FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED ST ATES COURT OF APPEALS 

TENTH CIRCUIT 

June 2, 2005 

PATRICK FISHER 

Clerk 

UNITED ST ATES OF AMERICA, 

Plaintiff-Appellee, 

V. 

AL VIN L. BROOMFIELD, JR., 

Defendant-Appellant. 

No. 04-1098 

(D. Colo.) 

(D.Ct. No. 03-CR-481-B) 

ORDER AND JUDGMENT* 

Before T ACHA, Chief Circuit Judge, and BARRETT and BRORBY, Senior 

Circuit Judges. 

After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is 

therefore ordered 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• This order and judgment is not binding precedent except under the doctrines of 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. The court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 36.3. 

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Appellant Alvin L. Broomfield pied guilty to one count of possession of a 

firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(l) and 

924(a)(2). He now appeals his forty-six-month sentence, contending the district 

court erred in characterizing his prior conviction as a "crime of violence" and 

using it to increase his sentence, in violation of the Supreme Court's decision in 

Blakely v. Washington, 542 U.S._, 124 S. Ct. 2531 (2004). We exercise 

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Mr. 

Broomfield's conviction and sentence. 

I. Background 

Following Mr. Broomfield's federal indictment for possession of a firearm 

by a prohibited person, he entered a guilty plea but disputed the government's 

assessment his prior 1995 state conviction for violation of Colo. Rev. Stat. § 18-

12-102, to which he pled guilty, constituted a "crime ofviolence." 1 The relevant 

portions of that statute state: 

( 1) As used in this section, the term "dangerous weapon" means a 

firearm silencer, machine gun, short shotgun, short rifle, or ballistic 

knife. 

1 Following his state conviction and sentence of three years probation, Mr. 

Broomfield violated the terms of his probation and was sentenced to three years 

imprisonment. 

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(2) As used in this section, the term "illegal weapon" means a 

blackjack, gas gun, metallic knuckles, gravity knife, or switchblade 

knife. 

(3) A person who knowingly possesses a dangerous weapon commits 

a class 5 felony .... 

( 4) A person who knowingly possesses an illegal weapon commits a 

class l misdemeanor. 

Colo. Rev. Stat.§ 18-12-102(1)-(4) (emphasis added). 

The probation officer who prepared the presentence report nevertheless 

determined Mr. Broomfield' s prior state court felony conviction for possession of 

a short rifle constituted a "crime of violence" for the purposes of U.S.S.G. 

§§ 2K2. l (a)( 4 )(A) and 4B l.2(a). 2 Following Mr. Broomfield' s objections thereto, 

the government responded by furnishing to the district court the charging 

document and Judgment of Conviction filed in the Denver County District Court 

in conjunction with that case. While the charging document titled the offense as 

possession ofan "illegal weapon," which is a misdemeanor under§ 18-12-102, it 

also explicitly identified the weapon as a "short rifle" and the offense charged as 

2 Section 2K2.l{a)(4)(A) provides for an offense level enhancement for a prior 

felony conviction for a crime of violence. Under§ 4Bl.2(a), a "crime of violence" 

includes, in part, any offense under federal or state law, punishable by imprisonment for a 

term exceeding one year, that "( 1) has as an element the use, attempted use, or threatened 

use of physical force against the person of another, or (2) ... otherwise involves conduct 

that presents a serious potential risk of physical injury to another." 

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a "Class 5 Felony." The Judgment of Conviction stated the conviction was for a 

"Class 5 Felony." 

At sentencing on his federal offense, Mr. Broomfield acknowledged the 

Colorado charging document and Judgment of Conviction stated he had been 

convicted of a "Class 5 Felony" for possession of a "short rifle" but argued his 

prior conviction could not be considered a "crime of violence" because the "title" 

of his charging document referred to his possession of an "illegal weapon," which 

is a misdemeanor. Alternatively, he argued those documents should not be 

considered because the statute under which he was convicted is not ambiguous, is 

not identified as a crime of violence statute, and does not contain an element of 

harm. 3 

The district court found Colo. Rev. Stat. § 18-12-102 ambiguous as to what 

type of offense Mr. Broomfield committed because it covers both felony and 

misdemeanor possession offenses. Relying on our decision in United States v. 

Dwyer, 245 F.3d 1168 (10th Cir. 2001), 4 the district court determined the 

3 Despite Mr. Broomfield's contention, actual harm is not required for an offense 

to constitute a "crime of violence." See United States v. Rowland, 357 F.3d 1193, 1197-

98 (10th Cir. 2004 ). 

4 In Dwyer we stated, "[f]or purposes of evaluating whether a prior offense 

constitute[ s] a crime of violence for purposes of§ 4 B 1.2, we first look to the statutory 

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ambiguity in the statute allowed it to rely on the charging document and Judgment 

of Conviction, and that they resolved "virtually beyond a reasonable doubt" Mr. 

Broomfield's conviction for a "felony" for possession of a "short rifle," which 

Colo. Rev. Stat. § 18-12-102 identifies as a "dangerous weapon." Based on these 

circumstances, the district court concluded the prior conviction constituted a 

"crime of violence" as a matter of law, which it considered for the purpose of 

increasing Mr. Broomfield's sentence under U.S.S.G. § 2K2.l(a)(4)(A). After 

applying a three-level reduction for acceptance of responsibility, the district court 

calculated Mr. Broomfield' s appropriate guideline range at forty-six to fifty-seven 

months imprisonment. After considering the government's request that Mr. 

Broomfield receive a sentence at the "bottom of the Guideline range," 

determining no other mitigating circumstances applied, and finding no reason to 

depart from the guideline range, the district court sentenced Mr. Broomfield to 

forty-six months imprisonment and three years supervised release. 5 

basis of the conviction," and "[i]f the statute is ambiguous, or broad enough to encompass 

both violent and nonviolent crimes, a court can look beyond the statute to certain records 

of the prior proceeding, such as the charging documents, the judgment, any plea thereto, 

and findings by the court." 245 F.3d at 1171 (quotation marks and citations omitted). 

5 At sentencing, Mr. Broomfield did not contest the length of his sentence under a 

Blakely-type claim, and on appeal he does not raise it as an issue. Even ifwe address this 

issue and apply a non-constitutional plain error analysis under Blakely or United States v. 

Booker, 543 U.S. __ , 125 S. Ct. 738 (2005), to the district court's mandatory 

application of the sentencing guidelines, we find no reason to remand. While the district 

court sentenced Mr. Broomfield at the bottom of the guideline range, it indicated no 

circumstances existed to warrant a lower sentence. In this situation, Mr. Broomfield has 

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On appeal, Mr. Broomfield contends the district court "erred in finding that 

[his] prior conviction met the definition of [a] crime of violence" and, in support, 

reiterates substantially the same arguments presented to the district court. In 

addition, for the first time on appeal, Mr. Broomfield also argues that his sentence 

is unconstitutional under Blakely v. Washington, because the nature or 

characterization of his conviction as a "crime of violence" is a question of fact 

which should have been charged in the indictment to which he pied guilty or 

determined by a jury. 

II. Discussion 

Since the date on which Mr. Broomfield filed his appeal, the Supreme 

Court issued United States v. Booker, which applies its ruling in Blakely to the 

federal sentencing guidelines. 543 U.S. at_, 125 S. Ct. at 755-76. As a result, 

we review Mr. Broomfield's arguments on appeal in light of Booker and other 

related Supreme Court and Tenth Circuit precedent. In United States v. Moore, 

401 F.3d 1220 (10th Cir. 2005), we held that under Booker, the government is not 

not shown a reasonable probability that remand for the purpose of applying the guidelines 

under an advisory, rather than a mandatory, application would result in a different 

sentence, or that the error was particularly egregious or otherwise seriously affected the 

fairness, integrity, or public reputation of the judicial proceedings. See United States v. 

Magallanez,_ F.3d __ , 2005 WL 1155913 at **9-10 (10th Cir. May 17, 2005); 

United States v. Trujillo-Terrazas, 405 F.3d 814, 819-20 (10th Cir. 2005). 

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required to charge in an indictment or prove to a jury either: 1) the existence of 

prior convictions; or 2) their classification as "violent felonies," when classified 

under a categorical determination and the exceptions thereto. Id. at 1221, 1224-

25 & n.2. 

With respect to the existence of prior convictions, Booker patently 

reaffirms Supreme Court precedent that a prior conviction is an exception to 

factual jury submissions by stating, "[a]ny fact (other than a prior conviction) 

which is necessary to support a sentence exceeding the maximum authorized by 

the facts established by a plea of guilty or a jury verdict must be admitted by the 

defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 

_, 125 S. Ct. at 756 (emphasis added). As a result, it is clear the government 

did not need to charge the "fact" of Mr. Broomfield' s prior conviction in the 

indictment or submit it to a jury. See Moore, 401 F.3d at 1224. 

With respect to the characterization of a prior conviction as a "crime of 

violence," we have held that the trial court is generally required to take a 

categorical approach by looking only to the fact of the conviction and the 

statutory definition of the prior offense. United States v. Hernandez-Rodriguez, 

388 F.3d 779, 782 (10th Cir. 2004) (relying on Taylor v. United States, 495 U.S. 

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575, 602 (1990)). But, when the statute "reaches behavior that may or may not 

encompass conduct that constitutes a crime of violence," we have held an 

exception exists allowing the district court to "look to the charging paper and 

judgment of conviction in order to determine if the actual offense the defendant 

was convicted of qualifies as a crime of violence." Hernandez-Rodriguez, 388 

F.3d at 782-83 (quotation marks and citations omitted). 

Since our decision in Hernandez-Rodriguez and the Supreme Court's 

decisions in Taylor, Blakely, and Booker, the Supreme Court has looked at the 

categorical approach and exceptions thereto in the context of situations where, 

like here, the defendant pied guilty to a prior offense. See Shepard v. United 

States,_ U.S._, 125 S. Ct. 1254 (2005). It explained that a court 

determining the character of the prior offense is "generally limited to examining 

the statutory definition, charging document, written plea agreement, transcript of 

plea colloquy, and any explicit factual finding by the trial judge to which the 

defendant assented." Id. at 1257. We have held this inquiry involves a question 

of law and not fact; therefore, it does not implicate the Sixth Amendment for the 

purpose of requiring the characterization of the offense to be charged in the 

indictment and proven to a jury. See Moore, 401 F.3d at 1224-26. 

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In this case, the district court first applied the categorical approach in 

examining Colo. Rev. Stat. § 18-12-102 to determine if Mr. Broomfield was 

previously convicted for a crime of violence. Clearly, the statute covers two 

different offenses, categorized as either: I) a felony, for possession of a 

dangerous weapon; or 2) a misdemeanor, for possession of an illegal weapon. 

Colo. Rev. Stat.§ 18-12-102(1)-(4). Thus, Mr. Broomfield's conviction for 

violation of§ 18-12-102 does not, by itself, resolve which type of offense he 

committed. Hence, like the district court, we may scrutinize the charging 

document in his state case, but note that because they are not contained in the 

record, we are unable to consider his plea agreement, plea colloquy, and any 

explicit factual findings by the trial judge in his state case. 6 

Despite this record deficiency, the charging document alone sufficiently 

identifies the offense for which Mr. Broomfield received his state conviction. 

While the charging document may mis-title his offense as possession of an 

"illegal weapon," it also clearly states he possessed a "short rifle" and was guilty 

of a "Class 5 Felony" offense, to which he subsequently pied guilty. Thus, it is 

clear Mr. Broomfield' s prior conviction is for felony possession of a "short rifle," 

6 We need not determine whether this inquiry may include consideration of the 

Judgment of Conviction contained in the record on appeal, as we are able to dispose of 

Mr. Broomfield's appeal on the charging document alone. 

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which is considered a "dangerous weapon" under Colo. Rev. Stat. § 18-12-102. 

We have said simple possession of firearms deemed "particularly dangerous," 

such as sawed-off shot guns, constitutes a crime of violence. See Dwyer, 245 

F.3d at 1172. We agree with the government that no meaningful distinction exists 

in this case between a short rifle and a sawed-off shotgun for the purpose of 

defining Mr. Broomfield's offense as a "crime of violence." 

Accordingly, as a matter of law, Mr. Broomfield's prior conviction may be 

characterized as a "crime of violence." Under Booker and the circumstances in 

this case, Mr. Broomfield' s prior state conviction could be used for the purpose of 

increasing his federal sentence, and its characterization as a "crime of violence" 

did not need to be charged in the indictment and proven to a jury. See Moore, 

401 F.3d at 1226. 

III. Conclusion 

For the reasons provided herein, Mr. Broomfield's conviction and sentence 

are AFFIRMED. 

Entered by the Court: 

WADE BRORBY 

United States Circuit Judge 

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