Lead Opinion
Opinion by Judge GIBSON; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.
Javier Gomez-Leon was found guilty by the district court of attempted entry into the United States after deportation, 8 U.S.C. § 1326, following a non-jury trial. The district court sentenced Gomez to 84 months’ imprisonment based on an advisory Guidelines range of 84-105 months. The district court arrived at that advisory range by beginning with a base offense level of eight, applying a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A) (prescribing an increase in sentencing range if the defendant was previously convicted a “crime of violence” or a “drug trafficking offense for which the sentence imposed exceeded 13 months”), and granting a two-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1. Gomez’s total offense level was, therefore, twenty-two. On appeal, Gomez argues that the district court erred by applying the sixteen-level enhancement under § 2L1.2(b)(l)(A)(i) & (ii). We reverse and remand for re-sentencing.
Gomez is a Mexican national with a long history of deportation and unlawful behavior. He entered the country illegally as early as 1994. In 1998, he came to the attention of immigration authorities when he was convicted for driving a vehicle under the influence of alcohol and without a license. That same year, he was removed to Mexico following a removal hearing before an immigration judge. Gomez then reentered the country illegally. In 1999, he was convicted of violating California Health & Safety Code section 11379(a), an offense involving controlled substances. He was removed to Mexico once again in 1999. Gomez again illegally reentered the country. He was convicted in 2000 of receiving stolen goods and of driving under the influence. He was removed to Mexico a third time in 2000. On November 4, 2003, he was convicted in California state court of vehicular manslaughter while in
Gomez’s various appellate arguments stem from a sixteen-level enhancement that the district court applied to his advisory sentencing range under U.S.S.G. § 2L1.2(b)(l)(A), which requires such an enhancement
[i]f the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense....
For the enhancement to apply, the government must show that the defendant was lawfully removed from the United States after being convicted of a predicate offense. Id. The district court found that both Gomez’s drug conviction under California Health & Safety Code section 11379(a) and his conviction for vehicular manslaughter while intoxicated, without gross negligence, CaLPenal Code § 192(c)(3), were predicate offenses, justifying the enhancement.
Gomez challenges each component of these findings. He urges us to reverse his sentence because the district court erred by finding that (1) his conviction under California Health & Safety Code section 11379 was a “drug trafficking offense for which the sentence imposed exceeded 13 months”; (2) his California conviction for vehicular manslaughter without gross negligence, CaLPenal Code § 192(c)(3), was a felony “crime of violence”; and (3) he was lawfully deported or unlawfully remained in the country following either of those convictions.
“We review de novo the district court’s interpretation of the United States Sentencing Guidelines ..., review for clear error the district court’s factual determinations, and review for abuse of discretion the district court’s applications of the Guidelines to the facts.” United States v. Holt,
I.
Gomez argues that even if we hold that one of his convictions was a predicate offense under U.S.S.G. § 2L1.2(b), he was never “lawfully deported” after either of those convictions because his 1999, 2000, and 2004 removals — those that occurred after one of the predicate convictions— were authorized by an immigration officer, not an immigration judge. During the pendency of Gomez’s appeal, this argument has been foreclosed. In Morales-Izquierdo v. Gonzales,
II.
Gomez argues that his conviction under California Health & Safety Code section 11379(a) is not a predicate offense because it was not for a “drug trafficking offense” and the sentence imposed for the conviction did not exceed thirteen months.
A.
In order to determine if Gomez’s California conviction was for a “drug trafficking offense,” we must apply the Taylor categorical approach, Taylor v. United States,
Under the Taylor modified categorical approach, when we encounter a statute that is categorically overbroad as compared to the Guidelines definition, we may make a limited inquiry into the facts
In this case, the district court relied upon the criminal complaint and the defendant’s written plea of guilty. According to the written plea agreement, Gomez pled guilty to Count Two of the written complaint, which alleged that he “did unlawfully sell, furnish, administer, give away, or offer to sell, furnish, administer, and give away ... controlled substances.” In other words, Gomez distributed a controlled substance or attempted to distribute one by offering to do so. Both distribution and attempted distribution of a controlled substance are “drug trafficking offenses.” See U.S.S.G. § 2L1.2(b)(l)(A) cmts. l(B)(iv) & 5. Consequently, the district court did not err in finding that Gomez’s conviction under California Health & Safety Code section 11379(a) was a “drug trafficking offense.”
B.
The more difficult question presented by using the section 11379(a) conviction to support the enhancement is whether a sentence of greater than thirteen months was imposed. We conclude that it was not. For purposes of U.S.S.G. § 2L1.2(b), a “sentence imposed” does not include any part of a sentence that has been suspended. United States v. Moreno-Cisneros,
According to court documents, Gomez’s sentence was suspended and he was given three years of probation, which included as a term of probation a 127-day sentence in the custody of the county sheriff. At the time the conditions of probation were imposed, Gomez had already earned 127 days of credit for time served and good behavior awaiting trial. He was therefore released on May 4, 1999. Sometime thereafter, Gomez violated a condition of his probation. On March 30, 2000, he appeared in the California trial court; the trial court revoked Gomez’s probation and then reinstated it with an added condition, a 365-day term in the custody of the county sheriff.
Gomez argues that the district court erred by adding the 365-day jail term to the 127-day jail term because the longer
Under the modified categorical approach, the government bears the burden to demonstrate that the prior conviction was a qualifying offense — here, that the sentence exceeded thirteen months. See United States v. Kelly,
HI.
A.
Alternatively, the district court found that Gomez’s California conviction for vehicular manslaughter while intoxicated without gross negligence, CaLPenal Code § 192(c)(3) (1998), was also a predicate offense under U.S.S.G. § 2L1.2(b)(l)(A)(n) because the conviction was a “crime of violence.” The statute under which Gomez was convicted (prior to its revision, see supra note 1) punished voluntary, involuntary, and vehicular manslaughter, according to the California legislature’s wording. CaLPenal Code § 192. The district court found that Gomez was convicted under subsection (c)(3), which defined the crime as
Driving a vehicle in violation of Section 23140, 23152, or 23153, [i.e., driving while intoxicated,] of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
Id. The current version of the statute, CaLPenal Code § 191.5(b), refers to this crime as vehicular manslaughter while intoxicated, without gross negligence. Conviction under former section 192(c)(3) or current section 191.5 requires proof of four elements: 1) driving a vehicle while under the influence of drugs or alcohol in violation of the California vehicle code,
Gomez argues that because CaLPenal Code section 192(c)(3) requires proof of only ordinary negligence, it cannot be a “crime of violence” for purposes of the sixteen-level enhancement. This question requires us to delve once again into the murky waters of what is meant by a “crime of violence.”
B.
Confusingly, the phrase “crime of violence” is used to identify predicate offenses in a wide variety of contexts,
Section 16 uses a double-barreled approach, defining the phrase in two ways, disjunctively. Thus, a “crime of violence” is
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16. We will refer to the § 16(a) approach as the element test because it focuses on whether use of force is an element of the offense. Section 16(b) focuses on the risk that the offense will involve the use of force. See also Leocal v. Ashcroft,
The applicable context in this case, section 2L 1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines, contains its own approach to defining a crime of violence that is only partly similar to the 18 U.S.C. § 16 definition. Under U.S.S.G. § 2L1.2(b)(1), a crime of violence
means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or
any 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.
is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a)(2) (2000). This approach appears to have originated in the Armed Career Criminal Act’s definition of the term “violent felony.” 18 U.S.C. § 924(e)(2)(B)(ii). In applying the serious risk of injury test in the context of § 924(e)(2)(B)(ii), the Supreme Court recently held that the listed offenses, which precede the remainder clause, “illustrate the kinds of crimes that fall within the statute’s scope” and that the remainder clause therefore includes only those offenses which are similar to the illustrated crimes. Such a similarity exists where the underlying offense requires “purposeful, violent, and aggressive conduct.” See Begay v. United States, — U.S. -,
The serious risk of injury test resembles the substantial risk/use of force test because it is based on the degree of risk that the commission of the underlying offense will cause a particular result. We previously followed other circuits in holding that the serious risk of injury test was more expansive than the substantial risk/ use of force test because it did not require proof of mens rea. United States v. Rendon-Duarte,
In 2001 the commentary to U.S.S.G. § 2L1.2 was amended to create the current definition of a “crime of violence,” effectively severing the § 2L1.2 definition from the § 4B1.2 definition and removing altogether the serious risk of injury test from § 2L1.2. See U.S.S.GApp. C Vol. II, amend. 632 (2001). This amendment was enacted in order to provide a more graduated sentencing structure under § 2L1.2. Id.; Roger W. Haines, Frank O. Bowman III & Jennifer C. Woll, Federal Sentencing Guidelines Handbook § 2L1.2, at 830-31 (2007 ed.). Thus, in order for a defendant to receive a sixteen-level enhancement for a “crime of violence,” the crime either had to be an enumerated offense or had to satisfy the element test, the latter of which includes only crimes which have as an element the intentional use of force. Neither risk-based test is a basis for a sixteen-level enhancement. Rather, offenses satisfying the substantial risk/use of force test warrant only an eight-level enhancement under the aggravated felony provision of § 2L1.2(b)(l)(C).
Although the Guideline drafters omitted both risk-based tests from the sixteen-level enhancement, they did not remove all risk-based offenses. Instead, they specially listed a number of offenses as “crimes of violence” and, thus, deserving of the sixteen-level enhancement, even though some of those crimes do not contain as an element of their offense the intentional use of force. See United States v. Pereira-Salmeron,
C.
We have identified the four approaches for defining a “crime of violence” as the element test, the substantial risk/ use of force test, the serious risk of injury test, and the enumerated offenses approach. Having identified and defined each approach, we must apply the appropriate approaches to this case. Only two of the four approaches are directly rele
During the sentencing hearing, the district court gave two reasons for applying the enhancement. First, it recited a passage from our opinion in United States v. O’Neal,
The district court relied largely upon the fact that the California offense is called “vehicular manslaughter” to find that it was “manslaughter.” But 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.” Taylor v. United States,
1.
Contemporary Meaning of Manslaughter
Historically, the common law did not distinguish between murder and man
In United States v. Dominguez-Ochoa,
This view is consistent with the Model Penal Code, which also requires recklessness for the crime of manslaughter and criminal negligence for the crime of negligent homicide. §§ 210.3 & 210.4. Criminal negligence is a higher standard than ordinary negligence; it requires a “substantial risk” and/or that the failure to perceive such a risk constitutes “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Id. § 2.02(d). Under the Model Penal Code’s approach, a state would not punish conduct that amounts to only ordinary negligence, such as the conduct outlawed by California Penal Code section 192(c)(3) (1998).
Like California, most states have several homicide offenses, including an involuntary manslaughter statute. The Fifth Circuit’s study revealed that at least twenty state criminal codes require proof of recklessness to convict a person for the crime of involuntary manslaughter. Dominguez-Ochoa,
Of course, Gomez was not convicted of ordinary involuntary or vehicular manslaughter, as California defines it; he was convicted of vehicular manslaughter while intoxicated, a particular type of manslaughter. Some states have created special statutes to punish drunk driving homicides as “a number of states have enacted statutes creating the new crime of homicide by automobile.” See 2 LaFave, supra, § 15.4(e) (stating that such a statute is “related to the crime of manslaughter but is not manslaughter proper”). Typically, such statutes require proof of intoxication while driving a vehicle and are punished less severely than manslaughter. 2 LaFave, supra, § 15.4(e). Commensurate with lesser punishment is a lesser mens rea requirement, where the state often permits conviction under the statute when the defendant has a mens rea that is less than recklessness. Id.
We identify, however, only five states that have statutes similar to California’s, requiring proof of only ordinary negligence
2.
Guidelines Treatment of Manslaughter
In its brief, the government argues that even if the contemporary meaning of manslaughter includes a mens rea that is greater than ordinary negligence, the drafters of the Sentencing Guidelines clearly intended for the term manslaughter to include Gomez’s conviction. See, e.g., Dominguez-Ochoa,
If the drafters of § 2L1.2 cmt. l(b)(iii) intended all homicides to be treated as “crimes of violence,” then they would have listed “homicide” as the enumerated offense. As it stands, they listed only “murder” and “manslaughter.” Id. This limitation is consistent with the goal of the 2001 amendments to provide more graduated sentencing enhancements under § 2L1.2, where the drafters removed from the sixteen-level enhancement definition of a “crime of violence” both risk-based tests that capture less culpable defendants. It is unsurprising, then, that we should conclude that homicide committed with a mens rea of only ordinary negligence is not included among the enumerated offenses listed in § 2L1.2(b).
D.
Since Gomez’s conviction under California Penal Code section 192(c)(3) (1998) for “vehicular manslaughter while intoxicated without gross negligence” is an offense that requires only proof of ordinary negligence, it cannot fall within the contemporary meaning of manslaughter as enumerated in U.S.S.G. § 2L1.2 cmt. l(B)(iii). Therefore, the district court erred in finding that it was a “crime of violence” for the purposes of applying a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii).
IV.
Neither Gomez’s conviction for a “drug trafficking offense” nor his conviction under California Penal Code section 192(c)(3) justifies the application of a sixteen-level enhancement under U.S.S.G. § 2L1.2(b). Consequently, Gomez’s sentence is vacated and the case is remanded to the district
REVERSED and REMANDED.
Notes
. The California Code was revised on January 1, 2007, after Gomez was convicted. The current California Penal Code section 192(c)(3) is materially different than the version which applied in 2003. We cite to the version of the code that was in effect in 2003, when Gomez was convicted. The current version of California Penal Code section 191.5(b) (2007) is, in all respects material to this case, substantially the same as the version of section 192(c)(3) in effect in 2003. See CaLPenal Code § 192(c)(3) (1998).
. Gomez also argues that his sentence violates the Sixth Amendment because it requires the district court to find, based upon a preponderance of the evidence, that he committed a prior felony. The Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt. United States v. Booker,
. California Health & Safety Code section 11379(a) provides that "every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport” certain controlled substances "shall be punished by imprisonment in the state prison for a period of two, three, or four years.”
. Specifically, the defendant must violate section 23140 (unlawful for person under 21 to drive a vehicle while having 0.05 percent or more, by weight, of alcohol in his or her blood), 23152 (unlawful for a person to drive a vehicle while under the influence of alcohol or drugs, having an unlawful blood alcohol content, or addicted to alcohol or drugs), or 23153 (unlawful for a person to drive a vehicle while under the influence of alcohol or drugs or having an unlawful blood alcohol content, concurrent with neglecting a lawful duty or doing an act forbidden by law where
. The requirement of a lawful, but negligent, act that might cause death could be interpreted as requiring a higher degree of culpability than ordinary negligence and approaching the standard for criminal negligence. Despite this peculiar language, the California courts insist that this statute requires proof of only ordinary negligence. See Davis v. Dennis B. (In re Dennis B.),
. See 18 U.S.C. § 924(c)(3) (establishing statutory mínimums for firearm offenses involving crimes of violence); 8 U.S.C. § 1227(a)(2)(E)(i) (authorizing deportation of alien who commits domestic crime of violence); 8 U.S.C. § 1101(a)(43)(F) (crimes of violence constitute "aggravated felonies” for immigration purposes); 18 U.S.C. § 3181 (authorizing extradition of persons who have committed crimes of violence); 21 U.S.C. § 841(b)(7) (establishing mandatory maximum sentence for persons who commit a crime of violence by drugging someone unawares); U.S.S.G. § 2L1.2(b)(l)(A)(ii) (enhancing advisory sentencing base offense level by sixteen for aliens who were deported after committing a crime of violence and subsequently entered United States unlawfully); U.S.S.G. § 4A1.1 (f) & cmt. 6 (increasing criminal history for crimes of violence not otherwise counted by the Guidelines); U.S.S.G. § 4B 1.2(a) (classifying the defendant as a career offender based upon having committed crimes of violence); see also Leocal v. Ashcroft,
.For example, compare the statutory definitions under 18 U.S.C. §§ 16 & 924(c)(3) with U.S.S.G. § 4B1.2. Even within the Sentencing Guidelines, there are different meanings of the phrase. Compare U.S.S.G. § 4B1.2 with § 2L1.2 cmt. l(B)(iii).
. However, it limits predicate offenses to those that contain as an element the use of force against another "person” and does not apply to offenses which require use of force against only “property.” Compare 18 U.S.C. § 16(a) with U.S.S.G. § 2L1.2 cmt. l(B)(iii).
. This is true because the substantial risk/use of force test is part of the definition of an "aggravated felony.” See § 2L1.2 cmt. 3(A) (incorporating by reference definition of an “aggravated felony” found in 8 U.S.C. § 1101(A)(43), which in turn incorporates 18 U.S.C. § 16).
. The government concedes that a conviction for vehicular manslaughter while intoxicated without gross negligence under California Penal Code section 192(c)(3) does not constitute a "crime of violence" within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii). But "[w]e are not bound by a party’s concession as to the meaning of the law, even if that party is the government and even in the context of a criminal case.” United States v. Ogles,
. Unlike ordinary negligence, recklessness requires conduct that involves both (1) "a high degree of risk of death or serious bodily injury, in addition to the unreasonable risk required for ordinary negligence” or a gross deviation from the ordinary standard of care and (2) that the defendant be "aware of the fact that his conduct creates this risk.” 2 Wayne R. LaFave, Substantive Criminal Law § 15.4(a) (2d ed.2007). Gross negligence or criminal negligence requires something more than ordinary negligence, such as one, and in some cases both, of the additional elements. Id. § 5.4.
. Me.Rev.Stat. Ann. tit. 17, § 203 (offense called "manslaughter,” but requires recklessness or criminal negligence); Md.Code Ann.
. Idaho Code Ann. § 18-4006 (offense called "manslaughter” and requires only ordinary negligence as interpreted by Haxforth v. State,
. Ala.Code § 32-5A-192 (1975) (offense called "homicide by vehicle or vessel” and requires recklessness or criminal negligence as interpreted by Ex parte Edwards,
.D.C.Code § 50-2203.01 (offense called "negligent homicide,” and requires only ordinary negligence as interpreted by Butts v. United States,
. Supra notes 13 (manslaughter statutes that require mens rea of ordinary negligence) and 15 (negligent homicide statutes that require same).
. Supra note 13.
. Va.Code Ann. § 18.2-36.1 (offense called "involuntary manslaughter” and only requires ordinary negligence if driver is under the influence of drugs or alcohol, as interpreted by Pollard v. Commonwealth,
. N.Y. Penal Law § 125.12 (offense called “vehicular manslaughter in the second degree” and requires no element of mens rea if driver was intoxicated and intoxication resulted in killing of another person according to the "Practice Commentaiy” found at N.Y. Penal Law ch. 40, pt. Three, 2005 amends., under the subheading “vehicular manslaughter”); Conn. Gen.Stat. § 53a-56b (offense
. Minn.Stat. § 609.21 (offense called "criminal vehicular homicide" and requires only ordinary negligence when driver of vehicle is under the influence); Md.Code Ann.Crim. Law § 2-503 (offense called "homicide by motor vehicle or vessel while under the influence of alcohol” and requires ordinary negligence).
. Haw.Rev.Stat. § 707-702.5 (offense called "negligent homicide in the first degree” and requires only proof of driving while intoxicated); Neb.Rev.Stat. Ann. § 28-306 (offense called "motor vehicle homicide” and strict liability for driving while under the influence of alcohol as interpreted by State v. Ring,
. Utah Code Ann. § 76-5-207(3)(a) (offense called "automobile homicide, a second degree felony” and requires criminal negligence and proof of intoxication); Mont.Code Ann. § 45-5-106 (offense of "vehicular homicide while under influence” and requires negligence that is a gross deviation from the standard of care as negligently is defined under Mont.Code Ann. § 45-2-101); Ind.Code § 35-42-1-5 (offense of "involuntary manslaughter” requires more than negligence even when defendant intoxicated as interpreted by Demmond v. State,
. Supra notes 18-21 (collecting statutes that require no proof of mens rea or proof of ordinary negligence to punish drunk driving homicides).
. Supra note 18-19 (only five states besides California).
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the court’s holding in Part I that Gomez-Leon was “lawfully deported” under U.S.S.G. § 2L1.2(b), and in its conclusion in Part II that his state sentence for violating Cal. Health & Safety Code § 11379 did not exceed thirteen months, thus excluding him from a sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A).
However, notwithstanding the government’s concession to the contrary, I respectfully disagree with the court’s articulation in Part III that Gomez-Leon’s conviction for vehicular manslaughter without gross negligence under Cal.Penal Code § 192(c)(3) (1998) does not constitute a felony “crime of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). As engaging as I find the court’s historical analysis of the requisite mens rea for a conviction of manslaughter and the court’s exegesis of state law, the plain language of the Sentencing Guidelines speaks for itself. Section 2L1.2 cmt. l(B)(iii) of the Guidelines unequivocally lists manslaughter as a “[c]rime of violence.” “If the Guidelines writers had intended for manslaughter to be limited, they could easily have inserted the word ‘voluntary’ in front of the word ‘manslaughter’ or inserted a parenthetical, ‘involuntary manslaughter not included.’ ” United States v. Dominguez-Ochoa,
The government’s concession that Gomez-Leon’s conviction does not rise to the level of a “crime of violence” rests on its assertion that this case is controlled by Fernandez-Ruiz v. Gonzales,
Because the Guidelines writers did not make a distinction between types of manslaughter in U.S.S.G. § 2L1.2 cmt l(B)(iii), even though they explicitly did so elsewhere in the Guidelines, see, e.g., U.S.S.G. § 2A1.4 (delineating between negligent and reckless involuntary manslaughter), I cannot join the court’s decision to reverse the sentence imposed by the district court in this case.