Broadbent v. USA
MEMORANDUM DECISION AND ORDER - Granting Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255)-Mr. Broadbent's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. 2255 1 is GRANTED. Accordingly, Mr. Broadbent's sentence is hereby vacated. Counsel shall contact the court to schedule a hearing so that Mr. Broadbent can be resentenced. See Order for details. Signed by Judge Clark Waddoups on 10/11/16. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER GRANTING PETITIONER’S
MOTION PURSUANT TO 28 U.S.C. § 2255
UNITED STATES OF AMERICA,
Case No. 2:16-cv-00569
Judge Clark Waddoups
This matter came before the court on petitioner Karl Brandon Broadbent’s Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Dkt. No. 1). The court
previously denied the government’s motion to stay the proceedings pending the U.S. Supreme
Court’s ruling in Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015), cert. granted,
136 S. Ct. 2510 (2016) (Dkt. No. 9). After briefing by the parties, the court held a hearing on the
§ 2255 motion on October 3, 2016. Upon further consideration of the pleadings filed by the
parties, the arguments of counsel, and relevant case law, the court GRANTS the petitioner’s
On September 13, 2012, Mr. Broadbent pled guilty to one count of escape pursuant to 18
U.S.C. § 751(a) and one count of being a felon in possession of a firearm pursuant to 18 U.S.C. §
922(g)(1). (2:12-cr-313, Dkt. No. 15). On January 22, 2013, the court sentenced Mr. Broadbent
to 78 months in prison on each count, to run concurrently, to be followed by 36 months of
supervised release. (Id., Dkt. No. 24).
At sentencing, the court reviewed the presentence investigation report, found that the
guideline range had been correctly calculated, and accepted the report as submitted. (Id., Tr. of
Sentencing 6-7, Dkt. No. 29). There was no discussion on the record of the underlying criminal
convictions that contributed to Mr. Broadbent’s offense level or criminal history category,
including the 2003 aggravated assault conviction at issue here, a third-degree felony, which
qualified as a “crime of violence” under § 2K2.1 and the “residual clause” located in § 4B1.2(a)
of the United States Sentencing Guidelines (USSG). (Id., PSR ¶¶ 17, 33, Dkt. No. 26 ). Based on
Mr. Broadbent’s total offense level of 23 and a criminal history category of VI, the guideline
range was 92 to 115 months with a period of supervised release of 1 to 3 years. (Id.). Upon
consideration of the factors set forth in 18 U.S.C. § 3553, the court ultimately chose to vary from
the guideline range and sentenced Mr. Broadbent to 78 months. (Id., Tr. of Sentencing 16-17,
Dkt. No. 29). Mr. Broadbent did not appeal his sentence.
Mr. Broadbent filed his § 2255 motion on June 10, 2016, less than one year after the
Supreme Court issued, on June 26, 2015, its ruling in Johnson v. United States, 135 S. Ct. 2551,
192 L. Ed. 2d 569 (2015) (holding that the “residual clause” of the Armed Career Criminal Act
was unconstitutionally vague and in violation of due process). Mr. Broadbent relies on the
newly established constitutional rule in Johnson for the timeliness of his petition. Johnson was
made retroactively applicable to cases on collateral review by the Supreme Court in Welch v.
United States, 136 S. Ct. 1257, 1264 (2016). The Tenth Circuit’s decision in United States v.
Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015), which held that after Johnson, the nearly
identical residual clause in the USSG is similarly unconstitutionally vague, supports Mr.
Broadbent’s assertion that his guideline range was based on unconstitutional factors.
Specifically, Mr. Broadbent claims that his prior conviction for aggravated assault, which
qualified as a “crime of violence” under § 4B1.2 before Johnson, placed his base offense level at
20 instead of 14. A base offense level of 14 would have placed his guideline range at the much
lower range of 51 to 63 months. Accordingly, he asks for his sentence to be vacated, his correct
guideline range to be recalculated, and for resentencing under the correct guidelines range.
Before specifically addressing whether Mr. Broadbent’s prior conviction for third-degree
aggravated assault qualifies as a crime of violence after Johnson and Madrid, the court first
addresses the government’s challenge as to the timeliness of Mr. Broadbent’s petition and its
claim that he is procedurally defaulted from challenging his predicate convictions for failure to
challenge them on direct appeal.
Mr. Broadbent’s petition is timely.
The government argues that Mr. Broadbent’s § 2255 motion is untimely and thus he has
not established his right to habeas relief. First, the government claims that because Mr.
Broadbent has not shown anything in the record to demonstrate that the court relied on Johnson’s
now-invalid residual clause in imposing sentence, he cannot rely on Johnson for the timeliness of
his petition. Second, the government claims that because Mr. Broadbent has not demonstrated
that Johnson has retroactive applicability to the sentencing guidelines, his petition filed more
than three years after he was sentenced is untimely. The court addresses each of these in turn.
A. The Court’s Use of the Guidelines’ Residual Clause
The government argues that there is no evidence in the record that the court relied on the
residual clause of the USSG to evaluate Mr. Broadbent’s prior conviction; thus, it is just as likely
that the court evaluated the conviction under the enumerated offenses identified in the comment
to § 4B1.2 1 or under the “physical force clause.” 2 (Dkt. No. 11, p. 4). For purposes of the
government’s timeliness argument, the government claims that without evidence of reliance on
the residual clause, Mr. Broadbent’s § 2255 petition is untimely. The court disagrees with this
reasoning. In In re: Chance, the Eleventh Circuit rejected the requirement of sentencing
transcript evidence of reliance on the residual clause as “unworkable,” in part because there is no
requirement in the law for the court to specify which clause it relies upon in imposing a sentence.
2016 WL 4123844 *4 (11th Cir. Aug. 2, 2016). Whether the court utters the phrase “residual
clause,” “force clause,” or something similar at sentencing is little more than a matter of pure
happenstance, and many district courts have refused to rely on the requirement of “chance
remark[s]” to establish a defendant’s eligibility for § 2255 relief. Id. See, e.g., Andrews v.
United States, No. 2:16-cv-501, at 10 (D. Utah Sept. 9, 2016) (Mem. Dec.) (noting that the court
was not persuaded by the government’s claim that defendant had “not carried his burden to show
that the Court relied on the Guidelines’ residual clause.”); United States v. Ladwig, ___ F. Supp.
The government has not persuaded the court that “aggravated assault” is enumerated in § 4B1.2 for the
purpose of this petition because it appears only in the commentary of the guidelines after the August 1,
2016 Supplement to the 2015 Guidelines Manual. Introducing this commentary was a response to the
Supreme Court’s decision in Johnson and intended to interpret the residual clause. Johnson found the
residual clause unconstitutional; thus, according to Supreme Court and Tenth Circuit precedent, that
commentary is invalid because it is inconsistent with the text of the guidelines and violates the
Constitution or a federal statute. Stinson v. United States, 508 U.S. 36 (1993); United States v. Martinez,
602 F.3d 1166 (10th Cir. 2010).
The court addresses the substance of the “physical force” claim in section III, infra.
3d ____, 2016 WL 3619640, at *3 (E.D. Wash. June 28, 2016) (finding petitioner had
“successfully demonstrated constitutional error simply by showing that the Court might have
relied on an unconstitutional alternative”); Gibson v. United States, 2016 WL 3349350, at *1-2
(W.D. Wash. June 15, 2016) (slip op.) (concluding that when there is no record to show which
choice the sentencing court made, “it must be assumed that [defendant] was sentenced under the
Instead, the In re: Chance court reasoned that “if the Supreme Court has said an inmate’s
conviction does not meet one of the definitions that survive Johnson, then the inmate may have a
claim that he has the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States . . . or that the sentence was in excess of
the maximum authorized by law.” Id. at *5. The court adopts this reasoning and finds that for
purposes of the timeliness of Mr. Broadbent’s petition, because it finds below that after Johnson,
Mr. Broadbent’s prior conviction under Utah’s aggravated assault statute is no longer a “crime of
violence” for purposes of applying § 4B1.2 of the guidelines, his prior conviction was evaluated
under the “residual clause” and therefore his petition was timely.
B. Retroactive Applicability of Johnson to the Guidelines
Next, the government argues that Johnson is not a substantive or watershed rule that
applies retroactively in collateral proceedings challenging sentencing based on the residual
clause of the USSG because the guidelines are advisory, as opposed to mandatory, such that
Johnson is a procedural rule. In other words, the government argues that Mr. Broadbent’s
petition is untimely because procedural, as opposed to substantive, rules do not have retroactive
effect in guidelines sentencing cases and therefore Johnson could not have reinstated Mr.
Broadbent’s right to pursue collateral proceedings. (Dkt. No. 11, pp. 7-13). In so arguing, the
government attempts to limit the Supreme Court’s holding in Welch v. United States that
Johnson is a substantive rule with retroactive effect. 136 S. Ct. 1257, 1265 (2016). The court
finds persuasive the reasoning of the Sixth Circuit, which rejected the argument that Johnson is a
substantive rule as to the residual clause of the ACCA but not substantive as to the residual
clause in § 4B1.2 of the USSG. The Sixth Circuit found that “[t]he Supreme Court’s rationale in
Welch for finding Johnson retroactive applies equally to the Guidelines” because “Johnson
substantively changes the conduct by which federal courts may enhance the sentence of a
defendant.” In re Patrick, No. 16-5353, 2016 WL 4254929, at *1 (6th Cir., Aug. 12, 2016).
Furthermore, no ruling or stay by the Tenth Circuit persuades the court otherwise. Rather, the
Tenth Circuit determined in In re Encinias, 821 F.3d 1224, 1224 (10th Cir. 2016) that a
petitioner could file a successive § 2255 motion because he made a prima facie showing that
Johnson applies retroactively to the guidelines. The court is not persuaded by the government’s
arguments that Johnson only has selective retroactivity or that the rule in Johnson is substantive
in some contexts but not in others, particularly when pre-Johnson decisions routinely applied the
ACCA to guidelines cases. Thus, because the court concludes that Johnson applies retroactively
to the sentencing guidelines, it finds that Mr. Broadbent’s petition is timely.
Mr. Broadbent did not procedurally default on his claim because it was not
“reasonably available” under Reed v. Ross at the time of his sentencing and
he suffered prejudice.
The government argues that because Mr. Broadbent did not raise, on direct appeal, his
current challenge to the use of his 2003 felony conviction for aggravated assault to enhance his
sentence, he is barred from doing so because he cannot show cause or prejudice under the
procedural default doctrine. (Dkt. No. 11, p. 15). The court disagrees. The Supreme Court held
in Reed v. Ross that if a “constitutional claim is so novel that its legal basis is not reasonably
available to counsel, a defendant has cause for his failure to raise the claim.” 468 U.S. 1, 16
(1984). It further identified that a constitutional claim is not reasonably available if it is based on
a new decision that (1) “explicitly overrule[s] one of our precedents,” (2) “overturn[s] a
longstanding and widespread practice” that the court has not addressed but has been “expressly
approved” by a “near-unanimous body of lower court authority,” or (3) “disapprove[s] a
practice” that the court “arguably has sanctioned in prior cases.” Id. at 17 (internal punctuation
and citations omitted).
The Reed court went on to conclude that “[b]y definition, when a case falling into one of
the first two categories is given retroactive application, there will almost certainly have been no
reasonable basis upon which an attorney previously could have urged a state court to adopt the
position that this Court has ultimately adopted. Consequently, the failure of a defendant’s
attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the
cause requirement.” Id. The court finds that Mr. Broadbent’s claims fall squarely within the first
two categories identified in Reed, and thus he had cause for failing to raise the validity of the use
of his aggravated assault conviction to enhance his sentence on direct appeal.
Similarly, the court finds that Mr. Broadbent has suffered actual prejudice because his
guidelines sentencing range was increased based on § 4B1.2(a)(2)’s unconstitutionally vague
residual clause which deemed his underlying conviction as a “crime of violence.” The Tenth
Circuit has held that prejudice can be established by showing that an improperly applied
guideline range increased the actual amount of jail time a defendant may be required to serve.
United States v. Horey, 333 F.3d 1185, 1188 (10th Cir. 2003). More recently, the Supreme
Court held that a sentence imposed under an erroneous guideline is “plain error” even if the
sentence actually imposed was within the correct range. Molina-Martinez v. United States, 136
S. Ct. 1338, 1345 (2016). In light of the foregoing, the court finds both cause and prejudice
under Reed and finds that the procedural default doctrine does not preclude Mr. Broadbent’s §
Mr. Broadbent lacks any “Crime of Violence” sufficient to increase his
guideline range under USSG § 2K2.1.
After Johnson, for a prior conviction to qualify as a crime of violence under USSG §
4B1.2(a)(1), the conviction must have “as an element the use, attempted use, or threatened use of
physical force against the person of another.” Under the “categorical approach” that the court is
required to employ to evaluate whether the prior conviction meets the “physical force” clause,
the court must “look only to the statutory definitions—i.e., the elements—of a defendant’s prior
offense and not to the particular facts underlying [the offense]. 3 Descamps v. United States,
133 S. Ct. 2276, 2283 (2013); Madrid, 805 F.3d at 1207 (“We focus only ‘on the elements,
rather than the facts, of a crime’ to determine whether it is categorically a crime of violence
under all circumstances.”). The court therefore evaluates the elements of Utah’s aggravated
assault statute to determine whether it qualifies categorically as a crime of violence under USSG
The 2003 Utah statute for the offense of aggravated assault states:
The government does not demonstrate how Utah’s aggravated assault statute is divisible such that the
“modified categorical approach,” which allows the court to review certain factual findings such as
charging documents, should be applied pursuant to Descamps. 133 S. Ct. 2276. The court therefore
analyzes the statute according to the categorical approach.
(1) A person commits aggravated assault if he commits assault as defined in
Section 76-5-102 and he:
(a) intentionally causes serious bodily injury to another; or
(b) under circumstances not amounting to a violation of Subsection (1)(a),
uses a dangerous weapon as defined in Section 76-1-601 or other
means of force likely to produce death or serious bodily injury.
(2) A violation of Subsection (1)(a) is a second degree felony.
(3) A violation of Subsection (1)(b) is a third degree felony.
Utah Code Ann. § 76-5-103 (2003).
Because the qualification for aggravated assault includes the commission of simple
assault, the simple assault statute as it existed in 2003 is also cited:
(a) an attempt, with unlawful force or violence, to do bodily injury to another;
(b) a threat, accompanied by a show of immediate force or violence, to do bodily
injury to another; or
(c) an act, committed with unlawful force or violence, that causes bodily injury to
another or creates a substantial risk of bodily injury to another.
Utah Code Ann. § 76-5-102 (2003).
Mr. Broadbent’s prior conviction for aggravated assault was a third degree felony under
Utah Code Ann. § 76-5-103(1)(b) (2003). This subsection does not identify a mens rea. The
Utah Criminal Code requires a culpable mental state of mind for conviction of all offenses other
than strict liability offenses, and when the definition of a criminal offense does not identify what
that culpable mental state is, “intent, knowledge, or recklessness shall suffice to establish
criminal responsibility.” Utah Code Ann. § 76-2-102. In addition, the Utah Supreme Court has
found that a reckless mens rea is sufficient under Utah law to establish the offense of aggravated
assault. In re McElhaney, 579 P.2d 328, 328-29 (Utah 1978). A reckless mens rea, however, is
insufficient to establish a crime of violence under § 4B1.2, which requires “purposeful or
intentional behavior” and does not encompass non-intentional mental states such as recklessness.
United States v. Armijo, 651 F.3d 1226, 1237 (10th Cir. 2011) (holding manslaughter based on
recklessness was not a crime of violence under § 4B1.2). Under the categorical approach, then,
because the elements of aggravated assault can be met by recklessness it cannot be a crime of
violence under all circumstances and thus fails to satisfy the physical force requirement. See
United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008).
The court is not persuaded by the government’s argument that the Supreme Court’s
decision in Voisine v. United States, 136 S. Ct. 2272 (2016), forecloses this result because it did
not address the definition of a “crime of violence” in the context of the Armed Career Criminal
Act or the USSG. Voisine involved a “misdemeanor crime of domestic violence” that prohibits
firearm ownership under 18 U.S.C. § 922(g)(9). 136 S. Ct. at 2280. Its holding that a reckless
domestic assault “involves the use of . . . physical force” that meets the definition in §
921(a)(33)(A) to trigger the firearms ban in 18 U.S.C. § 922(g)(9) is expressly limited to the
scope of § 921(a)(33)(A). Id. at n.4 (“[O]ur decision today concerning § 921(a)(33)(A)’s scope
does not resolve whether § 16 includes reckless behavior. Courts have sometimes given those
two statutory definitions divergent readings in light of differences in their context and purposes,
and we do not foreclose that possibility with respect to their required mental states.”) (emphasis
added). Moreover, at least one district court has held that Voisine is not applicable to the ACCA.
Bennett v. United States, 2016 WL 3676145 (D. Maine 2016).
Accordingly, because the court finds that Mr. Broadbent’s prior conviction under Utah’s
2003 aggravated assault statute does not qualify as a crime of violence because it can be
committed recklessly, he has also established that his sentence was based on the residual clause
and, after Johnson, he is entitled to relief under § 2255.
Based on the foregoing, Mr. Broadbent’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No. 1) is GRANTED. Accordingly, Mr.
Broadbent’s sentence is hereby vacated. Counsel shall contact the court to schedule a hearing so
that Mr. Broadbent can be resentenced.
DATED this 11th day of October, 2016.
BY THE COURT:
United States District Court Judge
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