Broom v. United States of America
ORDER granting re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Nicolaus Zuriel Broom, as more fully set out. Signed by Honorable David L. Russell on 6/30/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
NICOLAUS ZURIEL BROOM,
Case No. CR-14-325-R
Before the Court is Defendant-Petitioner’s Motion to Correct Sentence under 28
U.S.C. § 2255. Doc. 1. For the reasons that follow, Petitioner’s Motion is GRANTED.
In November 2014, a grand jury sitting in the United States District Court for the
Western District of Oklahoma indicted Defendant-Petitioner Nicolaus Broom on two
counts. Mr. Broom later pled guilty to the first count, conspiring to distribute cocaine in
violation of 21 U.S.C. § 846. At sentencing on January 11, 2016, this Court classified Mr.
Broom as a career offender under the United States Sentencing Guidelines based on his
two prior felony convictions for distributing cocaine and second-degree burglary. USSG §
4B1.1 provides for an enhanced sentence under the Guidelines for defendants who have
“at least two prior felony convictions of either a crime of violence or a controlled substance
offense.” Based on a total offense level of 29 and a criminal history category of VI, his
guideline imprisonment range was 151 months to 188 months. This Court departed
downward and imposed a 60-month term of imprisonment.
As he argued before sentencing, Mr. Broom believes he is not a career offender
under the Guidelines because his Oklahoma conviction for second-degree burglary does
not qualify as a crime of violence. At the time of his sentencing, the Guidelines defined
“crime of violence” to include “burglary of a dwelling.” USSG § 4B1.2. Though the
provision has since been amended to delete burglary from the Guideline’s list of generic
crimes that count as crimes of violence, a sentencing court must generally apply the version
of the Guidelines that is in effect on the date the defendant is sentenced.” See, e.g., United
States v. Rodriguez, 989 F.2d 583, 587 (2d Cir. 1993). Mr. Broom contends that Mathis v.
United States, 136 S.Ct. 2243 (2016)—which was decided a little over six months after he
was sentenced—clarifies that his conviction for second-degree burglary is not a crime of
violence under the Guidelines and that the Court must therefore resentence him by
considering his advisory guideline range of 30 to 37 months. Because the Court concurs
that his conviction for second-degree burglary is not a crime of violence under the
Guidelines, it will resentence him accordingly.
The initial question is whether Mr. Broom filed his Petition on time. The federal
habeas statute affords federal prisoners one year to move for relief, but begins that
limitations period at different times depending on the movant’s specific grounds for relief.
Under 28 U.S.C. § 2255(f)(1), a prisoner’s petition is timely so long as it is filed within
one year from “the date on which the judgment of conviction becomes final[.]” Mr. Broom
filed within this one-year window. The Court sentenced Mr. Broom and entered judgment
on January 11, 2016. He filed his Petition on January 10, 2017.
That would seem to resolve any dispute over timeliness, but the Government
confuses the issue by treating Mr. Broom’s petition as being brought under § 2255(f)(3).
That provision begins a new one-year period during which a petitioner may file for relief,
measured from “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” § 2255(f)(3). The Government
argues that because the Supreme Court did not make its holding in Mathis “retroactively
applicable to cases on collateral review,” Mr. Broom cannot rely on it to trigger a new-one
year period for filing. Mr. Broom, however, is not arguing that his Petition is timely
because it was filed within one year of the Supreme Court’s decision in Mathis on June 23,
2016. Rather, his point is that he has filed within a year of when this Court’s judgment
became final. His argument is correct and saves his Petition from § 2255(f)’s procedural
II. State-law Convictions as Crimes of Violence
Having decided that Mr. Broom’s Petition is timely, the Court turns its attention to
whether Mr. Broom’s Oklahoma conviction for second-degree burglary qualifies as a crime
of violence under the Guidelines. If it does, Mr. Broom was correctly classified as a career
offender and his Petition thus fails on the merits. Fortunately for Mr. Broom, the Tenth
Circuit, albeit in an unpublished opinion, has already held that Oklahoma’s statute for
second-degree burglary is not a crime of violence and therefore is not a sentence-enhancing
offense under the Armed Career Criminal Act.1 United States v. Taylor, 672 Fed.Appx.
860, 863 (10th Cir. 2016). That conclusion followed from the Supreme Court’s directive
in Mathis: if a defendant’s prior offense of conviction is broader—that is, it criminalizes
more conduct—than the generic offense as listed in the ACCA, then that prior conviction
cannot serve as an enhancement-qualifying offense under the ACCA. Mathis, 136 S.Ct. at
2248. So in the context of burglary,
A crime counts as “burglary” under the [ACCA] if its elements
are the same as, or narrower than, those of the generic offense.
But if the crime of conviction covers any more conduct than
the generic offense, then it is not an ACCA “burglary”—even
if the defendant's actual conduct (i.e., the facts of the crime)
fits within the generic offense's boundaries.
In other words, what matters is the array of conduct the state statute proscribes, not the
specific manner in which a defendant violated the statute. Applying this rule, the Tenth
Circuit had little trouble finding that Oklahoma’s statute for second-degree burglary was
broader than the ACCA’s generic burglary offense, and therefore cannot be used to
enhance a defendant’s sentence under the ACCA. Taylor, 672 Fed.Appx. at 863. As
explained in Mathis, the generic offense of burglary includes only “unlawful entry into a
building or other structure.” 136 S.Ct. at 2250. By contrast, Oklahoma’s statute for second-
Though Taylor examined “burglary” as used in the Armed Career Criminal Act (ACCA), both the ACCA
and the Guidelines in effect at Mr. Broom’s sentencing included burglary as an enhancement-qualifying
offense. See 18 U.S.C. § 924(e)(2)(B)(ii). Thus, Taylor’s comparison between Oklahoma’s second-degree
burglary statute and the generic offense of burglary is nonetheless instructive. See, e.g., United States v.
Ramon Silva, 608 F.3d 663, 671 (10th Cir. 2010) (“Given the similarity in language between the ACCA
and USSG, we have occasionally looked to precedent under one provision for guidance under another in
determining whether a conviction qualifies as a violent felony.”) (internal quotes omitted).
degree burglary criminalizes entering not just buildings and structures but other places as
Every person who breaks and enters any building or any part
of any building, room, booth, tent, railroad car, automobile,
truck, trailer, vessel or other structure or erection, in which any
property is kept, or breaks into or forcibly opens, any coinoperated or vending machine or device with intent to steal any
property therein or to commit any felony, is guilty of burglary
in the second degree.
Okla. Stat. tit. 21, § 1435.
Thus, under Taylor, and by extension Mathis, second-degree burglary in Oklahoma is not
a sentence-enhancing offense.
In order to prevail, however, Mr. Broom must be able to rely on Mathis, or at least
its rule that courts must compare the scope of a crime of conviction to the generic offense.
Mathis, however, was decided on June 23, 2016, more than five months after Mr. Broom
was sentenced. Whether he can rely on Mathis depends on whether the Supreme Court
handed down a “new rule” in Mathis or merely applied an “old rule.” In contrast to an “old
rule,” a “new rule” is “a rule that was not dictated by precedent existing at the time the
defendant’s conviction became final.” Whorton v. Bockting, 549 U.S. 406, 416 (2007)
(alterations omitted). Because an old rule is just that—understood to have been in existence
at the time a defendant’s conviction became final—“an old rule applies both on direct and
collateral review.” Id. By contrast, a new rule—because it is not dictated by precedent—
“is generally applicable only to cases that are still on direct review,” id., meaning that Mr.
Broom could not invoke it in this collateral attack. Chaidez v. United States, 133 S. Ct.
1103, 1107, 185 L. Ed. 2d 149 (2013) (“When we announce a ‘new rule,’ a person whose
conviction is already final may not benefit from the decision in a habeas or similar
proceeding. Only when we apply a settled rule may a person avail herself of the decision
on collateral review.”).
Consequently, so long as Mathis is an “old rule,” Mr. Broom may rely on it to
invalidate his sentence. And indeed, the Tenth Circuit has already decided that “Mathis did
not announce a new rule” because it was “dictated by decades of prior precedent”:
For more than 25 years, we have repeatedly made clear that . .
. Courts must ask whether the crime of conviction is the same
as, or narrower than, the relevant generic offense. They may
not ask whether the defendant’s conduct—his particular means
of committing the crime—falls within the generic definition.
Taylor, 672 Fed.Appx. at 864 (citing Mathis, 136 S.Ct. at 2257).
Simply put, at Mr. Broom’s sentencing this Court should have looked to prior Supreme
Court decisions to conclude that Mr. Broom’s conviction for second-degree burglary did
not qualify as a crime of violence under the Guidelines. If it had, it would not have
classified Mr. Broom as a career offender. In light of this, Mr. Broom must be resentenced.
Petitioner’s Motion is therefore GRANTED and his sentence hereby VACATED.
The Probation Office is directed to prepare a new Presentence Investigation Report. Once
the PSI is prepared, the Court will schedule Mr. Broom’s resentencing.
IT IS SO ORDERED this 30th day of June 2017.
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