Judge Philip A. Brimmer

ORDER

This matter comes before the Court on the Motion to Vacate [Docket No. 131] pursuant to 28 U.S.C. § 2255 filed by defendant William James Rucker. Mr. Rucker argues that his sentence must be vacated based on the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which declared the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutional.

In 2009, a jury convicted Mr. Rucker of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Probation Department found that the defendant's criminal history consisted of the following Colorado felony convictions: aggravated robbery, criminal impersonation, attempted possession of a weapon by a previous offender, distribution/sale of a schedule I or II controlled substance, possession of a schedule I or II controlled substance, and attempted second degree assault. Docket No. 74 at 6. Based on the defendant's convictions for aggravated robbery, distribution/sale of a controlled substance, and attempted second degree assault, the Probation Department determined that the defendant was an armed career criminal. Id. As a result, his offense level was 33. Id. The Probation Department calculated that, with an offense level of 33 and a criminal history category of V, Mr. Rucker's advisory Guideline sentencing imprisonment range was 210 to 262 months, which included the 15 year minimum sentence under the ACCA. Neither Mr. Rucker nor the United States objected to the Guideline calculation. At the sentencing hearing on April 5, 2010, the Court agreed with the Probation Department's calculation of the Guideline range. There was no analysis by the Probation Department or by the Court concerning which clause of the statute Mr. Rucker's attempted second degree assault conviction fit. The Court sentenced Mr. Rucker to 210 months imprisonment.

Mr. Rucker does not challenge the Probation Department's categorization of his convictions for aggravated robbery and distribution/sale of a controlled substance as qualifying convictions under the ACCA. Mr. Rucker does, however, claim that his conviction for attempted second degree assault can no longer serve as a predicate offense under the ACCA after Johnson. Specifically, Mr. Rucker argues that Johnson invalidated the residual clause of the ACCA, which defined a "violent felony" to include a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The other two clauses of the statute that potentially qualify a conviction as a "violent felony" are the "enumerated offense" clause and the "elements" clause. The enumerated offense clause lists the following offenses as being violent felonies - burglary, arson, and extortion - or a crime that "involves use of explosives." Id. Both parties agree that Mr. Rucker's attempted second degree assault conviction does not fit within the enumerated offense clause.

The question raised by Mr. Rucker's motion is whether his attempted second degree assault conviction qualifies as a "violent felony" under the elements clause. The elements clause classifies an offense as a violent felony if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). In order to determine whether Mr. Rucker's conviction for attempted second degree assault is a violent felony, the Court applies the categorical approach, which focuses on the elements of the crime rather than the underlying facts. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Federal law defines the meaning of the statutory language "the use, attempted use, or threatened use of physical force against the person of another," while Colorado law defines the substantive elements of the offense. United States v. Harris, 844 F.3d 1260, 1263-64 (10th Cir. 2017). Based on Johnson v. United States, 559 U.S. 133, 140 (2010), "physical force" means violent force or force capable of causing physical pain or injury to another person. Harris, 844 F.3d at 1266.

The Court will first look to the elements of the underlying crime, second degree assault. The elements of second degree assault with a deadly weapon under Colo. Rev. Stat. § 18-3-203(1)(b) are (1) with intent to cause bodily injury to another person; (2) he or she caused such injury; (3) by means of a deadly weapon. People v. Rivas, 77 P.3d 882, 888 (Colo. App. 2003). Mr. Rucker and the United States have differing views on whether second degree assault under § 203(1)(b) involves violent force and whether such crime involves "the use, attempted use, or threatened use" of such force. See Docket No. 131 at 4-7; Docket No. 137-1 at 11-15. However, even assuming that the government is correct that a conviction for second degree assault involves both specific intent to cause bodily injury and the use or threatened use of physical force, see Docket No. 137-1 at 15, the Court must still determine whether the fact that Mr. Rucker was convicted of an attempt to commit that crime changes the analysis. Because this issue is dispositive of Mr. Rucker's motion, the Court turns to that issue now.

Under Colorado law, criminal attempt is defined, in pertinent part, as follows:

(1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be, nor is it a defense that the crime attempted was actually perpetrated by the accused.

A person commits criminal attempt in this jurisdiction if, acting with the kind of culpability otherwise required for commission of a particular crime, he engages in conduct constituting a substantial step toward the commission of that crime. See § 18-2-101(1), C.R.S. (2006). The statute immediately makes clear that by "substantial step" it means any conduct that is strongly corroborative of the actor's criminal objective. See id. While the remainder of the statute speaks to various related matters, such as the treatment of factual and legal impossibility, complicity, and abandonment, see § 18-2-101(2) to-101(9), C.R.S. (2006), the statutory crime of criminal attempt is complete upon engaging, with the requisite degree of culpability, in conduct that "is strongly corroborative of the

firmness of the actor's purpose to complete the commission of the offense." § 18-2-101(1).

Rather than leaving to the fact-finder (as well as the court evaluating the sufficiency of evidence) the task of resolving the policy choices inherent in deciding when acts of preparation have become criminal, the statutory requirement of a substantial step simply calls for a determination whether the actor's conduct strongly corroborates a sufficiently firm intent on his part to commit the specific crime he is charged with attempting. See § 18-2-101(1).

the acts enumerated in the former statute and Model Penal Code, such as searching out a contemplated victim, reconnoitering the place contemplated for commission of a crime, and possessing materials specially designed for unlawful use and without lawful purpose, remain useful examples of conduct considered capable of strongly corroborating criminal purpose, and in those instances where they do, of being sufficient to establish criminal attempt.

What this means for purposes of determining whether Mr. Rucker's attempt conviction involves the use of physical force is that, under the Colorado attempt statute, a person can be convicted of attempted second degree assault by preparatory activities to the intended assault or by weapon possession, so long as such activities are strongly corroborative of the firmness of the defendant's purpose to commit the crime he is charged with attempting. Importantly, such preparatory activities or weapon possession, while strongly corroborative, do not necessarily involve any "use, attempted use, or threatened use of physical force," 18 U.S.C. § 924(e)(2)(B)(i), much less violent force. As a result, it cannot be said that Mr. Rucker's conviction for attempted second degree assault meets the definition of a "violent felony" under the ACCA. Because it does not qualify as a predicate offense under the ACCA, his attempted second degree assault conviction should not have been used to enhance his sentence under that statute.

The Court finds that Mr. Rucker is entitled to the relief that he seeks in his Motion to Vacate. Given that his attempted second degree assault conviction cannot be used to enhance his sentence under the ACCA, Mr. Rucker has only two qualifying convictions rather than the three necessary for the ACCA to apply. Wherefore, it is

ORDERED that defendant's Motion to Vacate [Docket No. 131] is granted. It is further

ORDERED that defendant's Motion for Order on Motion to Vacate Under 28 U.S.C. § 2255 [Docket No. 140] is denied as moot. It is further

ORDERED that defendant William James Rucker's sentence is vacated. It is further

ORDERED that counsel shall jointly contact Chambers via conference call (303-335-2794) no later than April 13, 2017 to schedule a resentencing hearing. It is further

ORDERED that the Probation Department shall prepare and file a revised presentence investigation report no later than one week before the resentencing hearing.

DATED April 5, 2017.

BY THE COURT:

s/Philip A. Brimmer

PHILIP A. BRIMMER

United States District Judge