Law360 (October 27, 2026, 10:38 PM EDT) -- The Tenth Circuit ruled that a man convicted of killing an Oklahoma state trooper nearly 30 years ago cannot have a portion of his conviction dropped, finding Tuesday that under federal law, killing a law enforcement officer in furtherance of a drug offense meets the definition of a crime of violence. 

The three-judge panel ruled that recent U.S. Supreme Court precedent does not entitle Kenneth Eugene Barrett to resentencing because the mental state requirement to sustain the killing of a law enforcement officer charge is sufficient to meet the crime of violence threshold under federal law. 

"At the outset, Mr. Barrett's suggestion that the term 'causes' in criminal statutes is typically untethered to a particular mens rea is at odds with the 'longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state,'" U.S. Circuit Judge Jerome A. Holmes said in the opinion. The opinion added that Congress deliberately modified laws used to charge Barrett so that the mental state requirement was clear.

In 1999, an Oklahoma state court issued a warrant for Barrett for failing to appear at trial related to delivering controlled substances. Barrett eluded arrest for eight months until a tip from a confidential informant said he was manufacturing methamphetamine in his home, the opinion said.

State police applied for a warrant and in the early morning hours in September 1999, law enforcement executed a no-knock raid on Barrett's home. Barrett met law enforcement with a hail of rifle fire that killed one state trooper and wounded another, the opinion said.

Barrett was first tried in state court charged with first-degree murder, and in 2002 his first trial ended in a hung jury. Two years later another jury acquitted Barrett of murder but convicted him of manslaughter and assault and battery with a dangerous weapon, the opinion said.

Barrett was sentenced to 30 years in prison, and after his state sentencing, federal prosecutors announced they would also be charging him in the shootings. Barrett was indicted for three offenses: using and carrying a firearm during drug trafficking, using and carrying a firearm in relation to a crime of violence, and intentionally killing a law enforcement officer during a drug trafficking crime, the opinion said.

A federal jury convicted Barrett on all three counts, recommending a life sentence for the first two counts and the death penalty for intentionally killing a law enforcement officer. A federal judge accepted the jury's recommendation for sentencing, issuing Barrett the death penalty, the opinion said.

Barrett's case then proceeded to bounce between district court and federal appeals, with the Tenth Circuit first affirming his death sentence on direct appeal. Barrett then filed a number of post-conviction relief petitions, which included a claim that his counsel was ineffective, the opinion said.

The ineffective counsel motion argued that his counsel failed to present evidence at sentencing of his background and mental health. The Tenth Circuit allowed one of Barrett's claims to move forward, and a seven-day hearing was held, the opinion said.

The Tenth Circuit ultimately vacated Barrett's death sentence and remanded for resentencing on his charge of killing a law enforcement officer. Barrett also filed a second set of motions while the ineffective counsel motions were pending, arguing he was incorrectly charged with a crime of violence specification, the opinion said.

Barrett argued that in light of the 2019 U.S. Supreme Court case of United States v. Davis , language in the law used to convict him of a crime of violence was unconstitutionally vague. Barrett instead argued that because of the lower mental state threshold needed to convict for the intentional killing of a law enforcement officer, he should not also be charged with a crime of violence under federal law, the opinion said.

The panel assumed for the purposes of its analysis that the district court likely relied on the now-unconstitutionally vague language, but that the conviction can still be upheld under a different portion of the crime of violence law. Barrett could still be convicted of a crime of violence under a different section of the law, which was not ruled unconstitutional under Davis, the opinion said.

An attorney for Barrett and a spokesperson for the U.S. Department of Justice did not respond to a request for comment.

U.S. Circuit Judges Jerome A. Holmes, David M. Ebel and Joel M. Carson III sat on the panel for the Tenth Circuit.

The government is represented by Scott A.C. Meisler, Nicole M. Argentieri, David Rody and Jeffrey B. Kahan of the U.S. Department of Justice and by Christopher J. Wilson and Linda Epperley of the U.S. Attorney's Office for the Eastern District of Oklahoma.

Barrett is represented by Howard A. Pincus and Virginia L. Grady of the Office of the Colorado Federal Public Defender.

The case is United States v. Kenneth Eugene Barrett, case number 23-7086 in the U.S. Court of Appeals for the Tenth Circuit.

--Editing by Bruce Goldman.

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