U.S. v. Dominguez-Ochoa

• Decision Date: 22 September 2004
• Docket Number: No. 03-41260.,03-41260.
• Citation: 386 F.3d 639
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felipe de Jesus DOMINGUEZ-OCHOA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

386 F.3d 639

UNITED STATES of America, Plaintiff-Appellee, v. Felipe de Jesus DOMINGUEZ-OCHOA, Defendant-Appellant.

No. 03-41260.

United States Court of Appeals, Fifth Circuit.

September 22, 2004.

Mitchel Neurock (argued), Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Kyle Blair Welch, Laura Fletcher Leavitt, Asst. Fed. Pub. Def. (argued), Houston, TX, for Dominguez-Ochoa.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE and PICKERING, Circuit Judges, and LYNN, District Judge^*.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether, for Sentencing Guidelines purposes, criminally negligent homicide under Texas law is equivalent to manslaughter and, therefore, an enumerated crime of violence under Guidelines § 2L1.2, permitting the 16-level enhancement imposed against Felipe de Jesus Dominguez-Ochoa. See U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii)(II) (2002). Criminally negligent homicide has a mens rea of negligence; generic, contemporary manslaughter, of recklessness. Therefore, the two offenses are not equivalent. The enhancement is VACATED; the case is REMANDED for resentencing.

I.

After a criminal information charged Dominguez with murder, the State moved to reduce the charge. He pleaded guilty in April 2002 to criminally negligent homicide and was sentenced to 14 months' imprisonment. Dominguez (a Mexican citizen) was released in November 2002 and deported to Mexico in January 2003.

Within a few days, he was found by Border Patrol Agents near Alamo, Texas. Dominguez pleaded guilty to being found in the United States after deportation without having obtained the consent of the Attorney General to reapply for admission. 8 U.S.C. §§ 1326(a) and (b).

The presentence investigation report (PSR) recommended a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), taking the position that Dominguez' deportation had followed a conviction for a crime of violence — the criminally negligent homicide to which he had pleaded guilty. Dominguez objected to the enhancement, claiming that offense was not a crime of violence. The district court overruled the objection and sentenced Dominguez, inter alia, to 57 months' imprisonment.

II.

In addition to contesting the enhancement, Dominguez claims the "felony" and "aggravated felony" provisions of 8 U.S.C. §§ 1326(b)(1) and (b)(2) are unconstitutional but acknowledges the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The issue is raised only to preserve it for possible review by the Supreme Court.

Accordingly, the remaining issue to address concerns the enhancement. For that issue, the district court's guidelines interpretation is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Washington, 340 F.3d 222, 231 (5th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 942, 157 L.Ed.2d 757 (2003).

Section 2L1.2's commentary defines a "crime of violence" in two ways (subparts I and II). It

(I) means an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another; and

(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii)(I) and (II) (emphasis added). Texas criminally negligent homicide occurs when a person "causes the death of an individual by criminal negligence". TEX. PEN.CODE § 19.05. "Criminal negligence" is defined by statute.

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

TEX. PEN.CODE § 6.03(d) (emphasis added).

Dominguez contends Texas criminally negligent homicide is not a § 2L1.2 crime of violence. He maintains: concerning subpart (I), and as he urged in district court, it does not include as an element the intentional "use, attempted use, or threatened use" of force; and, concerning subpart (II), it is not one of the enumerated offenses.

The district court appears to have considered the underlying facts of Dominguez' criminally negligent homicide conviction in concluding that the offense was a crime of violence under subpart (I). Several months after Dominguez was sentenced, however, our court decided United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc) (use of force required for 16-level enhancement under subpart (I) must be intentional). In the light of that decision, the Government does not claim criminally negligent homicide is a crime of violence under subpart (I).

Instead, it claims the enhancement was proper under subpart (II): Texas criminally negligent homicide is equivalent to the enumerated crime of "manslaughter". See U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii)(II). Our court may uphold the district court's ruling on any basis presented in district court and established by the record. See, e.g., United States v. Flores, 135 F.3d 1000, 1002 (5th Cir.) (may affirm on any ground urged in district court), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). Although the Government did not specifically contend at sentencing that criminally negligent homicide was a crime of violence under subpart (II), the PSR recommended the 16-level enhancement because "Dominguez was convicted of criminally negligent homicide, a crime of violence, pursuant to Commentary Application Note (B)(ii)(I) and (II)". (Emphasis added.)

According to the Government, although "criminally negligent homicide" is not one of subpart (II)'s enumerated crimes of violence, the offense is the equivalent of the enumerated offense of manslaughter. Relying principally on Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (holding "burglary" within the meaning of the sentence enhancement statute refers to any crime, regardless of its exact definition or label, having the basic elements of generic, contemporary burglary), the Government maintains the elements of Texas criminally negligent homicide are included in those of manslaughter.

The parties agree on several points: manslaughter in subpart (II) includes both voluntary and involuntary manslaughter; only the elements of involuntary manslaughter are relevant for this analysis, because voluntary manslaughter and criminally negligent homicide require different levels of intent; all formulations of involuntary manslaughter and Texas criminally negligent homicide share the element of one person's causing the death of another; and, therefore, at issue are the proper mens rea for involuntary manslaughter and whether it is the same as that for criminally negligent homicide. Essentially, the Government claims involuntary manslaughter includes both a "reckless" and "criminally negligent" mens rea; Dominguez, that "recklessness" is the only relevant manslaughter mens rea for this enhancement analysis.

The Texas Penal Code defines manslaughter as "recklessly" causing the death of another, TEX. PEN.CODE § 19.04; on the other hand, as stated, criminally negligent homicide is defined as causing the death of another "by criminal negligence" ("ought to be aware"), TEX. PEN.CODE § 19.05. For our equivalence analysis, however, Taylor precludes use of the specific definition of manslaughter applied by the state of conviction. Taylor, 495 U.S. at 590-91, 110 S.Ct. 2143.

Relying on Taylor, the Government describes at length the common law history of manslaughter and its inclusion of various forms of mens rea, including criminal negligence. See United States v. Browner, 889 F.2d 549, 551-53 (1989)(same). As Taylor demonstrates with respect to burglary, however, the common law is not the source for defining the enumerated offense of manslaughter for this sentence enhancement analysis.

The problem with [looking to the common law] is that the contemporary understanding of "burglary" has diverged a long way from its commonlaw roots.... The arcane distinctions embedded in the common-law definition have little relevance to modern law enforcement concerns.... In the absence of any specific indication that Congress meant to incorporate the common-law meaning of burglary, we shall not read into the statute a definition of "burglary" so obviously ill suited to its purposes.

Taylor, 495 U.S. at 593-94, 110 S.Ct. 2143; see Browner, 889 F.2d at 551-53. Taylor instructs that where, as here, the enhancement provision does not specifically define the enumerated offense, we must define it according to its "generic, contemporary meaning", 495 U.S. at 598, 110 S.Ct. 2143, and should rely on a uniform definition, regardless of the "labels employed by the various States' criminal codes", id. at 592, 110 S.Ct. 2143. After observing that the enhancement statute did not define burglary, Taylor looked to other sources of authority (the Model Penal Code and W. LaFave & A. Scott, SUBSTANTIVE CRIMINAL LAW (1986)) in order to determine its generic meaning.

A.

As discussed, § 2L1.1 does not define manslaughter (or involuntary manslaughter). Likewise, elsewhere in the guidelines, § 2A1.4, entitled "Involuntary Manslaughter", does not define the offense. Section 2A1.4 concerns, inter alia, the federal crime of manslaughter, 18 U.S.C. § 1112, discussed infra, when it is involuntary, as defined in § 1112. Although § 2A1.4 does not define involuntary manslaughter, it...