United States District Court, D. Colorado
A. Brimmer, Chief United States District Judge.
matter is before the Court on defendant's Motion to
Vacate Pursuant to 28 U.S.C. § 2255 [Docket No. 131].
Mr. Lozado challenges his sentence in this case pursuant to
the Supreme Court's ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015).
November 20, 2013, Mr. Lozado was convicted at trial of one
count of possession of ammunition by a prohibited person in
violation of 18 U.S.C. § 922(g)(1). Docket No. 78. The
Court determined that Mr. Lozado had a base offense level of
24 under U.S.S.G. § 2K2.1(a)(1). Docket No. 85 at 7. The
Court also found that the defendant was an armed career
criminal under 18 U.S.C. § 924(e) (the Armed Career
Criminal Act, or “ACCA”) based on at least three
previous felony convictions under Colorado law for crimes of
violence, to wit, Second Degree Assault - Deadly Weapon,
Robbery, Second Degree Burglary of a Building, Felony
Menacing, and Theft From a Person. Id. The Court
determined that the defendant was in Criminal History
Category IV. As a result, the guideline range was 235 to 293
months imprisonment. Mr. Lozado did not object to the
calculation of his guideline range or to the Probation
Department's conclusion that he had three convictions for
crimes of violence. The Court sentenced Mr. Lozado to 235
months imprisonment on March 12, 2014. Docket No. 92. Mr.
Lozado appealed his conviction, but not the calculation of
the sentence. Docket No. 128 at 2. The court of appeals
affirmed his conviction. Id.
Lozado claims that, given the invalidation of the residual
clause in § 924(e)(2)(B) in Johnson, only one
of his five previous felony convictions under Colorado law
can be considered a “crime of violence” and, as a
result, the ACCA does not apply and his statutory maximum
sentence would have been 120 months imprisonment. Docket No.
131 at 1-2.
United States opposes Mr. Lozado's § 2255 petition.
United States argues that there is no Johnson error
because Mr. Lozado has three felony convictions that are
“crimes of violence” under the
“elements” clause of § 924(e)(2)(B).
United States concedes that Mr. Lozado's convictions for
Theft from a Person and Second Degree Burglary of a Building
do not qualify as “crimes of violence.”
See Docket No. 134 at 5; Docket No. 136 at 2. Mr.
Lozado concedes that Felony Menacing qualifies as a crime of
violence. See Docket No. 131 at 2. Thus, the
remaining issues are whether Mr. Lozado's convictions for
Second Degree Assault - Deadly Weapon and Robbery are crimes
of violence under Colorado law.
Second Degree Assault - Deadly Weapon
1997, Mr. Lozado was convicted of Second Degree Assault -
Deadly Weapon. Docket No. 96 at 8-9. As relevant here, a
person “commits the crime of assault in the second
degree if . . . (b) [w]ith intent to cause bodily injury to
another person, he or she causes such injury to any person by
means of a deadly weapon; or . . . (d) [h]e recklessly causes
serious bodily injury to another person by means of a deadly
weapon.” Colo. Rev. Stat. §
Lozado first argues that this offense cannot be a crime of
violence because it can be committed
“recklessly.” See Docket No. 131 at 5
(citing Colo. Rev. Stat. § 18-3-203(1)(d)). Mr. Lozado
relies on United States v. Zuniga-Soto, 527 F.3d
1110 (10th Cir. 2008), for the proposition that an offense
that can be committed recklessly does not involve the actual,
attempted, or threatened use of force. See id.
(citing Zuniga-Soto, 527 F.3d at 1124). However,
Zuniga-Soto no longer reflects the law on this
issue. See United States v. Bettcher, 911 F.3d 1040,
1045 (10th Cir. 2018). In Voisine v. United States,
136 S.Ct. 2272 (2016), the Supreme Court concluded that a
“use” of physical force can be satisfied by a
mens rea of recklessness, rather than just purpose or
knowledge. See Voisine, 136 S.Ct. at 2278-80. The
Tenth Circuit has applied Voisine in the ACCA
context, holding that “a statute requiring proof only
that the defendant acted willfully and with reckless
disregard for the risk posed by that act to another person
may categorically involve the use of physical force.”
See United States v. Pam, 867 F.3d 1191, 1208 (10th
Cir. 2017). And the Bettcher court explicitly
concluded that Voisine “overrides [the Tenth
Circuit's] contrary precedents classifying reckless harm
with negligent or accidental harm”. See
Bettcher, 911 F.3d at 1046 (“Voisine
proved Zuniga-Soto's interpretation of
Leocal [v. Ashcroft, 543 U.S. 1 (2004), ]
wrong”). Thus, even though Mr. Lozado could be
convicted of Second Degree Assault - Deadly Weapon as a
result of reckless conduct, reckless conduct or mens rea is
not inconsistent with the use of physical force. Mr.
Lozado's first argument therefore fails.
Lozado next argues that “bodily injury” under the
Colorado statute could include impairment of a mental
condition. See Docket No. 131 at 5 (citing Colo.
Rev. Stat. §§ 18-3-203(b) and 18-1-901(c)). Mr.
Lozado claims that “emotional distress is not the
equivalent of the use of physical force.” See
id. (citing Malta-Espinoza v. Gonzales, 478
F.3d 1080, 1084 (9th Cir. 2007)). However,
Malta-Espinoza arose in the context of the
definition of a “crime of violence” in 18 U.S.C.
§ 16(b), and has not been extended to the § 924(e)
context by the Ninth Circuit post-Johnson. Cf.
United States v. Werle, 877 F.3d 879, 883-84 (9th Cir.
2017) (holding that Malta-Espinoza does not apply to
the force clause in § 4B1.2(a)(1) of the U.S. Sentencing
Guidelines). Defendant cites no case suggesting in this
context that physical force that causes bodily injury,
defined by the statute as mental impairment, does not meet
the force requirement of Johnson. Even if Mr. Lozado
were convicted based on causing a “mental disturbance
or impairment, ” that bodily injury would necessarily
require the use of physical force. Thus, Mr. Lozado's
second argument also fails.
Mr. Lozado argues that a person may be convicted of
second-degree assault through the use of non-physical force
because one can cause bodily injury without the application
of physical force. See Docket No. 131 at 6 (citing
United States v. Rodriguez-Enriquez, 518 F.3d 1191,
1194 (10th Cir. 2008)). In Rodriguez-Enriquez, the
Tenth Circuit stated that ACCA physical force required
“mechanical impact” as opposed to, for example,
poison. See Rodriguez-Enriquez, 518 F.3d at 1194.
However, in United States v. Castleman, 572 U.S. 157
(2014), the Supreme Court concluded that “[i]t is
impossible to cause bodily injury without applying force in
the common-law sense.” See id. at 170. The
Court specifically rejected the notion that poison was not a
use of force, noting that the “use of force [in
poisoning] is not the act of sprinkling the poison; it is the
act of employing poison knowingly as a device to cause
physical harm.” See id. at 171 (internal
quotations and brackets removed). The Tenth Circuit
subsequently held that, in light of Castleman, the
logic of Rodriguez-Enriquez is “no longer
viable.” See United States v. Ontiveros, 875
F.3d 533, 536 (10th Cir. 2017) (holding that, under Colorado
law, second-degree assault qualifies as a crime of violence).
Accordingly, Mr. Lozano's third argument fails, and his
conviction for Second Degree Assault - Deadly Weapon
qualifies as a “violent felony” for purposes of