Opinion
21-1178
02-24-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANK ALEXANDER LYNCH, Defendant-Appellant.
(D.C. No. 1:19-CR-00434-DDD-1) (D. Colo.)
Before MORITZ, BALDOCK, and EID, Circuit Judges.
ORDER AND JUDGMENT [*]
NANCY L. MORITZ, CIRCUIT JUDGE
Frank Lynch pleaded guilty to possessing a firearm as a convicted felon, a crime that ordinarily carries a maximum prison term of ten years. See 18 U.S.C. § 924(a)(2). But at sentencing, the district court determined that Lynch had three or more prior convictions for "a violent felony," thus triggering a mandatory prison term of at least 15 years (180 months) under the Armed Career Criminal Act 1 (ACCA), § 924(e)(1). Based on this determination, the district court imposed a 190-month prison sentence that Lynch now challenges on appeal.
Lynch focuses on the ACCA enhancement applied to his sentence. He argues that one of the predicate offenses used to trigger the enhancement-a Colorado conviction for first-degree arson-does not qualify as a "violent felony" under § 924(e)(1). As Lynch acknowledges, because he did not object to his Colorado arson conviction on this ground below, we review his argument for plain error. See United States v. Fagatele, 944 F.3d 1230, 1238-39 (10th Cir. 2019). Lynch must therefore show that "(1) an error occurred; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of a judicial proceeding." United States v. Cantu, 964 F.3d 924, 935 (10th Cir. 2020) (quoting United States v. Faulkner, 950 F.3d 670, 672 (10th Cir. 2019)). As explained below, we need only reach the first two prongs.
We first assess whether the district court erred in classifying Lynch's Colorado conviction for first-degree arson as a violent felony. As relevant here, the ACCA includes "arson" among a list of three enumerated offenses that fit the definition of a "violent felony." § 924(e)(2)(B)(ii). But a prior conviction qualifies as arson under this enumerated-offense clause only if "its elements are the same as, or narrower than, those of the generic [version of the] offense"-that is, "the offense as commonly understood." Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). Or, stated conversely, an offense "cannot qualify as an ACCA predicate if its elements are broader than those of [the] listed generic offense." Id. at 2251. So to determine 2 whether Lynch's conviction qualifies, we must compare the elements of Colorado first-degree arson with the elements of generic arson. See id. at 2248.
Lynch focuses on the mens rea (or state of mind) element for both arson offenses. In his view, generic arson requires a mens rea of at least knowledge-the defendant must "act with awareness of a practical certainty that destruction or damage will result from his [or her] conduct." Aplt. Br. 5 (emphasis added); see also Borden v. United States, 141 S.Ct. 1817, 1823 (2021) (plurality opinion) (explaining that one acts knowingly when he or she "is aware that [a] result is practically certain to follow from his [or her] conduct" (first alteration in original) (quoting United States v. Bailey, 444 U.S. 394, 404 (1980))). But the mental state required to commit Colorado first-degree arson, Lynch says, is something less than knowledge: The defendant need only act with an awareness "that destruction or damage is more than merely a probable result." Aplt. Br. 2 (emphasis added). In other words, Lynch 3 contends that the state-of-mind element for Colorado first-degree arson encompasses "any probability marginally higher than a preponderance of the evidence," which could fall far short of the "practical certainty" required to commit generic arson. Id. at 8. We disagree.
As Lynch notes, we have applied a practical-certainty knowledge standard to the federal arson statute. See United States v. M.W., 890 F.2d 239, 240-41 (10th Cir. 1989) (holding that 18 U.S.C. § 81 encompasses "acts done with the knowledge that burning of a building is the practically certain result"). But we have never applied that standard to generic arson. Indeed, as Lynch also notes, our precedents do not define the elements of generic arson. See United States v. Delgado-Montoya, 663 Fed.Appx. 719, 724 (10th Cir. 2016) (unpublished). And the circuits that have defined these elements do not uniformly describe the mens rea requirement. Compare United States v. Misleveck, 735 F.3d 983, 988 (7th Cir. 2013) (requiring "intentional or malicious burning of any property" (emphasis added)), with United States v. Velez-Alderete, 569 F.3d 541, 542 (5th Cir. 2009) (requiring "willful and malicious burning of property" (emphasis added)). We need not decide here what mental state applies to generic arson because, as explained above, Lynch's argument fails under his own definition. Thus, we assume without deciding that generic arson requires at least knowledge, defined as awareness of a practical certainty of the proscribed result.
At the outset, express statutory language significantly undermines Lynch's assertion that a broader mental state applies to Colorado first-degree arson than to generic arson. The statute defining the state offense covers anyone who "knowingly" commits the proscribed acts. Colo. Rev. Stat. § 18-4-102(1). And another provision defines "knowingly" to match the standard Lynch says applies to generic arson: The defendant must be "aware that his [or her] conduct is practically certain to cause the result." Id. § 18-1-501(6) (emphasis added). Even Lynch acknowledges that these two provisions "appear[] facially consistent with generic arson." Aplt. Br. 8.
Yet despite this clear statutory language, Lynch maintains that "Colorado state courts have expansively construed [the practical-certainty] requirement" so that it is broader than its generic-arson counterpart. Id. To prevail on that argument, though, Lynch must establish "a realistic probability, not a theoretical possibility, that the [s]tate would apply its statute" to conduct satisfying the broad state-of-mind definition he advances. United States v. Mendez, 924 F.3d 1122, 1126 (10th Cir. 2019) (quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). That means identifying actual cases "in which the state courts in fact did apply the statute" as he says they do. Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); see also id. ("Where a statute does not on its face criminalize conduct outside the 4 generic definition of the offense, it is not enough to argue that a state could interpret its statute to criminalize such conduct; the defendant must show that the state has actually done so."). And neither of the two cases Lynch cites for support adopts his broader reading of Colorado first-degree arson's knowledge requirement.
The first decision Lynch cites, People v. Marcy, involved a prosecution for first-degree murder. 628 P.2d 69, 71 (Colo. 1981). There, the Colorado Supreme Court described a prior case as using the practical-certainty standard applicable to second-degree murder "interchangeably with the term 'more than merely a probable result.'" 628 P.2d at 79 (quoting People v. DelGuidice, 606 P.2d 840, 842 (1979)). Lynch construes this description to mean that, in Colorado, acting knowingly merely requires an awareness that "it is 'more likely than not' that the [proscribed] result will occur." Aplt. Br. 8 (quoting United States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018)). But as the government points out, Marcy's very next sentence confirms that Colorado follows the standard formulation of practical certainty, describing it as requiring "such a high probability of death that death was practically certain." 628 P.2d at 79 (emphasis added) (quoting People v. Mingo, 584 P.2d 632, 634 (Colo. 1978)). Plus, Marcy itself did not involve a prosecution for a knowledge 5 offense, so no matter what it said about the practical-certainty standard, it does not supply an actual example of the state "apply[ing] the statute" in the way Lynch argues. Mendez, 924 F.3d at 1126 (quoting Duenas-Alvarez, 549 U.S. at 193).
This conclusion is bolstered by the government's further observation that the sentence Lynch emphasizes in Marcy quotes from a case distinguishing knowledge from recklessness, which is a broader mental state requiring only a "probability or contingency of result." DelGuidice, 606 P.2d at 842. Marcy's statement that practical certainty requires "more than merely a probable result" simply reiterates this distinction. 628 P.2d at 79 (quoting DelGuidice, 606 P.2d at 842). It does not, as Lynch suggests, mean that practical certainty encompasses "any probability marginally higher than" a probable result. Aplt. Br. 8.
Neither does the second case Lynch cites, People v. Magana, 490 P.3d 948 (Colo.App. 2020), cert. granted, No. 20SC928, 2021 WL 2188633 (Colo. 2021). In Magana, the appellate court affirmed a conviction for first-degree arson and quoted in passing Marcy's statement that practical certainty requires "more than merely a probable result." 490 P.3d at 953 (quoting Marcy, 628 P.2d at 79). But when assessing the sufficiency of the evidence, the court applied the typical practical-certainty standard, not some lesser (and broader) more-likely-than-not standard. See id. ("A reasonable person hearing this evidence could conclude that [the defendant] was aware that his conduct . . . was practically certain to cause the duplex to catch on fire."). So Magana, like Marcy, does not establish that Colorado courts apply an expansive view of the mental state required to commit first-degree arson.
To sum up: Considering the statutory language and the caselaw Lynch cites, Colorado first-degree arson requires the same mental state as the generic version of that offense. The district court therefore did not err in classifying Lynch's prior conviction as a violent felony under ACCA. See Mathis, 136 S.Ct. at 2247.
And even assuming the district court did err, any such error was not plain, meaning "clear or obvious under settled law." Fagatele, 944 F.3d at 1239. Given Lynch's recognition that the relevant statutory language cuts directly against his position, he can hardly show that this language "is 'clearly and obviously' limited to 6 the interpretation [he] advances." Id. (quoting United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003)). Nor can he show that "this court or the Supreme Court has resolved [the issue] in his favor," as he cites no federal case construing the elements of Colorado first-degree arson more broadly than those of generic arson. Id. Thus, even were we to assume error, Lynch cannot overcome the second plain-error prong. For these reasons, we affirm Lynch's sentence. 7
[*] After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).