United States of America v. Gregory Lozado

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY LOZADO,
Defendant - Appellant.
No. 20-1420
(D.C. No. 1:13-CR-00151-PAB-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, KELLY, and CARSON, Circuit Judges.
_________________________________
Defendant-Appellant Gregory Lozado was convicted of possessing ammunition as
a previously convicted felon, 18 U.S.C. § 922(g)(1), and was sentenced to 235 months’
imprisonment. We affirmed on direct appeal. United States v. Lozado, 776 F.3d 1119
(10th Cir. 2015). Mr. Lozado challenged his sentence in a 28 U.S.C. § 2255 motion, and
we reversed the district court’s denial of relief and remanded for resentencing. United
States v. Lozado, 968 F.3d 1145, 1154–56 (10th Cir. 2020). On remand, the district court
sentenced him to 108 months’ imprisonment. Exercising jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 21, 2021
Christopher M. Wolpert
Clerk of Court
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Background
The parties are familiar with the facts, and we need not restate them here. Suffice
it to say that on remand the probation office calculated Mr. Lozado’s applicable guideline
range without application of the Armed Career Criminal Act (ACCA) as 100–120
months. 2 R. 5–7. Mr. Lozado objected to this calculation, arguing that a prior Colorado
felony menacing conviction did not constitute a “crime of violence” as defined in
U.S.S.G. § 4B1.2(a) and therefore could not support a sentencing enhancement under
U.S.S.G. § 2K2.1(a)(2). 1 R. 32–33. He contended that the appropriate guideline range
was 70–87 months, 1. R. 40, and sought a sentence of time served (78 months) based on
his good behavior while incarcerated, family circumstances relating to the loss of his son,
and the Covid-19 pandemic, 1 R. 46–59.
The district court, however, determined that Mr. Lozado’s argument concerning
the Colorado felony menacing statute was outside the scope of our remand. 3 R. 19. In
the alternative, the district court rejected the argument on the merits. On appeal, Mr.
Lozado challenges both points. First, he argues that the district court misunderstood the
scope of its authority on remand, committed procedural error, and misunderstood the
nature of his prior concession that Colorado felony menacing was a crime of violence.
Second, he reiterates that Colorado felony menacing cannot constitute a “crime of
violence” as defined in U.S.S.G. § 4B1.2(a) under the categorical approach. Therefore,
he submits, Colorado felony menacing cannot support a sentencing enhancement under
U.S.S.G. § 2K2.1(a)(2).
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Discussion
It is unnecessary for us to reach Mr. Lozado’s first argument because we reject his
second. Under § 2K2.1(a)(2), a defendant’s base offense level is increased to 24 if the
defendant committed the offense “subsequent to sustaining at least two felony
convictions of . . . a crime of violence.” Relevant here, the elements clause of U.S.S.G.
§ 4B1.2(a)(1) defines a crime of violence to include “any offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that . . . has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” We review de novo whether a defendant’s prior conviction constitutes a crime
of violence under U.S.S.G. § 4B1.2. United States v. Wray, 776 F.3d 1182, 1184 (10th
Cir. 2015).
We apply a categorical approach in determining whether an offense satisfies this
definition. United States v. Kendall, 876 F.3d 1264, 1267 (10th Cir. 2017). Under this
approach, we examine the elements, rather than the underlying facts, of the offense at
issue. Id. If the statute is broader than § 4B1.2(a)’s definition of a crime of violence, it is
not categorically a crime of violence. Id. at 1267–68.
The Colorado felony menacing statute under which Mr. Lozado was convicted
provides that a person commits the offense of menacing if, “by any threat or physical
action, he or she knowingly places or attempts to place another person in fear of
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imminent serious bodily injury.” Colo. Rev. Stat. § 18-3-206 (2000).1 The offense is a
felony if it is committed “(a) [b]y the use of a deadly weapon or any article used or
fashioned in a manner to cause a person to reasonably believe that the article is a deadly
weapon; or (b) [b]y the person representing verbally or otherwise that he or she is armed
with a deadly weapon.” Id.
We have repeatedly held that Colorado felony menacing is a crime of violence
under U.S.S.G. § 4B1.2(a). In Damaso-Mendoza v. Holder, we adopted our reasoning in
United States v. Herron, where we concluded that Colorado felony menacing constituted
a violent felony under the ACCA. 653 F.3d 1245, 1249–50 (10th Cir. 2011) (discussing
United States v. Herron, 432 F.3d 1127 (10th Cir. 2005)); see also United States v.
Armijo, 651 F.3d 1226, 1231 (10th Cir. 2011) (reaching the same conclusion regarding
an earlier version of Colorado’s felony menacing statute). In Herron, we held that
Colorado felony menacing is “undoubtedly” a violent felony because it requires that the
defendant “knowingly place[] or attempt to place another person in fear of imminent
serious bodily injury . . . by the use of a deadly weapon. 432 F.3d at 1138 (quoting Colo.
Rev. Stat. § 18-3-206). We concluded that this easily constitutes threatened use of
physical force against the person of another, rejecting the defendant’s contention that the
term “deadly weapon” was defined so broadly as to include conduct not covered by the
ACCA’s definition of violent felony. Id. And in Damaso-Mendoza, we emphasized in
1 This statute was recently revised, see 2021 Colo. Legis. Serv. ch. 462, § 195 (West), but
the revised version, not effective until March 1, 2022, id. § 803, does not apply in this
case.
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the context of § 4B1.2(a)(1) that the threatened use of physical force against another is
the same whether the defendant possessed an actual or simulated deadly weapon, or
simply represented to the victim that he possessed a deadly weapon. 653 F.3d at 1250;
see also United States v. Villalobos-Varela, 440 F. App’x 665, 668–69 (10th Cir. 2011)
(unpublished).
Mr. Lozado acknowledges these cases but argues that other decisions, such as
United States v. Titties, 852 F.3d 1257 (10th Cir. 2017), require a different result. Aplt.
Br. at 23–24; Aplt. Reply Br. at 10 n.2. In Titties, we held that an Oklahoma conviction
for feloniously pointing a firearm did not qualify as an ACCA violent felony because the
statute in that case covered conduct committed “for the purposes of whimsy, humor or
prank.” Id. at 1270 (quoting Okla. Stat. tit. 21, § 1289.16 (1995)). In supporting our
decision, we discussed a case involving a New Mexico statute concerning the offense of
“apprehension-causing aggravated assault,” which we remarked satisfied the ACCA in
part because the offense required that “the defendant acted purposefully or engaged in
conscious wrongdoing.” Id. at 1274.
Mr. Lozado also relies upon People v. Crump, where the Colorado Supreme Court
explained that the mens rea element of felony menacing “is satisfied when the offender is
aware that he is placing or attempting to place another person in fear of imminent serious
bodily injury by the use of a deadly weapon, regardless of whether the offender had a
conscious objective to cause such fear in the other person.” 769 P.2d 496, 499 (Colo.
1989).
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The formulations in these cases do not persuade us that they are exclusive when it
comes to the categorical approach. As the Supreme Court has made clear, either knowing
or purposeful conduct alone can satisfy the ACCA and the guidelines’ use of force
requirement. Borden v. United States, 141 S. Ct. 1817, 1826–28 (2021).2 Offenses
committed “knowingly” only require a person’s “aware[ness] that his conduct is
practically certain to cause the result.” Colo. Rev. Stat. § 18-1-501(6). That is satisfied
here.
Mr. Lozado also argues that he need not point to actually overbroad prosecutions
as long as the plain language of the statute could apply. Aplt. Br. at 25–27. He contends
that the statute’s overbreadth is nonetheless illustrated by a March 2020, Washington
Post story reporting the prosecution of a 10-year-old boy for felony menacing after he
pointed a toy rifle at a man in a truck. Aplt. Br. at 24–25 (citing Katie Shepherd, A 10-
year-old-boy pretending to play ‘Fortnite’ with a toy gun spooked a driver. Police
charged him with a felony., Wash. Post (Mar. 3, 2020),
https://www.washingtonpost.com/nation/2020/03/03/fortnite-toy-gun-arrest/). According
to Mr. Lozado, this prosecution demonstrates that the statute can be violated without the
defendant intending that the victim feel fear. Aplt. Br. at 24–25.
2 The government argues that, under United States v. Bettcher, 911 F.3d 1040 (10th Cir.
2018), even reckless conduct can satisfy the use of force requirement. Aplee. Br. at 23.
However, Bettcher is no longer good law, as the Supreme Court recently remanded the
case for reconsideration in light of Borden. Bettcher v. United States, 141 S. Ct. 2780
(2021) (mem.). On remand, the government dismissed the appeal. We need not consider
the government’s argument here.
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Based on our discussion above, this is not a case where the plain language of the
statute proscribes the non-qualifying conduct that would remove it from the ambit of the
ACCA or guidelines provision. See United States v. Cantu, 964 F.3d 924, 934 (10th Cir.
2020); Titties, 852 F.3d at 1274–75. Regardless, the district court correctly declined to
rely upon the Washington Post article as an instance of overbroad prosecution not only on
the basis that it was hearsay, but also because it lacked a specific indication of “what
exactly the juvenile was adjudicated for.” 3 R. 20; see also New England Mut. Life Ins.
Co. v. Anderson, 888 F.2d 646, 650 (10th Cir. 1989).
Finally, the government argues that even if the district court erred in concluding
that Colorado felony menacing is a crime of violence under § 4B1.2(a)(1), the offense
still qualifies as a predicate offense under the career offender guideline’s residual clause.
Aplee. Br. at 27–32. We need not reach this argument in light of our disposition.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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