United States v. Lobaton-Andrade, 15-41744

• Decision Date: 09 February 2017
• Docket Number: No. 15-41744,15-41744
• Citation: 861 F.3d 538
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Lazaro LOBATON–ANDRADE, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

861 F.3d 538

UNITED STATES of America, Plaintiff-Appellee

v.Lazaro LOBATON–ANDRADE, Defendant-Appellant

No. 15-41744

United States Court of Appeals, Fifth Circuit.

Filed February 9, 2017

Revised February 13, 2017

John A. Reed, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee

Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, Federal Public Defender's Office, Southern District of Texas, Houston, TX, Lindsay Bellinger, Houston, TX, for Defendant-Appellant

Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.

PER CURIAM:

Defendant–Appellant Lazaro Lobaton–Andrade pleaded guilty to illegal reentry after deportation and was sentenced to 46 months of imprisonment. Lobaton–Andrade appeals his sentence, asserting that a 2007 Arkansas manslaughter conviction does not qualify as "manslaughter," an enumerated "crime of violence" offense under United States Sentencing Guidelines § 2L1.2. Thus, Lobaton–Andrade contends, the district court erred in applying a 16-level crime of violence sentencing enhancement based on that conviction. We agree, and we VACATE his sentence and REMAND to the district court for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Defendant–Appellant Lazaro Lobaton–Andrade pleaded guilty, pursuant to a plea agreement, to manslaughter in Arkansas. At the time of Lobaton–Andrade's commission of that offense, Arkansas's manslaughter statute, Arkansas Code § 5–10–104, provided, in pertinent part, that:

(a) A person commits manslaughter if:

(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse....

(2) He purposely causes or aids another person to commit suicide;

(3) He recklessly causes the death of another person; or

(4) Acting alone or with one (1) or more persons he commits or attempts to commit a felony, and in the course of and in furtherance of the felony or in immediate flight therefrom:

(A) He or an accomplice negligently causes the death of any person....

The information charged Lobaton–Andrade with violating § 5–10–104(a)(1) (i.e. , charged that he caused the death of another under extreme emotional disturbance), but also alleged that Lobaton–Andrade "did recklessly cause the death of [another]."¹ After serving his sentence in Arkansas, Lobaton–Andrade was deported from the United States.

Lobaton–Andrade was subsequently found by immigration officials in Brooks County, Texas, and charged with one count of being an alien who was unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Lobaton–Andrade pleaded guilty, without a plea agreement, and a presentence investigation report ("PSR") was prepared using the 2014 edition of the United States Sentencing Guidelines. The PSR recommended a base offense level of 8 pursuant to § 2L1.2(a) of the Guidelines. It also recommended a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii), concluding that Lobaton–Andrade's 2007 Arkansas manslaughter conviction constituted a "crime of violence" for which he received criminal history points. After reducing Lobaton–Andrade's offense level by 3 because of his acceptance of responsibility, the PSR calculated a total offense level of 21. This total offense level, combined with a criminal history category of III, yielded an advisory sentencing range of 46 to 57 months of imprisonment.

Lobaton–Andrade objected to the 16-level enhancement based on the PSR's designation of his 2007 Arkansas conviction as a "crime of violence." Lobaton–Andrade argued that the Arkansas offense did not constitute the enumerated offense of "manslaughter" for purposes of § 2L1.2 because Arkansas permits conviction for manslaughter with a mens rea of only negligence. See Ark. Code Ann. § 5–10–104(a)(4). The Government argued in response that the Arkansas manslaughter statute was divisible and the record documents from Lobaton–Andrade's prior case established that he was convicted for committing the offense with a mens rea of recklessness. See id. § 5–10–104(a)(3). At the sentencing hearing, Lobaton–Andrade reaffirmed his objection, which the district court overruled. The district imposed a sentence of 46 months of imprisonment, the low end of the advisory range, as well as a $100 special assessment. Lobaton–Andrade timely appealed.

II. THE CRIME OF VIOLENCE ENHANCEMENT

Lobaton–Andrade challenges the application of the district court's crime of violence enhancement based on his 2007 Arkansas manslaughter conviction. Because Lobaton–Andrade properly preserved his objection to that enhancement, we review whether his prior conviction qualifies as a crime of violence under the Guidelines de novo. See United States v. Hinkle , 832 F.3d 569, 574 (5th Cir. 2016).

Under the Guidelines, a defendant who is convicted of illegal reentry receives a 16-level enhancement to his base offense if he was previously deported after a felony conviction for a "crime of violence."

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to the Guidelines defines "crime of violence" to include, in pertinent part, "manslaughter." U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The threshold issue raised by this appeal is whether the Arkansas manslaughter statute is divisible, such that Lobaton–Andrade's offense of conviction might be narrowed to "recklessly caus[ing] the death of another person," which is a categorical match for manslaughter under the Guidelines. Ark. Code Ann. § 5–10–104(a)(3). If the statute is not divisible, the parties agree that Lobaton–Andrade's conviction under the Arkansas manslaughter statute would not qualify for a crime of violence enhancement under the Guidelines.

A. The Categorical and Modified Categorical Approaches

The concept of divisibility derives from the so-called "categorical" and "modified categorical" approaches we use to determine whether a defendant's conviction qualifies as an enumerated offense. We generally employ the categorical approach in determining whether a prior conviction is included within an offense enumerated in the Guidelines. See, e.g. , United States v. Howell , 838 F.3d 489, 494 (5th Cir. 2016) ; Hinkle , 832 F.3d at 572. "Under this approach, [we] line up the elements of the prior offense with the elements of the generic [enumerated] offense ... to see if they match." Gomez–Perez v. Lynch , 829 F.3d 323, 326 (5th Cir. 2016). "[I]f the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense." Id. at 327. Importantly, the categorical approach "do [es] not consider the actual conduct of the defendant in committing the offense," Howell , 838 F.3d at 494, but is instead limited to "the fact of conviction and the statutory definition of the prior offense," Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, "even if the defendant's actual conduct (i.e. , the facts of the crime) fits within the generic offense's boundaries," a prior conviction is not a qualifying offense if the statute defines the offense more broadly than the Guidelines. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).

Here, the parties agree that Lobaton–Andrade's conviction does not qualify as a crime of violence under the categorical approach because the Arkansas manslaughter statute is broader than—and thus not a categorical match with—the generic definition of manslaughter. But that does not end the inquiry because we may apply the modified categorical approach "to narrow an offense that otherwise would not be a categorical match with an enumerated offense." Gomez–Perez , 829 F.3d at 326. However, that approach only applies when a statute is "divisible," meaning it "sets out one or more elements of the offense in the alternative." Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In such cases, a court may "consult a limited class of documents ... to determine which alternative formed the basis of the defendant's prior conviction." Id. The documents that a court may consult—commonly referred to as Shepard documents—include the indictment or information from the earlier conviction, as well as "the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant." Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Recently, in Mathis v. United States , the Supreme Court resolved a split among the circuits regarding what qualifies as a divisible statute, clarifying that a statute is only divisible (and, therefore, subject to the modified categorical approach) if it creates multiple offenses by listing one or more alternative elements, as opposed to merely listing alternative means of satisfying a particular element.² Mathis , 136 S.Ct. at 2251–54 ; see also, e.g. , Gomez–Perez , 829 F.3d at 326–27. "The practical difference being that a jury has to agree on one of multiple elements that a statute lists, whereas the jury need not agree on the same alternative means so long all jurors conclude that the defendant engaged in one of the possible means of committing a crime." Gomez–Perez , 829 F.3d at 327. Thus, in light of Mathis , we have recognized that "[t]he test to distinguish means from elements is whether a jury must agree." Howell , 838 F.3d at 497 ; see also Hinkle , 832 F.3d at 575 ("[T]here is a difference between alternative elements of an offense and alternative means of satisfying a single element. Elements must be agreed upon by a jury." (footnote omitted)).

When " ‘a state court decision definitively answers the [means or elements] question’ " by specifying that there need not be agreement among the jury as to the alternatively phrased items, ...