United States v. Garcia-Perez

• Decision Date: 23 February 2015
• Docket Number: No. 13–20482.,13–20482.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Juan GARCIA–PEREZ, also known as Juan Garcia, also known as Johnny Garcia, also known as Guadalupe Garcia, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

779 F.3d 278

UNITED STATES of America, Plaintiff–Appellee

v.Juan GARCIA–PEREZ, also known as Juan Garcia, also known as Johnny Garcia, also known as Guadalupe Garcia, Defendant–Appellant.

No. 13–20482.

United States Court of Appeals, Fifth Circuit.

Feb. 23, 2015.

Jeffery Alan Babcock, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

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

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

Opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Juan Garcia–Perez was convicted of being illegally in the United States after deportation following commission of an aggravated felony. The district court applied a 16–level increase to the base offense level because it determined Mr. Garcia–Perez's prior manslaughter conviction was a “crime of violence” under Sentencing Guideline § 2L1.2(b)(1)(A). Mr. Garcia–Perez argues that manslaughter as defined by the Florida statute of conviction does not qualify as a crime of violence, and thus the increase was error. We agree, vacate, and remand for resentencing.

I.

Juan Garcia–Perez was brought to the United States as an infant in 1969. In 1996, Mr. Garcia–Perez pled no contest to manslaughter under Florida Statute § 782.07. He was deported and re-entered the United States several times. In 2013, Mr. Garcia–Perez pled guilty without a plea agreement to being an alien unlawfully present in the United States after deportation following an aggravated felony. The probation officer calculated the base offense level as 8 under United States Sentencing Guidelines § 2L1.2(a) (2012) and increased the base level by 16 under § 2L1.2(b)(1)(A)(ii) because she found that the 1996 Florida manslaughter conviction was a “crime of violence.” After an acceptance of responsibility adjustment, the final offense level was 21.

Mr. Garcia–Perez objected to the 16–level increase in the PSR on the ground that manslaughter as defined by the Florida statute was not a “crime of violence.” At sentencing, defense counsel renewed Mr. Garcia–Perez's objection, but the district court overruled it. The court sentenced Mr. Garcia–Perez to 87 months in prison, the top of the guideline range, noting that it was tempted to depart upwards, but not doing so.¹

II.

“Generally, this Court reviews the district court's application of the Sentencing Guidelines de novo .... When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only.”² In contrast, an argument is preserved when the basis for objection presented below “gave the district court the opportunity to address” the gravamen of the argument presented on appeal.³ The “objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.”⁴

The government argues that Mr. Garcia–Perez has changed his argument on appeal, and that we should review only for plain error. We disagree. On appeal, as below, Mr. Garcia–Perez argues that the 16–level increase did not apply because the prior conviction which qualified him for the enhancement was not a “crime of violence” under the Sentencing Guidelines. Both below and on appeal, his argument was that Florida's manslaughter definition has no element of force and is not equivalent to “generic contemporary manslaughter.” While his argument has been refined on appeal,⁵ its essence was fairly presented to the district court. As such, we review de novo.

III.

United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2012) provides for a 16–level increase if “the defendant previously was deported ... after ... a crime of violence.”⁶ As the proponent of the increase, it is the government's burden to establish “a factual predicate justifying [the] sentencing adjustment, here that the offense constitutes a crime of violence.”⁷ An offense may qualify as a crime of violence for these purposes in one of two ways: it must either have an element of force or it must fall within the “generic contemporary meaning”⁸ of one of the specifically listed offenses.⁹ Thus, if the Florida manslaughter offense either has an element of force or falls within the generic contemporary meaning of the term “manslaughter,” which appears in the list of qualifying offenses, it is a crime of violence.

In determining whether the Florida offense qualifies for the enhancement, “we look to state law to determine the offense's nature and whether its violation is a crime of violence under federal law.”¹⁰ We also “ ‘look[ ] to the elements of the crime, not to the defendant's actual conduct in committing it.’ ”¹¹ Thus we focus on the statute of conviction, though we may also consult “charging papers to see which of [ ] various statutory alternatives were involved in a particular case.”¹² Here, the parties agree that the statute of conviction is Florida Statute § 782.07(1). At the time of the offense, it stated:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree....¹³

The current version of the section has been amended slightly for form, but remains essentially the same.

A.

We first consider whether the Florida manslaughter offense has an element of force.¹⁴ In order to qualify an offense as a crime of violence under the force prong, “the intentional use of force must be a constituent part of [the prior offense] that must be proved” to convict.¹⁵ “The ‘force’ necessary under this provision must rise to the level of ‘destructive or violent force.’ ”¹⁶

Florida courts have repeatedly set out the elements that must be proved to convict under the manslaughter statute, and an element of force makes no appearance. Rather, the state must show that “(1) the victim is dead, (2) the death was caused by the act, procurement or culpable negligence of the defendant, and (3) the killing was not justified or excusable homicide.”¹⁷ A Florida manslaughter conviction simply does not require proof of force.

Bolstering this conclusion, we have previously held that an “injury to a child” offense defined in terms of the causation of injury by intentional act did not contain a force element.¹⁸ This was because “[i]f any set of facts would support a conviction without proof of that [force] component, then the component most decidedly is not an element ... of the crime.”¹⁹ Intentional injury to a child could be committed by poison, for example, which would not be “use of physical force” for these purposes.²⁰ This holding logically extends to offenses defined in terms of the causation of death, such as the Florida statute at issue. We find that § 782.07(1) does not have an element of force.

B.

We now turn to the second, closer question: whether Florida's manslaughter provision falls within the list of enumerated “crimes of violence” for purposes of § 2L1.2(b)(1)(A). “Manslaughter” is one of the Guidelines Manual's listed “crimes of violence” which qualify for the contested enhancement,²¹ but that observation does not end our inquiry. Rather, we must determine what the Sentencing Guidelines mean by the term “manslaughter” and then decide whether the Florida manslaughter offense falls within that definition.²² The parties' dispute centers on the mental state required with respect to death by the Florida manslaughter statute, so we focus our discussion on that issue.

Because the Guidelines Manual does not define “manslaughter” as it applies to the crime of violence enhancement at issue, “we must define it according to its generic contemporary meaning, and should rely on a uniform definition, regardless of the labels employed by the various States' criminal codes.”²³ The inquiry is simple for our purposes because we have already held that generic contemporary manslaughter requires a mental state of either intent to kill or recklessness—“conscious disregard of perceived homicidal risk.”²⁴

1.

We proceed to compare the mental state required by generic contemporary manslaughter to that required by the Florida manslaughter statute of conviction. The parties agree that Mr. Garcia–Perez may have been convicted of manslaughter by act, by procurement, or by culpable negligence. Because the conviction may rest on any one of these three methods,²⁵ we must determine whether the “least culpable” of the three qualifies as generic contemporary manslaughter.²⁶ If the least culpable prong of § 782.07(1) requires either recklessness as to death or intent to kill, then the section as a whole falls within the definition of generic contemporary manslaughter and there was no error in imposing the enhancement.

In Chan–Gutierrez, an unpublished opinion, we held that “[t]he least culpable act under the Florida manslaughter statute is manslaughter by culpable negligence” and that “culpable negligence” is equivalent to generic contemporary manslaughter's “recklessness” requirement.²⁷ No party challenges the holding that culpable negligence is equivalent to recklessness. Instead, Mr. Garcia–Perez argues that Chan–Gutierrez was mistaken in holding culpable negligence manslaughter to be the least culpable act under § 782.07(1). To the contrary, he argues that act and procurement manslaughter are less culpable conduct and fall outside of “generic contemporary manslaughter” because they do not require recklessness as to death or intent to kill.

2.

a.

To determine the mental state required for commission of manslaughter by act,²⁸ we turn to Florida case law. In line with earlier ...