from the United States District Court for the Southern
District of Texas
JONES, SMITH, and PRADO, Circuit Judges.
E. SMITH, Circuit Judge:
Reyes-Contreras pleaded guilty of illegal reentry under 8
U.S.C. § 1326(a) and (b). Because he had been convicted
of manslaughter in Missouri, the court applied the
sixteen-level crime-of-violence ("COV") enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reyes-Contreras
appeals the enhancement, claiming that Missouri's
manslaughter statute is non-generic under Mathis.
Though we find that the statute is divisible and could
warrant an enhancement under the modified categorical
approach, the documents of conviction do not indicate the
subsection of conviction, so as required by our caselaw we
vacate and remand for resentencing.
was apprehended after illegally crossing from Mexico. Because
he had been deported, he was charged with illegal reentry
under 8 U.S.C. § 1326(a) and (b). He admitted to being a
citizen of Honduras and entered a guilty plea with no plea
agreement. He claims he entered illegally because a gang in
Honduras threatened his life if he did not pay them money.
criminal record check revealed two Missouri convictions from
2006: one for voluntary manslaughter in the first degree and
a second for armed criminal action. An immigration check
showed that Reyes-Contreras had been deported in 2012.
the above information, the presentence report
("PSR") assigned Reyes-Contreras a base offense
level of 8 under U.S.S.G. § 2L1.2(a) and applied a
16-level COV enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(ii). Two levels were subtracted for acceptance
of responsibility, and a third level for timely acceptance
was subtracted at the sentencing hearing, leaving
Reyes-Contreras at a level of 21.
assigned four criminal history points, three for the Missouri
convictions and one for a 2001 conviction that was later
subtracted because it was more than ten years old. That
yielded a Category II criminal history. The Guidelines range
for the offense was 41-51 months, and the district court
sentenced Reyes-Contreras to 41 months.
issue is the sixteen-level enhancement for a COV given the
Missouri conviction for voluntary manslaughter.
Reyes-Contreras was seen striking the victim―his
brother-in-law―on the head with a baseball bat, causing
death. Reyes-Contreras contends he committed the offense in
defense of his younger brother because his brother-in-law had
attacked his brother with a knife.
was charged with second degree murder, a Class A felony. The
indictment includes the fact that Reyes-Contreras caused the
death of another by striking him with a baseball bat.
Reyes-Contreras pleaded guilty of voluntary manslaughter, a
Class B felony. The plea includes neither an elaboration of
the facts nor the subsection of conviction. Because the
Missouri manslaughter statute criminalizes generic
manslaughter in subsection (1) as well as knowingly assisting
another in self-murder in subsection (2), Reyes-Contreras
asserts that the statute is indivisible and overbroad under
Mathis. Reyes-Contreras preserved his objection to
the enhancement, so our review is de novo. United States
v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en
Guidelines establish that a COV enhancement applies to an
enumerated list of crimes, including manslaughter, and to
offenses that "ha[ve] as an element the use, attempted
use, or threatened use of physical force against the person
of another." U.S.S.G. § 2L1.2 cmt. 1(B)(iii). To
qualify as an enumerated crime, the statute of conviction
must match the generic offense. Mathis v. United
States, 136 S.Ct. 2243, 2247 (2016); Taylor v.
United States, 495 U.S. 575, 598 (1990). Under this
categorical approach, the court must ignore the facts of the
case and ask whether the elements of the crime of conviction
and the elements of the generic crime are sufficiently
similar. Mathis, 136 S.Ct. at 2248. When a defendant
pleads guilty, the elements are those things he necessarily
admits in his plea. Id.
statute is divisible, we employ the modified categorical
approach and look to certain documents to determine which
subsection of the statute was the basis for conviction.
Shepard v. United States, 544 U.S. 13, 25 (2005). We
then compare the elements of that subsection with the
elements of the generic crime. But if the statute lists means
of fulfilling a single offense, it is indivisible and must be
taken as a whole instead of using the facts of the offense to
narrow the statute. Descamps v. United States, 133
S.Ct. 2276, 2290 (2013).
Missouri voluntary manslaughter statute, Mo. Ann. Stat.
§ 565.023, reads as follows:
1.A person commits the crime of voluntary manslaughter if he:
(1)Causes the death of another person under circumstances
that would constitute murder in the second degree under
subdivision (1) of subsection 1 of section 565.021, except
that he caused the death under the influence of sudden
passion arising from adequate cause; or
(2) Knowingly assists another in the commission of
2.The defendant shall have the burden of injecting the issue
of influence of sudden passion arising from adequate cause
under subdivision (1) of subsection 1 of this section.
3.Voluntary manslaughter is a class B felony.
degree murder under Mo. Ann. Stat. § 565.023.1(1) has
the following elements:
1. A person commits the crime of murder in the second degree
(1) Knowingly causes the death of another person or, with the
purpose of causing serious physical injury to another person,
causes the death of another person . . . .
parties do not dispute that manslaughter as defined in
subsection (1) is a COV meeting the elements of generic
manslaughter. Reyes-Contreras contends that the statute
is indivisible and cannot be generic because of the
criminalization of assisting another in self-murder in
subsection (2). He further asserts that subsection (2) lacks
as an element the use of force such that it does not qualify
under the alternative definition of a COV.
determine whether an alternatively phrased statute lays out
elements or means, we follow Mathis and look first
to state-court decisions, second to the statute itself, and
finally to a limited permissible list of documents such as
the indictment, jury instructions, and plea agreement and
colloquy. If none of those sources definitively answers the
question of divisibility, then Taylor's demand
for certainty has not been met, and we must consider the
statute as a whole. Mathis, 136 S.Ct. at 2256-57.
conclude that Missouri's manslaughter statute is
divisible. There is no state highest-court decision
definitively saying that, but the statutory framework and
state caselaw as a whole convincingly demonstrate that
subsection (1) ...