Colorado Harassment Convictions Not Categorically Crimes of Violence

US v. Maldonado-Lopez, No. 07-2195, 2/27/08 (published): The Tenth Circuit reverses for resentencing in a reentry case in which the defendant had three prior misdemeanor convictions for harassment under Colorado law. Defendant objected to the three convictions being considered misdemeanor crimes of violence and his offense level under USSG 2L1.2 being enhanced four levels as a result. Defendant argued that the Colorado statute was not categorically a crime of violence and that the summary description in the judgment of the prior conviction was insufficient to prove that he was convicted of one of the subsections that had, as an element, the use of force. The district court overruled the objections and imposed 4-level increase.

The Tenth Circuit held that the modified categorical approach was appropriate here because the statute was broad enough to encompass both violent and nonviolent crimes. Furthermore, although there was sufficient evidence to conclude that two of the prior convictions were domestic violence, the evidence supporting the third conviction, the judgment only, did not provide a factual basis from which the judge could find that it was in fact a crime of violence - it just listed the generic title of the statute as the crime of conviction. 4-level increase was therefore not applicable.

Judge McConnell, concurring, urged the Tenth Circuit to clarify its case law concerning use of the categorical and modified categorical approach.