specific
crime he is charged with attempting. See §
Id. at 1115. Thus, the court held that substantial
steps could include a variety of different kinds of conduct,
the touchstone being whether they were "strongly
corroborative." Id. However, ...