United States v. Lozado

          ORDER

          Philip A. Brimmer, Chief United States District Judge.

         This 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).

         On 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.^[1] 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.

         Mr. 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.

         The United States opposes Mr. Lozado's § 2255 petition.

         I. ANALYSIS

         The 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).

         The 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.

         A. Second Degree Assault - Deadly Weapon

         In 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. § 18-3-203(1).^[2]

         Mr. 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.

         Mr. 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.

         Finally, 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 the ACCA.

         B.Robb ...