*1 think is no reason to there al.16 Because hear
that, notice and a appropriate given anything would have said
ing, Rosson difference, Rosson was made a
could have deficien by any procedural prejudiced
not did bankruptcy that the court
cy. holdWe denying abuse its discretion converting the case
motion to dismiss Leavitt, at 1223 7. 171 F.3d Chapter See
(“[An] may affirm the low appellate court fairly supported by any ground on
er court record.”).
AFFIRMED. America,
UNITED STATES
Plaintiff-Appellee, GOMEZ-LEON, Defendant-
Javier
Appellant.
No. 05-50138. Appeals,
United States Court
Ninth Circuit. 4, 2008. and Submitted March
Argued Sept.
Filed that, proceeds with that should although bankruptcy case and abscond 16. We note of this estate”'— to creditors for a be distributed recited the deferential standard court reconsideration, reject- would have makes clear that the court its order —which motion for it had entertained miscarriage even if gross ed Rosson's claim would be a "[i]t states that anew. Rosson’s motion justice to dismiss this to allow the Debtor
The district court sentenced Gomez to 84 imprisonment based on an adviso- months’ ry range of months. Guidelines advisory arrived at The district court range beginning with base offense eight, applying level of a sixteen-level en- hancement 2L1.2(b)(l)(A) (prescribing an increase if sentencing range the defendant was “crime previously convicted a of violence” “drug trafficking or a offense for which the months”), imposed exceeded sentence granting for ac- two-level reduction ceptance responsibility, U.S.S.G. was, § 3E1.1. Gomez’s total offense level therefore, appeal, twenty-two. On Gomez *5 argues the district court erred the un- applying sixteen-level enhancement (ii). 2L1.2(b)(l)(A)(i) der & We reverse Ball, Lynn H. Law H. Lynn Office re-sentencing. and remand for CA, Ball, for Diego, San the defendant- long a national Gomez is Mexican with a appellant. history deportation and unlawful behav- Salel, Timothy F. Assistant United country illegally He the ior. entered Diego, CA, the Attorney, for States San early as 1994. In he came to the plaintiff-appellee. immigration when attention authorities driving for a un- he was convicted vehicle der the influence of alcohol and without year, That he removed license. same was hearing removal be- following to Mexico then immigration judge. fore Gomez GIBSON,* Before: R. JOHN country illegally. the In reentered O’SCANNLAIN, DIARMUID F. violating he was convicted of California GRABER, Judges. P. Circuit SUSAN 11379(a), an section Safety Health & Code involving controlled substances. GIBSON; Opinion Judge Partial again in was to Mexico once He removed by Judge Partial Concurrence and Dissent illegally again 1999. Gomez reentered O’SCANNLAIN. in 2000 of re- country. He was convicted GIBSON, Judge: Circuit ceiving driving and of goods stolen to Mexico the influence. He was removed guilty Gomez-Leon was found Javier third time in 2000. On November attempted entry into the district court of in California state he was convicted deportation, after States in- of vehicular while following non-jury trial. court U.S.C. * Gibson, sitting by designation. John R. Senior United The Honorable Circuit, Judge Eighth States Circuit gross drug CaLPe negligence, toxicated without both Gomez’s conviction under Cali- 192(c)(3) (1998),1 Safety for which he Health nal Code fornia & Code section 11379(a) years’ two imprisonment. sentenced and his conviction for was vehicular release, Following intoxicated, Gomez once manslaughter his was while without again removed to Mexico 2004. Six negligence, CaLPenal gross Code later, days was at 192(c)(3), offenses, Gomez arrested justi- were predicate charged Mexico-United border and States fying the enhancement. reen attempted
with instant offense component of challenges Gomez each try. non-jury trial, Following a Gomez findings. us to his urges these He reverse to 84 guilty was found sentenced sentence because the district court erred imprisonment years months’ with three (1) by finding that his conviction under supervised release. Safety California Health & Code section appellate trafficking Gomez’s was a arguments “drug various offense for stem from a sixteen-level enhancement which the sentence imposed exceeded (2) months”; applied district court to his advi- his conviction for California sory sentencing range neg under U.S.S.G. without gross vehicular 2L1.2(b)(l)(A), 192(c)(3), which requires ligence, such an CaLPenal was violence”; felony enhancement “crime of he was lawfully deported unlawfully remained previously deport- [i]f defendant country following either of those ed, or unlawfully remained in the United convictions.2 States, after— (A) (i) *6 a for a felony conviction that is a “We novo review de the district drug trafficking which offense for interpretation the court’s United States imposed the sentence exceeded 13 ..., Sentencing Guidelines review for clear (iii) (ii) violence; months; a crime of error the district factual determina court’s (iv) offense; por- a firearms a child tions, and review for abuse discretion (v) offense; nography a national se- applications the district court’s of the (vi) offense; curity or terrorism a Guidelines to the v. facts.” United States (vii) offense; trafficking human or (9th Cir.2007). Holt, 1007, 510 F.3d 1010
an smuggling alien offense.... We must if district reverse the court com govern- For the to apply, significant error, enhancement the a procedural mitted such ment must that incorrectly calculating show the defendant was advisory the lawfully from range. removed the United States sentencing Guidelines’ Gall — States, being -, after convicted of a predicate of- United U.S. 128 S.Ct. 597, 586, (2007); fense. Id. The court that district found 169 445 L.Ed.2d United January 1. The argues California Code was revised on Gomez also that his sentence violates 1, 2007, after Gomez was The convicted. the Sixth Amendment because the current Penal California Code section find, upon court to prepon- district based a 192(c)(3) materially the different than ver- evidence, that he derance committed applied sion which in 2003. We to cite the prior felony. Supreme The Court has made 2003, version of the code was in effect in that the prior clear fact of a conviction need when Gomez was convicted. current The proved beyond jury not be to a a reasonable version of California Penal section Booker, 220, United doubt. States v. 543 U.S. 191.5(b) (2007) is, respects in all to material 244, 738, (2005). 125 S.Ct. L.Ed.2d 621 case, substantially this same as ver- Consequently, argument Gomez’s is foreclos- 192(c)(3) sion of section in effect in 2003. See ed. 192(c)(3) (1998). CaLPenal Code (9th 984, imposed Carty, F.3d 991-93 the sentence convic- States v. — Cir.) (en denied, banc), U.S.-, tion thirteen did exceed months. cert. (2008). 2491, L.Ed.2d 780 S.Ct.
A. I. In to if order determine Gomez’s “drug California conviction was for a traf if we that even hold argues Gomez offense,” ficking we must apply Taylor predicate his that one of convictions was categorical approach, Taylor v. United 2L1.2(b), he was under U.S.S.G. offense States, 575, 2143, 495 U.S. S.Ct. “lawfully deported” never after either of (1990), L.Ed.2d 607 wherein we compare 1999, 2000, those convictions because his statutory definition of underlying that occurred and 2004 removals —those to the Guidelines definition of a the predicate after one of convictions— “drug trafficking offense.” Id. at officer, immigration were authorized an 2143; S.Ct. United States Navidad- During immigration judge. not an (9th Marcos, 367 F.3d Cir. appeal, this pendency argu of Gomez’s 2004). commentary 2L1.2 of the ment has been foreclosed. In Morales- trafficking “drug Guidelines defines a of Gonzales, Izquierdo v. 486 F.3d federal, state, fense” as “an offense under Cir.2007) (en banc), we held that re prohibits or law local the manufac pursuant an officer immigration moval ture, distribution, import, or export, dis lawful. prior removal order is Go of a ... pensing controlled substance or initial mez’s removal occurred fol possession of controlled substance immigration lowing hearing before manufacture, ... intent import, with States, to the judge. He returned distribute, export, dispense.” conviction, the crimes of committed l(B)(iv). cmt. held 2L1.2 We have times, was then removed three additional the California offense under section July occurring the latest removal 11379(a)3 is broader than the Guidelines’ his most recent convic following California “drug trafficking of a definition offense” vehicular while in tion for *7 the California criminalizes because gross negligence. without This toxicated simple transportation of drug a without performed by immigration removal was Navidad-Marcos, it. intent to distribute officer, pursuant the prior but to removal 907-08; at v. Al 367 F.3d United States Consequently, court order. district mazan-Becerra, (9th F.3d relying no legal upon committed error Cir.2007). say cannot Consequently, we of purposes the 2004 removal for 11379(a) under all convictions section 2L1.2(b) enhancement. the enhancement. qualify for II. Taylor Under the modified cate argues gorical approach, his when encounter a Gomez conviction under we Safety categorically that is overbroad as California Health & Code section statute 11379(a) definition, compared to we is not offense because the Guidelines predicate may into the facts “drug trafficking inquiry not for offense” make limited was administer, attempts give away, Safety 3. or or to im- California Health & Code section 11379(a) provides "every person port transport” this state or certain con- who into state, sells, imports punished by be im- transports, into this trolled substances "shall fur- nishes, administers, prisonment prison period gives away, in the for a of or or offers to state state, sell, furnish, two, three, import years.” or transport, into this four to underlying conviction determine whether a sentence of than thir greater imposed. whether the “conviction was based on all of teen was We months conclude qualifying predicate of a offense.”that it not. For of purposes elements was U.S.S.G. dad-Marcos, 2L1.2(b), Navi 367 F.3d at imposed” a “sentence does not inquiry categorical part Our any the modified include of a sentence that has approach “charging limited to been suspended. is docu United States More (9th ment, no-Cisneros, plea agreement, transcript written F.3d Cir. 2003) plea colloquy, any explicit factual (interpreting 2L1.2 cmt. l(A)(iv) (2001), to finding by judge having materially the trial which the the same 4A1.2(b)(2), if a text prior defendant assented to determine as current which in qualifies by corporated conviction for an enhancement.” into reference current (inter l(B)(vii)). Almazan-Becerra, 2L1.2, at 1088 F.3d see 2L1.2 cmt. It omitted). nal quotation marks While we does both a originally include sentence im may rely solely upon charging posed, not suspended, any but addi id., papers, may rely upon we them in tional sentence of incarceration ordered as conjunction with a plea probation defendant’s written a result of a violation. Id. It agreement or a transcript plea also includes term of incarceration im pled guilty posed show that the defendant probation. as a condition Hernandez-Valdovinos, offense, facts covered the Guidelines States v. 352 F.3d (9th Corona-Sanchez, Cir.2003) (also United States inter (9th Cir.2002) (en banc). Guidelines). F.3d preting prior version of the Moreover, ignore any good we behavior case, In this the district court relied non-judicial adjustments credits or other upon complaint the criminal and the defen- earned the defendant. United States v. plea dant’s guilty. According written Benitez-Perez, 367 F.3d plea agreement, written Gomez pled .2004). Cir guilty to Count Two of the written com- plaint, alleged documents, which that he “did unlawful- According to court Gomez’s sell, furnish, ly administer, give away, suspended or sentence given and he was sell, furnish, administer, offer to and give years probation, three which included away ... controlled substances.” In 127-day other term of probation a sentence words, custody Gomez distributed a controlled sub- of the county sheriff. At attempted stance to distribute one the time the probation conditions of were offering to do so. imposed, Both distribution and already Gomez had earned 127 attempted days distribution of a controlled sub- good credit time served and *8 “drug trafficking stance are awaiting offenses.” behavior trial. was He therefore 2L1.2(b)(l)(A) See U.S.S.G. May cmts. released on 1999. Sometime l(B)(iv) thereafter, 5. Consequently, & the district Gomez violated a condition of court did err in that finding probation. 30, 2000, not Gomez’s his On March he conviction under California Health appeared court; & Safe- in the California trial the 11379(a) ty Code section a “drug was traf- trial court revoked probation Gomez’s ficking offense.” condition, then reinstated with an added
a 365-day in custody term the of the coun- B. ty sheriff. question
The more pre difficult Gomez argues that district the court 11379(a) sented using the by adding jail section con erred 365-day the term to support viction to the 127-day jail enhancement the longer term because the HI. The included the shorter one. sentence ap- provided on trial court records state A. they do point, this but
peal are unclear on contention. See Gomez’s not contradict Alternatively, the court district that a (providing § 19.2 CaLPenal Code found that Gomez’s California conviction jail cannot impose trial court California vehicular while intoxicat custody in days than the greater time gross negligence, ed without CaLPenal county proba- as a term of sheriff the 192(c)(3) (1998), predi was also a Code Johnson, Cal. tion); People see but under U.S.S.G. cate (Ct.App. Cal.Rptr. App.3d 2L1.2(b)(l)(A)(n) conviction because the 1978) a California trial (providing that “crime statute was a of violence.” The jail days to 365 impose up can court to (prior under which Gomez was convicted violation, if the de- probation time after 1) revision, supra punished note its see consents, jail if the im- time fendant even man voluntary, involuntary, and vehicular original probation condition of posed as an according leg to the slaughter, California no days). The record contains was § 192. wording. islature’s CaLPenal Code consented to receiv- Gomez evidence found that was The district court Gomez jail time in excess of period a total ing (c)(3), which convicted under subsection consent, the 365 days. Without such the crime as defined prior days would have had include in Driving vehicle violation of Section days. 23153, [i.e., 23140, 23152, driving or intoxicated,] while Code Vehicle categorical the modified Under in the of an unlawful commission government bears the bur approach, act, without amounting felony, but prior that the convic to demonstrate den negligence; gross driving or vehicle here, qualifying tion was offense— 23140, 23152, violation Section months. the sentence exceeded thirteen and in the 23153 of the Vehicle Code Kelly, 422 F.3d See States v. might commission of a lawful act which Cir.2005) (“Under modified manner, death, in an unlawful produce has approach, government categorical gross negligence. without but un clearly the burden establish statute, all version of the on Id. current equivocally conviction based 191.5(b), to this refers qualifying predicate of the elements of CaLPenal (internal in as vehicular while quotation marks omit crime offense.” toxicated, ted)). Con gross negligence. dem without Because the record does not 192(c)(3) or under former section sentence exceeded viction onstrate Gomez’s of four months, clearly proof section 191.5 the district court current thirteen 1) under driving a vehicle while elements: applying erred enhancement 2L1.2(b)(l)(A)(I) in viola drugs influence or alcohol on the basis 2) code,4 vehicle while tion of California drug trafficking offense. Gomez’s *9 content, drugs), or or to alcohol or violate sec- addicted Specifically, 4. the defendant must (unlawful (unlawful person person 21 to a vehi- for under a to drive tion 23140 23153 for having percent vehicle 0.05 or drive a while or alcohol while under the influence of cle more, weight, her alcohol in his or of having alcohol drugs or an unlawful blood blood), (unlawful person a to drive 23152 for content, neglecting a lawful with concurrent while the influence of alcohol a vehicle under doing by law where duty act forbidden or drugs, alcohol having an unlawful blood or 786 purposes another or “crime of violence” for committing
also misdemeanor of lawful act that infraction or an otherwise question sixteen-level enhancement. This 3) death,5 might in a man negligent cause again us to delve once into 4) ner, negligent where the conduct causes murky waters of is meant a what person. Judicial the death of another See of “crime violence.” Jury In of Criminal Council California (2007) structions, re (interpreting No. 591 B. vised version found in of offense Cal.Penal Confusingly, vio phrase “crime of (2007)); § 6-142 191.5 California identify predicate lence” is used to of (2007). § Practice Criminal 142.02 Defense variety contexts,6 in a fenses wide of but requirement if negligence The is met are at ways there least four different to (tort) ordinary negli defendant commits offense determine whether an constitutes Bussel, gence. v. 118 Cal. People See 16; § “crime of violence.”7 See 18 U.S.C. Rptr.2d 159, (App. Dep’t Super. 163 Ct.2002) l(B)(iii); § 2L1.2 cmt. (phrase gross negli “without U.S.S.G. U.S.S.G. gence” only ordinary negli § may predicate means 4B1.2. What be offense Jury gence required); Cal. Criminal approach necessarily under one is not Inst., No. 591. predicate offense another approach. Generally, guideline the statute or provi argues
Gomez that because CaLPenal 192(c)(3) being applied specifies ap sion requires proof Code section of which only ordinary negligence, proach it cannot be a should be used of context bodily such injury conduct causes another alien who domestic vio- commits crime of lence); person) 1101(a)(43)(F) (crimes of the California Vehicle Code. 8 U.S.C. of "aggravated violence constitute for felonies” immigration lawful, purposes); 18 U.S.C. requirement negligent, of a but (authorizing persons of might extradition who have interpret- act that cause death could be violence); committed crimes of requiring higher degree ed U.S.C. culpability of 841(b)(7) (establishing mandatory maxi- ordinary negligence than approaching persons mum sentence for who commit negligence. Despite the standard for criminal by drugging crime violence un- peculiar language, someone this the California courts awares); (en- 2L1.2(b)(l)(A)(ii) U.S.S.G. requires proof only insist that this statute hancing advisory sentencing base lev- ordinary negligence. See Davis v. Dennis B. (In B.), 687, byel sixteen deported for aliens who were re Dennis 18 Cal.3d 135 Cal. committing Rptr.82, (1976); after a crime of violence sub- People 557 P.2d Bussel, sequently unlawfully); United States Cal.Rptr.2d entered (App. Dep’t (f) Ct.2002). Moreover, Super. (increasing U.S.S.G. 4A1.1 & cmt. 6 if California Pe- history 191.5(a) (2007) (vehicular criminal nal crimes of violence not Code section Guidelines); otherwise counted gross while intoxicated with 1.2(a) (classifying U.S.S.G. 4B negligence) the defendant require had read been criminal upon career negligence, having as a offender based com- it would have been redundant of violence); (vehicular 191.5(b) mitted crimes of see section also Leocal Ashcroft, 543 U.S. & while n. gross negligence, intoxicated without S.Ct. 191.5(b)). (collecting L.Ed.2d Cal.Penal Code uses See Coun- Judicial Instructions, phrase Comprehensive cil of as defined in the Jury California Criminal 1984). (2007) (defining No. gross negligence Crime Control Act of high acts that create death risk of bodily injury). serious example, compare statutory 7.For defini- 924(c)(3) §§ tions under 18 U.S.C. 16 & with 924(c)(3) 6. See 18 (establishing Sentencing U.S.C. stat- U.S.S.G. 4B1.2. Even within the Guidelines, utory mínimums for firearm involv- meanings offenses there are different ing violence); crimes phrase. Compare 8 U.S.C. 4B1.2 with 1227(a)(2)(E)(i) l(B)(iii). (authorizing deportation 2L1.2 cmt.
787
require
use of force or
of
When
volitional
risk
guideline provision.
or
that statute
force).
context,
statutory
interpreted
in a
volitional use of
We
phrase is used
the
adopted
Gonzales,
of
statutory
part
definition
as
in
the
Leocal
Fernandez-Ruiz
(9th Cir.2006) (en
Control Act of
banc),
Crime
Comprehensive
the
F.3d 1121
466
§ 16.
applies.
16(a)
18 U.S.C.
generally
from
further exclude
offenses that
reckless,
may be “committed
the
through
16 uses a double-barreled
Section
grossly negligent, use of force.”
or
See
ways,
defining
phrase
the
two
approach,
Fernandez-Ruiz,
(hold
§
of
test
in
context of
(paragraph
2L1.2 cmt.
risk
the
convenience).
924(e)(2)(B)(ii),
second
Supreme
The
the
Court re
added
2L1.2(b)
offenses,
is mate
phrase
cently
of the
definition
held
the
which
that
listed
element
from
rially
clause,
same as the
test
18 precede
the
the remainder
“illustrate
16(a)8
subject to the same
and is
U.S.C.
the kinds of crimes that fall within the
construction, which means that
it covers
scope”
statute’s
and that
the remainder
an
that re
only convictions for
offense
only
clause therefore includes
those of
force.
quires proof of the intentional use of
which
similar
fenses
are
to the illustrated
Narvaez-Gomez,
v.
489
See United States
similarity
crimes. Such a
where
exists
the
Cir.2007)
(9th
970,
(applying
F.3d
underlying
requires “purposeful,
offense
the
test
in
Femandez-Ruiz
to
element
violent,
aggressive
and
conduct.” See Be
—
2L1.2).
of
defini
phrase
The first
the
States,
-,
gay v. U.S.
128
listing
approach by
tion describes our third
1581,
1587,
S.Ct.
er C. 2L1.2(1)(D), only which warrants four- ap have We identified four level enhancement. a “crime of violence” proaches defining test, as the element the substantial
Although Guideline drafters risk/ test, injury use of force the serious risk of both risk-based from the six omitted tests test, enhancement, ap and the enumerated offenses they did not re teen-level Instead, Having proach. identified and defined move all risk-based offenses. apply appro we each must they specially approach, listed number of offenses thus, and, Only case. two priate approaches “crimes violence” to this deserv enhancement, approaches directly are rele- ing of the sixteen-level even four “aggravated felony” found in 8 U.S.C. This is true because substantial risk/use part 1101(A)(43), incorporates of force the definition of an test in turn which 3(A) "aggravated felony.” 16). See 2L1.2 cmt. U.S.C. (incorporating by definition reference 2L1.2(b), gross negligence of “manslaugh- vant in the context U.S.S.G. was one it, therefore, using “crime of violence” which defines a ter” and fell within the and an enumerated of the element test enumerated offenses. *13 government The con approach. fenses The district relied largely court justify cedes element test cannot that the upon the fact that the California offense here California the enhancement because manslaughter” called “vehicular to find 192(c)(3) (1998) Penal Code does section “manslaughter.” that it was But the Su not involve an “intentional use of force.”10 Court preme has directed us to look be same when we We reached the conclusion yond applied the label an analyzed greater a current version of the legislature state and consider whether the manslaugh of vehicular California offense “gen substance the offense matches the negli ter with gross while intoxicated erally accepted contemporary meaning of Gonzales, gence. See Lara-Cazares v. 408 States, Taylor term.” United [the] 495 (9th Cir.2005) 1217, (holding F.3d 1221 575, 596, 2143, U.S. 110 109 S.Ct. L.Ed.2d neither test nor offense met element (1990); 607 see also United States v. Go substantial of force test in context risk/use mez-Mendez, 599, (9th Cir.) F.3d of the of Immi review of decision Board (asking whether state crime fell within “or gration Appeals finding petitioner remova dinary, contemporary, common mean ble having for committed a “crime vio ing” “statutory rape,” enumerated as a lence”). 2L1.2(b)(l)(ii) “crime of violence” under sentencing hearing, During (internal omitted)), quotation marks cert. gave the district two for court reasons — denied, U.S.-, 545, 128 S.Ct. First, it applying the enhancement. recit (2007). Thus, L.Ed.2d enumerated opinion ed a from our passage in United offense must have some “uniform defini O’Neal, States v. 937 F.2d independent tion employed by of the labels (9th Cir.1990), where we held that con the various States’ criminal Tay codes.”
viction in California under an even older
lor,
vided into
§§
homicide.
&
gent
210.3 210.4. Criminal
(intended homicide in a heat of
slaughter
*14
is
negligence
higher
standard than ordi-
provocation) and
passion upon adequate
nary negligence;
requires
it
a “substantial
(unintended
involuntary manslaughter
perceive
risk”
that
the
to
circumstance).”
failure
and/or
under certain
homicide
gross
a risk
“a
LaFave,
such
constitutes
deviation
According
§
Id.
15.4.
involuntary manslaugh
from the
of care that a reason-
general trend for
standard
rea
of
require
ter to
the mens
element
person
able
would observe in the actor’s
though
2.02(d).
recklessness. Even
some states
§Id.
the Mod-
situation.”
Under
involuntary manslaughter
that
have held
approach,
el Penal Code’s
a state would
by proof
ordinary
can be established
of
only
that
punish
conduct
amounts to
weight
authority
“the
negligence,
great
of
ordinary
such
conduct
negligence,
as the
something
Id.
requires
more.”11
outlawed
California Penal
section
15.4(a).
§
192(c)(3)(1998).
Dominguez-Ochoa,
In
States v.
California,
Like
most states have sever
Cir.2004), the
F.3d
644-46
offenses,
al homicide
an involun
including
agreed with
and held
Fifth Circuit
LaFave
tary manslaughter statute. The Fifth Cir
manslaughter
modern
of
re-
that the
view
study
twenty
that
cuit’s
revealed
at least
quired
of
That case
proof
recklessness.
criminal
reck
proof
state
codes
of
presented
question pre-
the reverse of
person
the crime
lessness
convict
for
being re-
sented here. The Texas offense
involuntary manslaughter. Domin
of
negligent
there was called
homi-
viewed
Thus,
at
guez-Ochoa, 386 F.3d
cide,
government
it was
argued
but
appears
modern view
to be that reckless
thus a
equivalent
and was
man
contemporary
ness is an element of
“crime
violence”
15.4(a).
LaFave, supra, §
slaughter.
2L1.2(b)(l)(A)(ii).
ele-
Id.
mens rea
However, at
have a
least fifteen states
negli-
that
ment to
statute
criminal
con
criminalizing
statute
than
gence,
degree
culpability higher
duct
that
falls short
recklessness:
ordinary negligence, but lower than reck-
when
permit punishment
of them
twelve
The Fifth
lessness.
Circuit reversed
akin
a mens rea that is
the defendant has
application
court’s
of the sixteen-
district
enhancement,
only
or
but
sentencing
holding
gross negligence,12
to criminal
level
15.4(a) (2d ed.2007).
negligence or
ordinary negligence,
Gross
11. Unlike
recklessness
(1)
something
negligence requires
"a
requires conduct
involves
criminal
more
both
one,
bodily
ordinary
high degree
negligence,
death or
and
risk of
serious
than
such as
both,
injury,
risk
elements.
in addition to
unreasonable
cases
the additional
some
negligence”
gross
required
ordinary
or
Id.
5.4.
ordinary
from
of care
deviation
standard
(offense
be
12. Me.Rev.Stat. Ann. tit.
that the defendant
"aware of
requires
"manslaughter,”
but
reckless-
that his
creates
risk.”
called
fact
conduct
this
LaFave,
negligence);
Ann.
Wayne
Law
ness or criminal
Md.Code
R.
Substantive Criminal
proof
three
on
states have
permit punishment
states
created homicide statutes that
only
require a
of less than
ordinary negligence.13 When we look
mens rea
reckless
ness,
use
beyond statutes that
the term “man
but call
offenses “negligent
such
slaughter,”
thirty-four
something
that another
homicide” or
similar.14
we see
Even
(offense
requires
negligence
Crim. Law
called "man
or criminal
2-209
recklessness
vessel,”
Edwards,
slaughter by
requires
interpreted
parte
or
but
vehicle
Ex
gross
negligence);
(Ala.2001));
Miss.Code Ann. 97-3-27
So.2d
Alaska Stat.
(offense
"manslaughter”
requires
(offense
called
but
"criminally neg
called
11.41.130
culpable negligence which is more than ordi
ligent
requires
homicide”
criminal
nary
interpreted by
negligence as
Johnson v.
negligence);
Ariz.Rev.Stat. Ann.
State,
(1921));
124 Miss.
speaks for itself. Section 2L1.2 cmt.
l(B)(iii) of the Guidelines unequivocally
lists as a “[c]rime of vio-
lence.” “If the Guidelines writers had in- limited,
tended to be
they easily could have inserted the word
‘voluntary’ in front word ‘man- *19 slaughter’ parenthetical, or inserted a ‘in- ”
voluntary manslaughter not included.’ Dominguez-Ochoa, States (5th Cir.2004)
F.3d (Pickering,
J., dissenting). NGAETH, Petitioner, BUNTY government’s concession that Go-
mez-Leon’s conviction does not rise to the