United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
matter is before the Court on Petitioner Juan Lazareno's
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255. Petitioner asserts that his sentence
was enhanced because the Court improperly determined that his
prior Utah felony conviction for aggravated assault was a
“crime of violence.” Petitioner claims that the
improper sentencing enhancement was the result of ineffective
assistance of counsel in violation of the Sixth Amendment.
Lazareno pleaded guilty on December 16, 2015, to unlawfully
possessing a firearm in violation of 18 U.S.C. § 922(g).
United States v. Lazareno, 2:14-cr-151, Doc. 30 (D.
Utah Dec. 16, 2015). At sentencing, the Court applied United
States Sentencing Guideline (USSG) § 2K2.1, which
imposes an increased base offense level for an offender who
was previously convicted of a crime of violence. Counsel for
Petitioner filed a sentencing memorandum challenging a
different sentencing enhancement used in the Presentence
Report, but counsel did not challenge the “crime of
violence” enhancement that was based on
Petitioner's prior conviction for aggravated assault.
With the “crime of violence” enhancement, the
applicable guideline range was 46-57 months. Without it, the
range would have been 27-33 months.
Court imposed a high-end sentence of 57 months in prison
followed by 36 months of supervised release. As stated
previously, in the motion now before the Court, Petitioner
Lazareno claims that his prior conviction for aggravated
assault did not qualify as a crime of violence and therefore
his counsel should have objected to the enhancement. Because
counsel did not object, Petitioner claims that his sentence
was imposed in violation of his Sixth Amendment right to
effective assistance of counsel.
Court agrees with Petitioner that the “crime of
violence” enhancement should not have been applied in
Court has previously concluded, and the parties do not
dispute, that Utah aggravated assault can be committed
recklessly. See Broadbent v. United States, 2016 WL
5922302, at *5 (D. Utah Oct. 11, 2016). Utah case law also
confirms that a finding of recklessness is sufficient to
establish a conviction for aggravated assault. State v.
McElhaney, 579 P.2d 328 (Utah 1978) (wherein Utah
Supreme Court held that Utah's aggravated assault statute
can be violated recklessly).
determined that Utah aggravated assault can be committed
recklessly, this Court is bound by precedent from the United
States Court of Appeals for the Tenth Circuit that clearly
excludes reckless conduct from the crime of violence
definition in § 4B1.2. In United States v.
Armijo, 651 F.3d 1226, 1237 (10th Cir. 2011),
the Tenth Circuit explained that its precedent was clear that
“only those crimes with a mens rea of intent or purpose
qualify as crimes of violence.” Id. at 1234
(quoting United States v. Zuniga-Soto, 527 F.3d
1110, 1115 (10th Cir. 2008). The Tenth Circuit
further explained that § 4B1.2 requires
“purposeful or intentional behavior” and does not
encompass non-intentional mental states such as recklessness.
Id. at 1237 (holding manslaughter based on
recklessness was not a crime of violence under § 4B1.2).
More recently, in United States v. Mitchell, 653
Fed.Appx. 693 (10th Cir. 2016), the Tenth Circuit
reiterated this long-standing rule stating: “If the
elements of an offense may be proven without intentional or
purposeful conduct (e.g., an offense that may be committed
with a reckless mens rea), that offense does not constitute a
crime of violence” under § 4B1.2. Id. at
Court is bound to follow this well-established Tenth Circuit
precedent, and has done so on several occasions, concluding
that because aggravated assault in Utah can be committed
recklessly, it does not constitute a crime of violence.
See United States v. Bettcher, 2:15-CR-623 (D. Utah
Aug. 4, 2016) (oral ruling); Jaramillo v. United
States, 1:16-CV-87, 2016 WL 5947265, at *6 (D. Utah Oct.
13, 2016) (concluding that Tenth Circuit precedent provides
that if an offense may be committed with a reckless mens rea
that offense does not constitute a crime of violence)
(abrogated on other grounds by United States v.
Frazier-LeFear, 665 Fed.Appx. 727, 731-32(10th Cir.
2016)); Broadbent v. United States, 2:16-CV-569,
2016 WL 5922302 (D. Utah Oct. 11, 2016) (“Until the
Tenth Circuit sees fit to review Zuniga-Soto and
Armijo in light of Voisine, the Court is
bound to follow those cases.”); see also United
States v. Mann, 2017 WL 3052521 (D. N.M. June 16, 2017)
(concluding that Voisine does not control the
interpretation of felony “crime of violence” and
does not overrule Tenth Circuit precedent holding that
recklessness is an insufficient mens rea to constitute a
felony crime of violence).
Petitioner's Utah aggravated assault conviction did not
qualify as a crime of violence, and because the law on this
point was well settled at the time of sentencing,
counsel's failure to challenge the sentencing enhancement
was both unreasonable and prejudicial such that
Petitioner's Sixth Amendment right to effective
assistance of counsel was violated. See Strickland v.
Washington, 466 U.S. 668 (1984).
foregoing reasons, the Court GRANTS Petitioner's motion
and VACATES the sentence previously imposed. Petitioner is
instructed to contact ...