United States v. Rivera-Muniz

• Decision Date: 20 April 2017
• Docket Number: No. 15-10560,15-10560
• Citation: 854 F.3d 1047
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hugo Salvador RIVERA-MUNIZ, AKA Hugo Salvador Rivera, AKA Hugo Salvadore Rivera, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

854 F.3d 1047

UNITED STATES of America, Plaintiff-Appellee,

v.Hugo Salvador RIVERA-MUNIZ, AKA Hugo Salvador Rivera, AKA Hugo Salvadore Rivera, Defendant-Appellant.

No. 15-10560

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 16, 2016 San Francisco, California

Filed April 20, 2017

Stephanie Bond (argued), The Law Offices of Stephanie K. Bond P.C., Tucson, Arizona, for Defendant-Appellant.

Lauren G. LaBuff (argued), and Christina M. Cabanillas, Assistant United States Attorneys; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and Leslie E. Kobayashi,^* District Judge.

OPINION

KOBAYASHI, District Judge:

This appeal questions whether a conviction for manslaughter under California Penal Code section 192(a) is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines").¹ We review the district court's determination that Rivera-Muniz's prior conviction constitutes a crime of violence de novo. United States v. Marcia-Acosta , 780 F.3d 1244, 1248 (9th Cir. 2015). We affirm.

I

On July 8, 2015, Rivera-Muniz pleaded guilty to reentering the United States without authorization after having been deported or removed in violation of 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2). At the sentencing hearing, the district court considered Rivera-Muniz's previous conviction for voluntary manslaughter under California Penal Code section 192(a) and concluded that it was an enumerated crime of violence that triggered a 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). However, the district court also applied a 7-level downward variance, thus sentencing Rivera-Muniz to twenty-seven months of imprisonment and three years of supervised release.

Rivera-Muniz challenges the 16-level enhancement, arguing that California Penal Code section 192(a) is not categorically a crime of violence.

II

The relevant Sentencing Guideline provides a base level offense of 8, and a 16-level increase if the defendant was previously deported after a conviction for, inter alia , a "crime of violence." U.S.S.G. § 2L1.2(a)–(b).² The definition of "crime of violence" includes an enumerated list of crimes, including "manslaughter."³ Id. § 2L1.2 cmt. n.1(B)(iii).

"The fact that manslaughter is specifically enumerated in the Sentencing Guidelines' definition strongly indicates that the offense of manslaughter qualifies as a ‘crime of violence’ under § 2L1.2(b)(1)(A)(ii)." United States v. Mendoza-Padilla , 833 F.3d 1156, 1158 (9th Cir. 2016). However, "the Supreme Court has directed us to look beyond the label applied to an offense by the state legislature and consider whether the substance of the offense matches the ‘generally accepted contemporary meaning of [the] term.’ " United States v. Gomez-Leon , 545 F.3d 777, 790 (9th Cir. 2008) (alteration in original) (quoting Taylor v. United States , 495 U.S. 575, 596, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Under this analysis—the categorical approach—the court examines "only the fact of conviction and the statutory definition of the prior offense." United States v. Parnell , 818 F.3d 974, 978 (9th Cir. 2016) (citation and internal quotation marks omitted). Moreover, "we do not look to the specific conduct that was the basis of a defendant's state convictions." United States v. Velasquez-Reyes , 427 F.3d 1227, 1229 (9th Cir. 2005).⁴

The statute at issue here, California Penal Code section 192(a), defines voluntary manslaughter as "the unlawful killing of a human being without malice ... upon a sudden quarrel or heat of passion."⁵ Malice "is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature," and "implied ... when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." Cal. Penal Code § 188.

III

On appeal, Rivera-Muniz contends that California Penal Code section 192(a) is not a categorical crime of violence under U.S.S.G. § 2L1.2 for two reasons. First, Rivera-Muniz argues that, because we have held that a conviction under section 192(a) was not a crime of violence under 18 U.S.C. § 16, see Quijada-Aguilar v. Lynch , 799 F.3d 1303, 1306–07 (9th Cir. 2015), the district court should have applied the same analysis to crimes of violence as defined by U.S.S.G. § 2L1.2. Second, Rivera-Muniz argues that the district court should have considered case law and jury instructions, which make it clear that the California statute allows for a conviction of voluntary manslaughter as a lesser-included offense of murder when a defendant acts in unreasonable or imperfect self-defense.⁶ According to Rivera-Muniz, California's inclusion of imperfect self-defense within the definition of voluntary manslaughter makes that offense broader than the generic definition of voluntary manslaughter, and, accordingly, not a categorical crime of violence. We disagree with both reasons and hold that California Penal Code section 192(a) categorically matches the contemporary, generic definition of manslaughter.

A

Quijada-Aguilar 's conclusion that a conviction under section 192(a) is not a crime of violence under 18 U.S.C. § 16 does not resolve this case. There, we held that a conviction under section 192(a) is not a crime of violence under 18 U.S.C. § 16 because California permits a conviction for voluntary manslaughter with a mens rea of recklessness, while 18 U.S.C. § 16 requires "proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission." Quijada-Aguilar , 799 F.3d at 1306. Unlike 18 U.S.C. § 16(a), which defines crimes of violence as those involving the "use, attempted use, or threatened use of physical force," the Sentencing Guidelines provide two avenues by which a crime can constitute a crime of violence. First, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) enumerates several offenses that constitute crimes of violence per se. Gomez-Leon , 545 F.3d at 788. Second, § 2L1.2 cmt. n.1(B)(iii) contains a "residual clause" that encompasses crimes that have "as an element the use, attempted use, or threatened use of physical force." The residual clause is "materially the same as the elements test from 18 U.S.C. § 16(a) and is subject to the same construction, which means that it covers only convictions for an offense that requires proof of the intentional use of force." Id. (footnote omitted).

We agree that, if we were limited to the "use, attempted use, or threatened use of physical force against the person of another" language of 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), Quijada-Aguilar would compel us to conclude that California Penal Code section 192(a) is not a crime of violence. However, we are not limited to this language and must take into account the fact that manslaughter is an enumerated offense. See Id. at 787.

In Gomez-Leon , we explained that the definition of "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) includes an enumerated list of offenses that "constitute ‘crimes of violence’ per se."⁷ Id. at 788. Therefore, if the predicate offense is manslaughter, "the underlying conviction need not be for an offense that involves the intentional use of force." Id. at 789. Thus, Rivera-Muniz's argument that a conviction under section 192(a) is not a crime of violence because it permits a conviction for voluntary manslaughter with a mens rea of recklessness is only relevant if the generic definition of voluntary manslaughter requires something more than recklessness.

"When the enumerated offense is a traditional crime, such as manslaughter, we derive its uniform meaning from the generic, contemporary meaning employed by most states, guided by scholarly commentary." Id. at 790. Our previous cases and those in other circuits establish that a mens rea of recklessness suffices to sustain a conviction for voluntary manslaughter under the generally accepted definition. The meaning of contemporary manslaughter includes both voluntary and involuntary forms of the offense. Id. at 791. We have adopted the Fifth Circuit's holding in United States v. Dominguez-Ochoa , 386 F.3d 639 (5th Cir. 2004), and concluded that "the modern view appears to be that recklessness is an element" of manslaughter. Gomez-Leon , 545 F.3d at 791 ; see also United States v. Kosmes , 792 F.3d 973, 977 (8th Cir. 2015) ("In finding that the Model Penal Code provides the best generic federal definition, we hold that ‘manslaughter’ as enumerated in the Guidelines means a criminal homicide that is committed (a) recklessly or (b) intentionally if committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse."); United States v. Garcia-Perez , 779 F.3d 278, 284 (5th Cir. 2015) ("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."); 2 Wayne R. LaFave, Substantive Criminal Law , § 15.4(a) (2d ed. 2007).

Under California law, a mens rea of at least recklessness is required to sustain a voluntary manslaughter conviction. See People v. Lasko , 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, 672 (2000). Thus, at least when it comes to the mens rea element, there is a categorical match between California Penal Code section 192(a) and the generic, contemporary meaning of the offense.

B

Rivera-Muniz's argument that California Penal Code section 192(a) is broader than the generic definition of voluntary manslaughter because it encompasses convictions for unreasonable self-defense also fails. Rivera-Muniz concedes that section 192(a) is virtually identical to its federal counterpart, 18 U.S.C. § 1112(a), which reads:

Manslaughter is the

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