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United States v. Reyes-Contreras

United States Court of Appeals, Fifth Circuit

February 6, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
FREDIS ALBERTO REYES-CONTRERAS, Also Known as Alberto Contreras-Romero, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Texas

          Before JONES, SMITH, and PRADO, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Fredis 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.

         I.

         Reyes-Contreras 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.

         A 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.

         Given the above information, the presentence report ("PSR") assigned Reyes-Contreras a base offense level of 8 under U.S.S.G. § 2L1.2(a)[1] 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.

         The PSR 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.

         At 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.

         Reyes-Contreras 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 banc).

         II.

         A.

         The 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.

         If a 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).

         B.

         The Missouri voluntary manslaughter statute, Mo. Ann. Stat. § 565.023, reads as follows[2]:

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 self-murder.
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.

         Second degree murder under Mo. Ann. Stat. § 565.023.1(1) has the following elements[3]:

1. A person commits the crime of murder in the second degree if he:
(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 . . . .

         The parties do not dispute that manslaughter as defined in subsection (1) is a COV meeting the elements of generic manslaughter.[4] 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.

         C.

         To 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.

         We 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) ...


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