United States v. Lozado, 968 F.3d 1145

Background

Lozado was convicted under 18 U.S.C. § 922(g) for possession of ammunition and sentenced as an Armed Career Criminal (ACCA) based on five Colorado prior convictions: juvenile 2nd-degree assault, robbery, 2nd-degree burglary (class 4, building), felony menacing, and theft from a person.
The ACCA finding raised his Guidelines and produced a statutory 15-year mandatory minimum; the district court sentenced him to 235 months.
After Lozado’s direct appeal, the Supreme Court decided Johnson v. United States, invalidating the ACCA’s residual clause; Welch made Johnson retroactive and Lozado filed a § 2255 motion.
The district court found two prior convictions (robbery and felony menacing) still qualified, denied relief, and Lozado obtained a COA on the assault issue.
On appeal the government ultimately conceded burglary and theft could not be sustained under current law and also conceded the juvenile assault could not qualify under the ACCA’s juvenile-weapon requirement.
The Tenth Circuit held the burglary and theft predicates had been classified via the now-invalid residual clause and that the juvenile assault does not qualify, leaving only two valid predicates; it reversed denial of § 2255 relief and remanded for resentencing.

Issues

Issue	Lozado's Argument	Government's Argument	Held
Whether the district court relied on the ACCA residual clause to classify Colorado class 4 burglary as a "violent felony"	District court had to rely on residual clause because Colorado class 4 burglary is broader than generic burglary and Shepard‑type documents were not in the record	At sentencing the PSR and court records supported that the burglary involved a dwelling so enumerated clause could apply	Held: sentencing court could not permissibly rely on PSR descriptions absent identifiable Shepard documents; therefore it relied on the residual clause
Whether Colorado class 4 burglary qualifies as generic burglary (enumerated clause) under Taylor/Shepard/Mathis	Lozado: statute covers non-generic means (vehicles), so categorical match fails; no Shepard documents prove a generic burglary conviction	Gov: PSR and some court records indicated burglary of a residence and original charging as dwelling supported enumeration	Held: statute broader than generic burglary; no admissible Shepard documents supported enumeration; burglary is not a valid predicate under current law
Whether the juvenile second‑degree assault conviction counts as an ACCA predicate	Lozado: juvenile assault did not involve firearm/knife/destructive device and thus fails the juvenile-weapon requirement in 18 U.S.C. § 924(e)(2)(B)	Gov (later concession): juvenile assault also does not meet the § 924(e)(2)(B) requirement; waived objection to late-raising	Held: juvenile assault plainly does not satisfy ACCA juvenile-weapon clause; cannot be counted
Whether the ACCA enhancement is harmless error (would enhancement stand under current law)	Lozado: with burglary, theft, and juvenile assault invalid, only robbery and felony menacing remain—fewer than three predicates—so ACCA cannot apply	Gov: initially argued other convictions suffice; later conceded burglary/theft invalid and juvenile assault invalid but maintained robbery and menacing valid	Held: Error was not harmless—only two qualifying predicates remain; § 2255 relief required; remand for resentencing

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause)
Welch v. United States, 136 S. Ct. 1257 (2016) (retroactivity of Johnson)
Taylor v. United States, 495 U.S. 575 (1990) (generic‑burglary categorical approach)
Shepard v. United States, 544 U.S. 13 (2005) (limits on documents for modified‑categorical inquiry)
Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means; divisibility rule)
Descamps v. United States, 570 U.S. 254 (2013) (limitations on using charging documents to show elements)
Rosales‑Mireles v. United States, 138 S. Ct. 1897 (2018) (plain‑error and remedy principles)
United States v. Perez‑Vargas, 414 F.3d 1282 (10th Cir. 2005) (limits on relying on unidentified PSR‑sourced court documents for enumeration analysis)
United States v. Harris, 447 F.3d 1300 (10th Cir. 2006) (distinguishable context about PSR reliance on Shepard documents)
United States v. Copeland, 921 F.3d 1233 (10th Cir. 2019) (applying Perez‑Vargas and clarifying when PSR can support enumerated‑clause finding)
United States v. Lewis, 904 F.3d 867 (10th Cir. 2018) (two‑step Johnson analysis: reliance and harmless‑error review)