                                                                                 FILED
                                                                     United States Court of Appeals
                                         PUBLISH                             Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        July 28, 2020

                                                                         Christopher M. Wolpert
                                 FOR THE TENTH CIRCUIT                       Clerk of Court
                             _________________________________

UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                           No. 19-1222

GREGORY LOZADO,

     Defendant - Appellant.
                        _________________________________

                     Appeal from the United States District Court
                              for the District of Colorado
               (D.C. Nos. 1:16-CV-01304-PAB & 1:13-CR-00151-PAB-1)
                        _________________________________

Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with her on the briefs), Denver, Colorado, for Defendant – Appellant.

Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney,
with him on the brief), Denver, Colorado, for Plaintiff – Appellee.
                         _________________________________

Before LUCERO, McHUGH, and EID, Circuit Judges.
                  _________________________________

McHUGH, Circuit Judge.
                    _________________________________


       Defendant Gregory Lozado appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate his sentence. In his § 2255 motion, Mr. Lozado contended

that his sentence must be vacated based on the Supreme Court’s decision in Johnson
v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015). Specifically, he noted that his

sentence had been enhanced under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e), which applies when a defendant convicted under 18 U.S.C. § 922(g)

“has three previous convictions . . . for a violent felony or a serious drug offense, or

both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In

Johnson, the Court invalidated one part of the ACCA’s definition of “violent felony,”

a catch-all provision referred to as the “residual clause.” 135 S. Ct. at 2556–57, 2563.

Mr. Lozado contended the Johnson ruling affected the violent-felony classification of

at least three of the five prior convictions the district court had relied on at his

sentencing. The district court denied his § 2255 motion, holding that Johnson

affected the classification of two of his prior convictions but that the remaining three

convictions were sufficient to sustain the enhancement.

       We conclude that the sentencing court classified two of the prior convictions

as violent felonies based on the now-invalidated residual clause and that a third

conviction should not have been counted as a violent felony because it was a juvenile

offense that did not involve a firearm, knife, or destructive device, see 18 U.S.C.

§ 924(e)(B). We further conclude that the government cannot show harmless error

because none of these three convictions would qualify as a valid ACCA predicate if

Mr. Lozado were sentenced under current law, and thus Mr. Lozado no longer has

enough qualifying convictions to trigger the ACCA enhancement. See 18 U.S.C.

§ 924(e)(1). We accordingly reverse the district court’s denial of § 2255 relief and

remand for resentencing.

                                             2
                               I.     BACKGROUND

      On November 20, 2013, a jury found Mr. Lozado guilty of possessing

ammunition as a previously convicted felon in violation of 18 U.S.C. § 922(g). See

United States v. Lozado, 776 F.3d 1119, 1123–24 (10th Cir. 2015). The Presentence

Report (“PSR”) prepared by the probation office in January 2014 recommended that

he be sentenced as an armed career criminal under the ACCA based on five predicate

violent-felony convictions, all from the state of 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. This increased the recommended offense level from 28 to 33.

With Mr. Lozado’s criminal-history level of VI, the advisory Guidelines range was

thus raised from 140–175 months to 235–293 months. See U.S.S.G. Ch. 5, pt. A

(2013) (sentencing table). More importantly, application of the ACCA changed the

statutory maximum penalty of ten years for Mr. Lozado’s offense to a statutory

minimum penalty of fifteen years. Compare 18 U.S.C. § 924(a)(2), with § 924(e)(1).

      At Mr. Lozado’s March 12, 2014, sentencing hearing, the district court

adopted the PSR with only a few non-substantive amendments. The district court

then sentenced Mr. Lozado to 235 months of imprisonment, the bottom of the

ACCA-enhanced advisory Guidelines range. A panel of this court affirmed

Mr. Lozado’s conviction in January 2015. Lozado, 776 F.3d at 1119, 1121.

      In June 2015, the Supreme Court issued its decision in Johnson, invalidating

the definition of “violent felony” contained in the ACCA’s residual clause while

                                           3
leaving in place the two other definitional clauses. 135 S. Ct. at 2551, 2563. This

ruling was given retroactive effect in Welch v. United States, 577 U.S. __, 136 S. Ct.

1257, 1265–66 (2016).

      Mr. Lozado filed a timely habeas challenge to his ACCA sentence on May 28,

2016, arguing that only one of the predicate ACCA offenses identified at

sentencing—the conviction for felony menacing—still qualified as a violent felony

after Johnson. As a result, Mr. Lozado claimed the sentencing court had improperly

enhanced his sentence under the ACCA.

      In opposing Mr. Lozado’s § 2255 motion, the government conceded that theft

from a person could not be considered a violent felony in light of Johnson but argued

that the other four convictions still qualified as valid ACCA predicates. Based on

later developments in the law, the government filed a supplemental response in which

it “concede[d] that Colorado second-degree burglary is not equivalent to

(enumerated) generic burglary, nor does it have physical force as an element; thus, it

could have qualified as a predicate offense under the ACCA only via the now-invalid

residual clause.” R. vol. I at 135. The government, however, maintained that the three

remaining prior convictions all qualified as ACCA predicate offenses.

      The district court agreed with the government and denied the § 2255 motion.

The court held 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.

                                           4
      Mr. Lozado sought a certificate of appealability from this court, arguing that

the district court erred in relying on the assault conviction as an ACCA predicate.

Specifically, he contended that Colorado second-degree assault is not categorically a

violent felony because a defendant can be convicted for causing mental injuries

alone. Mr. Lozado conceded that the convictions for robbery and felony menacing

still qualified as violent felonies, but he argued these were the only convictions that

presently qualified as ACCA predicates. Because the ACCA sentencing enhancement

requires at least three prior violent felonies, Mr. Lozado argued it did not apply. A

judge of this court granted Mr. Lozado’s motion for a certificate of appealability.

      In its response brief, the government argued that both the assault conviction

and the burglary conviction qualified as violent felonies under the ACCA at the time

of sentencing (along with the robbery and felony-menacing convictions conceded by

Mr. Lozado) and therefore that no Johnson error occurred. However, the government

subsequently conceded the assault conviction should not have been counted as an

ACCA predicate regardless of Johnson because it was a juvenile offense that did not

meet the ACCA’s stricter definition of “violent felony” in the juvenile context. See

18 U.S.C. § 924(e)(2)(B). The government also waived any objection to Mr. Lozado

raising this argument for the first time in his reply brief. Thus, the only dispute that

remains in this appeal is whether the Colorado burglary conviction could have been

classified as a violent felony at the time of sentencing without reference to the now-

invalidated residual clause.



                                            5
                                   II.    ANALYSIS

      Under the ACCA, a “violent felony” is defined as:

      any crime punishable by imprisonment for a term exceeding one year, or
      any act of juvenile delinquency involving the use or carrying of a firearm,
      knife, or destructive device that would be punishable by imprisonment for
      such term if committed by an adult, that--

      (i) has as an element the use, attempted use, or threatened use of physical
      force against the person of another; or

      (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
      involves conduct that presents a serious potential risk of physical injury to
      another . . . .

18 U.S.C. § 924(e)(B). Accordingly, at the time of Mr. Lozado’s sentencing, a prior

conviction could qualify as a predicate violent felony under one of three clauses: the

elements clause (“has as an element the use, attempted use, or threatened use of

physical force against the person of another”), the enumerated-offenses clause (“is

burglary, arson, or extortion, [or] involves use of explosives”), or the residual clause

(“otherwise involves conduct that presents a serious potential risk of physical injury

to another”). Id. Shortly after Mr. Lozado’s sentencing, however, the Johnson Court

found the residual clause to be void for vagueness and thus called into question all

ACCA sentences, like Mr. Lozado’s, that might have been based on this clause. 135

S. Ct. at 2563.

      This circuit employs a two-part analysis to determine whether a defendant is

entitled to relief under Johnson. First, we “ask[], as a matter of historical fact,

whether the sentencing court relied on the residual clause in imposing the ACCA

sentence.” United States v. Lewis, 904 F.3d 867, 872 (10th Cir. 2018) (quoting

                                             6
United States v. Wilfong, 733 F. App’x 920, 927 (10th Cir. 2018)). This question is

easy to resolve if the sentencing court specified which clause it relied on, but if the

court did not so specify, then we must “examine[] the ‘relevant background legal

environment’ at the time of sentencing to determine whether the district court would

have needed to rely on the residual clause.” United States v. Driscoll, 892 F.3d 1127,

1132 (10th Cir. 2018) (quoting United States v. Snyder, 871 F.3d 1122, 1130 (10th

Cir. 2017)).Next, if we determine the district court relied on the now-invalidated

residual clause, then we engage in a harmless-error analysis in which we ask

“whether the classification of the movant as an armed career criminal is correct”

under current law. Lewis, 904 F.3d at 872 (quoting Wilfong, 733 F. App’x at 927).

We refer to current law at this stage of the analysis because we are now concerned

with “the question of remedies and resentencing”: “[W]ould a sentencing judge,

applying current law, determine that the movant’s conviction(s) still qualifies as a

crime of violence under one or both of the still-valid ACCA clauses and re-sentence

him to the same length of imprisonment?” Id. at 873. If so, then the Johnson error is

harmless because the “movant would still receive an ACCA enhancement at

resentencing.” Id.

         A. Classification of State Burglary Conviction as an ACCA Predicate

   1. Preliminary Issues

      Before we apply this analysis to Mr. Lozado’s prior burglary conviction, we

first briefly address two preliminary issues. First, the government acknowledges its

concession below that the burglary conviction did not qualify as a valid ACCA

                                            7
predicate offense, but it argues that, in light of subsequent developments in the law, it

should not be held to this concession. “We are not bound to accept the government’s

concession on a point of law or on the existence of constitutional error.” United

States v. Greer, 881 F.3d 1241, 1245 n.3 (10th Cir. 2018) (internal quotation marks

omitted). Because this area of the law has undergone a significant evolution in the

four years since this case began, we find it appropriate not to hold the government to

its concession, and we will therefore address this issue on the merits.1

      Second, the parties dispute whether we must apply the first stage of the

Johnson analysis to the burglary conviction before reaching the question of harmless

error or whether we can instead find that the sentencing court’s reliance on the

residual clause with respect to any of the predicate convictions is sufficient to satisfy

the first stage of Johnson and trigger harmless-error review for the other convictions.

But we need not resolve this dispute because we would reach the same result under

either approach: As explained below, Mr. Lozado has shown that the sentencing court

relied on the residual clause in classifying the burglary conviction as a violent felony,



      1
         The government’s position on appeal also presents a question regarding the
scope of the certificate of appealability previously issued by a judge of this court.
Although the certificate of appealability stated broadly that it granted Mr. Lozado the
right “to appeal the district court’s decision,” Order Granting Certificate of
Appealability at 3, the accompanying order discussed only Mr. Lozado’s challenge to
the assault conviction. To the extent it might therefore be construed as limited to the
assault conviction, we expand the scope of the certificate of appealability to include
the parties’ arguments respecting the other convictions relied on by the district court
at sentencing. Cf. United States v. Shipp, 589 F.3d 1084, 1087–88 (10th Cir. 2009)
(expanding scope of certificate of appealability to include issues relating to ACCA
enhancement).
                                            8
which is sufficient to satisfy the first stage of the Johnson analysis under either

party’s suggested approach.

   2. Reliance on Residual Clause at Time of Sentencing

      At sentencing, the district court did not specify which clause it relied on to

classify Mr. Lozado’s burglary conviction as a violent felony. We therefore look to

the relevant legal backdrop at the time of his sentencing in March 2014 “to determine

whether the district court would have needed to rely on the residual clause.” Driscoll,

892 F.3d at 1132. Of the two other potential clauses, there is no dispute that the

elements clause did not apply, because the state burglary statute does not have as an

element the use of force. Accordingly, the key question before us in this appeal is

whether the law in effect at the time of sentencing suggests that the district court

likely relied on the enumerated-offenses clause rather than the residual clause.

      Notably, although the enumerated-offenses clause lists “burglary” as one of

the enumerated violent felonies, the Supreme Court established years ago that it is

not enough for a defendant to be convicted of a crime that carries the statutory label

of “burglary.” In 1990, the Supreme Court held that “burglary” in the enumerated-

offenses clause refers only to an offense that contains all of the elements of the

modern, generic definition of burglary, including “unlawful or unprivileged entry

into, or remaining in, a building or structure.” Taylor v. United States, 495 U.S. 575,

599 (1990). Where a state statute defines burglary more broadly than the generic

offense—for instance, “by including places, such as automobiles and vending

machines, other than buildings”—then a conviction under this statute can only satisfy

                                            9
the enumerated-offenses clause if “the charging paper and jury instructions actually

required the jury to find all the elements of generic burglary in order to convict the

defendant.” Id. at 599, 602.

      In 2005, the Supreme Court adapted this test to convictions based on guilty

pleas and clarified what documents a sentencing court may consider in determining

whether the defendant’s guilty plea was based on the elements of generic burglary.

Shepard v. United States, 544 U.S. 13, 16 (2005). The Court explained that the

sentencing court may not look at police reports or victim complaints but is “generally

limited to examining the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” Id. “According to the Supreme Court, then,

we must limit ourselves to (1) an examination of the language of the statute under

which [the defendant] was convicted, (2) the charging document or court records of

comparable reliability, and (3) any admissions (including those within the plea

agreement) [the defendant] made regarding the facts of his prior convictions.” United

States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005), abrogated on other

grounds by United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017).

      a. Statutory Definition

      Mr. Lozado’s burglary conviction was based on his February 2000 guilty plea

to the class 4 felony of second-degree burglary of a building in violation of Colo.

Rev. Stat. § 18-4-203. At the time he pleaded guilty to this offense, the statute

provided:

                                           10
      (1) A person commits second degree burglary, if the person knowingly
      breaks an entrance into, enters unlawfully in, or remains unlawfully after a
      lawful or unlawful entry in a building or occupied structure with intent to
      commit therein a crime against another person or property.

      (2) Second degree burglary is a class 4 felony, but it is a class 3 felony if:

      (a) It is a burglary of a dwelling . . . .

Colo. Rev. Stat. § 18-4-203 (1999). For purposes of this statute, “‘[b]uilding’ means

a structure which has the capacity to contain, and is designed for the shelter of, man,

animals, or property, and includes a ship, trailer, sleeping car, airplane, or other

vehicle or place adapted for overnight accommodations of persons or animals, or for

carrying on of business therein, whether or not a person or animal is actually

present.” Colo. Rev. Stat. § 18-4-101(1) (1999). Thus, while the class 3 felony of

burglary of a “dwelling” might categorically qualify as a generic burglary offense,

the statutory definition of the class 4 felony offense to which Mr. Lozado pleaded

guilty is too broad to constitute generic burglary because it includes entry into

vehicles. See Taylor, 495 U.S. at 599.

      b. PSR Reference to Court Records

      The government concedes that the statutory definition of class 4 burglary is

broader than generic burglary, but it argues the sentencing court could still have

found that Mr. Lozado’s guilty plea was based on all of the elements of generic

burglary based on the information provided in the PSR. The government does not

dispute that the record before the district court at the time of sentencing did not

include any charging documents, written plea agreements, transcripts of plea


                                               11
colloquies, or other Shepard documents pertaining to the burglary conviction. The

government argues, however, that the sentencing court could have found

Mr. Lozado’s burglary offense involved a residence based on the PSR’s assertions

that (1) “[r]ecords received from Denver County District Court reveal that the

defendant broke into the victim’s residence, although he pled guilty to breaking into a

‘building,’” and (2) Mr. Lozado was originally charged with the class 3 felony of

burglary of a dwelling, although he only pled guilty to the class 4 felony of burglary

of a “building.”2 R. vol. II at 54; see also R. vol. I at 121.

       In our 2005 decision in Perez-Vargas, we addressed the question of when a

sentencing court may rely on the PSR’s description of a prior conviction in its

enumerated-offenses analysis. 414 F.3d at 1285. In that case, as here, the government

argued that the defendant’s prior offense could be characterized as a violent felony

based on the PSR’s description of facts gleaned from unspecified “‘court

documents.’” Id. But because the court documents relied on by the PSR were neither

included in the record nor identified in the PSR, we held that we could not “evaluate

whether the records would be acceptable under the strictures of Supreme Court


       2
        We are not persuaded that this second assertion would help the government’s
case even if it were properly supported by Shepard documents. At the time of Mr.
Lozado’s sentencing, the Supreme Court had already clarified that a sentencing court
may review charging documents “only to determine ‘which statutory phrase was the
basis for conviction,’” not “to discover what the defendant actually did.” Descamps
v. United States, 570 U.S. 254, 268 (2013) (quoting Johnson v. United States, 559
U.S. 133, 144 (2010)). We do not see how the original charge could help the
sentencing court determine “which statutory phrase was the basis for conviction,” id.
(internal quotation marks omitted), where, as here, the defendant ultimately pled
guilty only to a lesser charge.
                                             12
precedent.” Id. And, because we could not determine whether the cited court

documents would be allowable under Shepard, we refused to consider the PSR’s

description of facts obtained from these documents in deciding whether the offense

qualified as a violent felony under the enumerated-offenses clause. Id.

      The government argues that our decision in Perez-Vargas was modified or

superseded by our decision in United States v. Harris, 447 F.3d 1300 (10th Cir.

2006). According to the government, Harris permitted sentencing courts to refer to

unobjected-to assertions in the PSR even if the PSR’s assertions were not clearly

based on permissible Shepard documents. The government’s argument is easily

rejected, however, because we have already rejected this reading of Harris in this

context.

      Unlike Perez-Vargas and this case, Harris did not involve a dispute regarding

the enumerated-offenses analysis. Rather, the defendant in that case argued the

district court improperly relied on the PSR to determine that his offenses were

“committed on occasions different from one another,” 18 U.S.C. § 924(e)(1). In

rejecting this argument, we first noted that the defendant had admitted in his plea

agreement to a criminal history spanning multiple decades. Harris, 447 F.3d at 1305.

We further noted that “the record indicates that the court had before it some of the

court records from [the defendant’s] prior crimes”: “At sentencing, for example, the

government urged the court to rely on ‘the judgment of convictions and the charging

documents’ to conclude that [the defendant’s] crimes were separate incidents.” Id. at

1306. Finally, we noted that the defendant had not objected to the PSR’s description

                                          13
of his crimes as separate. Id. Based on these facts, we determined both that “the court

relied on [the defendant’s] admissions as well as documents sanctioned by Shepard to

conclude the prior crimes were committed on different occasions” and that “the

district court could properly rely on the PSR to conclude that his prior crimes were

separate.” Id.

      In United States v. Copeland, 921 F.3d 1233 (10th Cir. 2019), as in this case,

the government attempted to rely on Harris in the enumerated-offenses context to

uphold an ACCA sentence against a Johnson challenge. We concluded, however, that

Harris “was not directly on point to [the defendant’s] sentencing because it upheld a

district court’s reliance on a PSR to determine whether prior ACCA predicate crimes

were committed on different occasions, not whether they were violent felonies.”3 Id.

at 1248. We then held that Perez-Vargas was “the most pertinent background legal

authority on when a court in the Tenth Circuit in 2008 could rely on a PSR to make

an ACCA enumeration-clause determination.” Id. at 1249. And, under Perez-Vargas,

we concluded that a description of the offense in the PSR could not have served as

the basis for an enumerated-offenses-clause finding where the PSR did not indicate

that it was “backed by ‘proof allowable under Taylor and Shepard,’” even if the

defendant raised no objection to the PSR at sentencing. Id. at 1248 (quoting Perez-




      3
        Harris is further distinguishable because the record in that case indicated the
sentencing court had been provided with the permissible Shepard documents. 447
F.3d at 1306. Here, by contrast, the government does not dispute that the district
court received no Shepard documents before sentencing.
                                          14
Vargas, 414 F.3d at 1285). The government’s contrary interpretation of Harris is thus

foreclosed by our decision in Copeland.4

      The other cases cited by the government are likewise unhelpful. The Ninth

Circuit’s decision in United States v. Gonzalez-Aparicio, 663 F.3d 419 (9th Cir.

2011), cannot displace this court’s own precedential decision in Perez-Vargas. And

the Tenth Circuit cases cited by the government are easily distinguishable. In the

government’s cited cases, either the PSR was explicitly based on permissible Shepard

documents, see, e.g., United States v. Washington, 890 F.3d 891, 897 n.6 (10th Cir.

2018) (“[T]he relevant part of Defendant’s PSR was based on the Information.”), or

the sentencing court considered Shepard documents as well as the PSR, see, e.g.,

United States v. Neely, 763 F. App’x 770, 779 (10th Cir. 2019) (“Neely doesn’t

dispute that, with a quick glance at either the PSR or the charging document, the

sentencing court would have been able to discern that the completed burglary Neely



      4
        The government points to our statement in Copeland that “[t]here must be
some proof that the PSR relied on court records before its description could serve as
the basis for an enumerated-clause offense finding.” 921 F.3d at 1249. According to
the government, this language teaches that a PSR’s citation to unidentified “court
records” is sufficient for the sentencing court to rely on the PSR’s description of the
offense. But, read in context, Copeland does not question or modify Perez-Vargas’s
clear holding that a PSR’s description of an offense may sustain an enumerated-
offenses-clause finding only when it is based on a specific subset of “court
records”—the types of court records allowed by Shepard. See, e.g., id. at 1248
(explaining that the sentencing court could rely on the PSR’s description of the
offense “only when the PSR itself relied on Shepard documents,” meaning “the
indictment or information and jury instructions” plus the “‘written plea agreement,
transcript of the plea colloquy, and any explicit factual findings by the trial judge to
which the defendant assented’” (brackets omitted) (quoting Shepard, 544 U.S. at
26)).
                                           15
was convicted of committing meets the definition of burglary the Supreme Court set

forth in Taylor.” (internal quotation marks and brackets omitted)). These cases are

thus readily distinguishable from Perez-Vargas and this case.

      Under this circuit’s precedent, underlying court documents may properly be

considered where they are either adequately described or provided to the sentencing

court, such that their compliance with Shepard can be confirmed. Where the

documents are neither described nor provided to the sentencing court, however, then

we cannot determine whether “the PSR was backed by ‘proof allowable under Taylor

and Shepard,’” Copeland, 921 F.3d at 1248 (quoting Perez-Vargas, 414 F.3d at

1285). In such cases, the PSR’s description of the offense cannot sustain an

enumerated-offenses-clause finding.

      Applying this test here, the sentencing court could not have relied on the

PSR’s description of Mr. Lozado’s burglary conviction because this description was

based on unidentified “[r]ecords received from Denver County District Court.” R.

vol. II at 54. Like the unidentified “‘court documents’” relied on in Perez-Vargas,

414 F.3d at 1285, these records could not be assessed for compliance with Shepard.

      In sum, Colorado class 4 felony burglary is broader than generic burglary as

defined in Taylor, and Perez-Vargas precluded the sentencing court from considering

the PSR’s description of the offense to determine whether Mr. Lozado’s conviction

was based on the elements of generic burglary.5 The sentencing court accordingly


      5
       The government also argues the sentencing court could have relied on
Mr. Lozado’s statement at sentencing that he “ran into somebody’s house” on some
                                          16
“could not have relied on the enumerated offenses clause because that would have

violated Taylor.” Driscoll, 892 F.3d at 1135. Rather, “[t]o impose the ACCA

enhancement, its only option was the residual clause.” Id. Mr. Lozado has therefore

met his burden of demonstrating “that the sentencing court must have relied on the

residual clause,” satisfying the first stage of the Johnson analysis. Id.

   3. Classification of Burglary Conviction as ACCA Predicate under Current
      Law

      Turning to the second stage of the Johnson analysis, the government concedes

that the burglary conviction is not a valid ACCA predicate under current law.

Specifically, under the Supreme Court’s analysis in Mathis v. United States, 136

S. Ct. 2243 (2016), the modified categorical approach permits a sentencing court to

look to court documents only where a statute sets forth elements of different,

divisible offenses. Where a statute simply sets forth alternate means of committing a

single offense—such as alternate locations where a burglary may be committed—



unspecified occasion, R. vol. III at 41, as evidence that he pleaded guilty to second-
degree burglary in February 2000 for conduct that included as an element the
unlawful entry into a dwelling. Cf. Shepard, 544 U.S. at 26 (noting that the modified
categorical approach permits sentencing courts to look at certain records “to
determine whether a plea of guilty to burglary defined by a nongeneric statute
necessarily admitted elements of the generic offense”). Even assuming the sentencing
court could consider statements made at sentencing as part of its assessment of the
elements of a prior offense—a very dubious proposition under the Supreme Court’s
restrictive holdings in Taylor and Shepard—the vague statement the government
relies on here simply could not support a finding that Mr. Lozado’s plea of guilty
“necessarily admitted elements of the generic offense” of burglary. Id. Thus, this
statement does not affect Mr. Lozado’s showing that “the sentencing court, more
likely than not, relied on the residual clause to enhance his sentence.” Driscoll, 892
F.3d at 1135.
                                            17
then the statute is categorically not a crime of violence, regardless of the facts of the

individual crime. Id. at 2256–57. Thus, “applying current law,” a sentencing court

could not conclude that this conviction “still qualifies as a crime of violence under

one or both of the still-valid ACCA clauses.” Lewis, 904 F.3d at 873.

                          B. Other Potential ACCA Predicates

      The government further concedes, and we agree, that Mr. Lozado’s ACCA

enhancement cannot be sustained on the basis of either his theft-from-a-person

conviction or his juvenile assault conviction. The theft-from-a-person offense could

have been classified as an ACCA predicate only based on the now-invalidated

residual clause, and thus it cannot sustain the enhancement in light of Johnson. See

United States v. Neal, 505 F. App’x 755, 756–57 (10th Cir. 2012) (holding, pre-

Johnson, that Colorado theft-from-a-person offense constituted violent felony under

residual clause but would not qualify as violent felony under either of the other two

definitional clauses). As for the juvenile assault offense, a juvenile offense can be

classified as a violent felony under the ACCA only if it “involv[es] the use or

carrying of a firearm, knife, or destructive device.” 18 U.S.C. § 924(e)(2)(B); see

also 18 U.S.C. § 921(a)(4) (defining “destructive device” to refer to explosive,

incendiary, and poison-gas-based weapons). Not only was Mr. Lozado’s juvenile

assault offense based on a statute that covers a much wider swath of conduct than

§ 924(e)(2)(B), see Colo. Rev. Stat. § 18-3-203(1)(b) (1997) (defining second-degree

assault as intentionally causing injury “by means of a deadly weapon”); People v.

Saleh, 45 P.3d 1272, 1273 (Colo. 2002) (“Any object, including a foot, may be a

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deadly weapon depending upon the manner in which it was used.”), but his crime

involved only the use of “glass bottles,” R. vol. II at 51, and none of the weapons

listed in § 924(e)(2)(B).

      It is true that this specific challenge to the juvenile assault conviction was not

raised in the district court or in Mr. Lozado’s opening brief and that we generally will

not consider arguments raised for the first time in a reply brief. See United States v.

Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). However, “[t]he matter of what

questions may be taken up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be exercised on the facts of

individual cases.” Singleton v. Wulff, 428 US. 106, 121 (1976). We exercise our

discretion to consider this argument on appeal based both on the government’s

concession and on our conclusion that the district court’s reliance on this conviction

to sustain the ACCA enhancement was plainly erroneous.

      “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727,

732 (10th Cir. 2005) (en banc) (internal quotation marks omitted). Because Mr.

Lozado’s prior juvenile offense clearly does not fall within the plain language of the

ACCA, he has shown that the district court committed an error that was plain or

obvious under existing law when it relied on this conviction to sustain the ACCA

enhancement, thus satisfying the first two prongs of the plain-error analysis. Mr.

Lozado has also satisfied the third prong of the plain-error analysis because the

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court’s erroneous reliance on this conviction as an ACCA predicate subjected him to

a sentence that is 115 months longer than the statutory maximum that would

otherwise apply, clearly implicating his substantial rights. See 18 U.S.C. § 924(a)(2);

see also Gonzalez-Huerta, 403 F.3d at 732 (10th Cir. 2005) (“Satisfying the third

prong of plain-error review—that the error affects substantial rights—‘usually means

that the error must have affected the outcome of the district court proceedings.’”

(quoting United States v. Cotton, 535 U.S. 625, 632 (2002))). Finally, the Supreme

Court has held that even less drastic sentencing errors are sufficient to satisfy the

fourth prong of the plain-error analysis. See Rosales-Mireles v. United States, 138

S. Ct. 1897, 1906–09 (2018). As the Court reasoned in Rosales-Mireles, “‘[W]hat

reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and

its integrity if courts refused to correct obvious errors of their own devise that

threaten to require individuals to linger longer in federal prison than the law

demands?’” Id. at 1908 (quoting United States v. Sabillon-Umana, 772 F.3d 328,

1333–34 (10th Cir. 2014) (Gorsuch, J.)). We thus exercise our discretion to consider

this belatedly raised argument and hold that Mr. Lozado’s ACCA enhancement

cannot be sustained on the basis of his juvenile assault conviction.

                                III.   CONCLUSION

      Mr. Lozado’s burglary conviction could only have been classified as a violent

felony based on the now-invalidated residual clause. 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. Mr. Lozado is

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therefore left with only two prior convictions that could possibly qualify as ACCA

predicates. Because application of the ACCA requires at least three prior violent-

felony offenses, see 18 U.S.C. § 924(e)(1), Mr. Lozado is entitled to relief under 28

U.S.C. § 2255. We accordingly REVERSE the district court’s denial of his § 2255

motion and REMAND for resentencing in accordance with this opinion.




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