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United States v. Lozado

No. 19-1222. D.Colo. Judge McHugh. 28 USC § 2255 Motion to Vacate Sentence—Presentence Report—Armed Career Criminal Act—Predicate Violent Felony Convictions—Classification of Violent Felony—Harmless Error.

July 27, 2020

In 2013, defendant was found guilty of possessing ammunition as a previously convicted felon. The presentence report (PSR) recommended that he be sentenced under the Armed Career Criminal Act (ACCA) based on five predicate violent felony convictions from Colorado: (1) a juvenile conviction for second degree assault with a deadly weapon, and adult convictions for (2) robbery, (3) second degree burglary of a building, (4) felony menacing, and (5) theft from a person. Application of the ACCA changed the statutory maximum penalty of 10 years to a statutory minimum penalty of 15 years. The district court largely adopted the PSR and sentenced defendant to 235 months of imprisonment but did not specify whether it relied on the ACCA’s residual clause to classify defendant’s burglary conviction as a violent felony.

After defendant’s sentencing, the US Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), in which it invalidated the “residual clause” of the ACCA’s definition of “violent felony.” Defendant then filed a motion to vacate his sentence under 28 USC § 2255. The district court denied the motion, holding that the convictions for burglary and theft from a person no longer qualified as ACCA predicates but that the remaining convictions for robbery, felony menacing, and assault still qualified as violent felonies under the ACCA and thus the enhancement still applied.

On appeal, defendant contended that Colorado second degree assault is not categorically a violent felony because a defendant can be convicted for causing mental injuries alone. He conceded that the convictions for robbery and felony menacing qualified as violent felonies but argued that because these were the only convictions qualifying as ACCA predicates, the sentencing enhancements didn’t apply. The government conceded that the assault conviction should not have been counted as an ACCA predicate but argued that the burglary conviction also qualified as a violent felony. Application of the ACCA requires at least three prior violent felony offenses. Thus, the issue on appeal was whether the Colorado burglary conviction could have been classified as a violent felony at the time of sentencing without reference to the residual clause.

Here, defendant demonstrated that the court relied on the residual clause in classifying the burglary conviction as a violent felony. His theft-from-a-person conviction was likewise based on the residual clause, and his juvenile assault conviction does not qualify as a violent felony under the ACCA. Because defendant had only two prior convictions that could qualify as ACCA predicates, the court erred, and the error was not harmless.

The denial of § 2255 relief was reversed and the case was remanded for resentencing.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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