United States v. Lazaro Lobaton-Andrade , 861 F.3d 538 ( 2017 )


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  •      Case: 15-41744      Document: 00513869534         Page: 1    Date Filed: 02/09/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-41744                               FILED
    February 9, 2017
    UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    LAZARO LOBATON–ANDRADE,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:15-CR-670-1
    Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
    PER CURIAM:*
    Defendant–Appellant Lazaro Lobaton–Andrade pleaded guilty to illegal
    reentry after deportation and was sentenced to 46 months of imprisonment.
    Lobaton–Andrade appeals his sentence, asserting that a 2007 Arkansas
    manslaughter conviction does not qualify as “manslaughter,” an enumerated
    “crime of violence” offense under United States Sentencing Guidelines § 2L1.2.
    Thus, Lobaton–Andrade contends, the district court erred in applying a 16-
    level crime of violence sentencing enhancement based on that conviction. We
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    agree, and we VACATE his sentence and REMAND to the district court for
    resentencing.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    In 2007, Defendant–Appellant Lazaro Lobaton–Andrade pleaded guilty,
    pursuant to a plea agreement, to manslaughter in Arkansas. At the time of
    Lobaton–Andrade’s commission of that offense, Arkansas’s manslaughter
    statute, Arkansas Code § 5-10-104, provided, in pertinent part, that:
    (a) A person commits manslaughter if:
    (1) He causes the death of another person under circumstances
    that would be murder, except that he causes the death under
    the influence of extreme emotional disturbance for which
    there is reasonable excuse. . . .
    (2) He purposely causes or aids another person to commit
    suicide;
    (3) He recklessly causes the death of another person; or
    (4) Acting alone or with one (1) or more persons he commits or
    attempts to commit a felony, and in the course of and in
    furtherance of the felony or in immediate flight therefrom:
    (A) He or an accomplice negligently causes the death
    of any person. . . .
    The information charged Lobaton–Andrade with violating § 5-10-104(a)(1)
    (i.e., charged that he caused the death of another under extreme emotional
    disturbance), but also alleged that Lobaton–Andrade “did recklessly cause the
    death of [another].” 1         After serving his sentence in Arkansas, Lobaton–
    1   Specifically, the information alleged as follows:
    Count # 1, Offense: 5-10-104(a)(1) ~ MANSLAUGHTER. Class C Felony
    The Defendant on or about, July 18, 2004 in Benton County, Arkansas, he cause[d]
    the death of another person under circumstances that would be murder, except that
    he cause[d] the death under the influence of extreme emotional disturbance for which
    there is reasonable excuse
    2
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    Andrade was deported from the United States.
    Lobaton–Andrade was subsequently found by immigration officials in
    Brooks County, Texas, and charged with one count of being an alien who was
    unlawfully present in the United States after deportation, in violation of
    8 U.S.C. § 1326(a) and (b). Lobaton–Andrade pleaded guilty, without a plea
    agreement, and a presentence investigation report (“PSR”) was prepared using
    the 2014 edition of the United States Sentencing Guidelines.                 The PSR
    recommended a base offense level of 8 pursuant to § 2L1.2(a) of the Guidelines.
    It also recommended a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii),
    concluding that Lobaton–Andrade’s 2007 Arkansas manslaughter conviction
    constituted a “crime of violence” for which he received criminal history points.
    After reducing Lobaton–Andrade’s offense level by 3 because of his acceptance
    of responsibility, the PSR calculated a total offense level of 21. This total
    offense level, combined with a criminal history category of III, yielded an
    advisory sentencing range of 46 to 57 months of imprisonment.
    Lobaton–Andrade objected to the 16-level enhancement based on the
    PSR’s designation of his 2007 Arkansas conviction as a “crime of violence.”
    Lobaton–Andrade argued that the Arkansas offense did not constitute the
    enumerated offense of “manslaughter” for purposes of § 2L1.2 because
    Arkansas permits conviction for manslaughter with a mens rea of only
    negligence. See Ark. Code Ann. § 5-10-104(a)(4). The Government argued in
    response that the Arkansas manslaughter statute was divisible and the record
    documents from Lobaton–Andrade’s prior case established that he was
    to wit: On or about July 18, 2004, defendant did recklessly cause the death of
    Brandon Haley in Benton County, Arkansas by striking him with a vehicle,
    against the peace and dignity of the state of Arkansas.
    Lobaton–Andrade’s plea agreement included an agreed statement of facts (which mirrored
    the “Prosecutor’s Short Report of Circumstances” attached to the judgment), but does not
    identify the particular subsection of the statute to which he pleaded guilty.
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    convicted for committing the offense with a mens rea of recklessness. See 
    id. § 5-10-104(a)(3).
    At the sentencing hearing, Lobaton–Andrade reaffirmed his
    objection, which the district court overruled. The district imposed a sentence
    of 46 months of imprisonment, the low end of the advisory range, as well as a
    $100 special assessment. Lobaton–Andrade timely appealed.
    II. THE CRIME OF VIOLENCE ENHANCEMENT
    Lobaton–Andrade challenges the application of the district court’s crime
    of violence enhancement based on his 2007 Arkansas manslaughter conviction.
    Because    Lobaton–Andrade      properly   preserved   his    objection    to   that
    enhancement, we review whether his prior conviction qualifies as a crime of
    violence under the Guidelines de novo. See United States v. Hinkle, 
    832 F.3d 569
    , 574 (5th Cir. 2016).
    Under the Guidelines, a defendant who is convicted of illegal reentry
    receives a 16-level enhancement to his base offense if he was previously
    deported after a felony conviction for a “crime of violence.”             U.S.S.G.
    § 2L1.2(b)(1)(A)(ii).   The commentary to the Guidelines defines “crime of
    violence” to include, in pertinent part, “manslaughter.” U.S.S.G. § 2L1.2 cmt.
    n.1(B)(iii). The threshold issue raised by this appeal is whether the Arkansas
    manslaughter statute is divisible, such that Lobaton–Andrade’s offense of
    conviction might be narrowed to “recklessly caus[ing] the death of another
    person,” which is a categorical match for manslaughter under the Guidelines.
    Ark. Code Ann. § 5-10-104(a)(3). If the statute is not divisible, the parties
    agree that Lobaton–Andrade’s conviction under the Arkansas manslaughter
    statute would not qualify for a crime of violence enhancement under the
    Guidelines.
    A. The Categorical and Modified Categorical Approaches
    The concept of divisibility derives from the so-called “categorical” and
    “modified categorical” approaches we use to determine whether a defendant’s
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    conviction qualifies as an enumerated offense.       We generally employ the
    categorical approach in determining whether a prior conviction is included
    within an offense enumerated in the Guidelines. See, e.g., United States v.
    Howell, 
    838 F.3d 489
    , 494 (5th Cir. 2016); 
    Hinkle, 832 F.3d at 572
    . “Under this
    approach, [we] line up the elements of the prior offense with the elements of
    the generic [enumerated] offense . . . to see if they match.” Gomez–Perez v.
    Lynch, 
    829 F.3d 323
    , 326 (5th Cir. 2016). “[I]f the elements of the prior offense
    cover conduct beyond what the generic offense covers, then it is not a qualifying
    offense.” 
    Id. at 327.
    Importantly, the categorical approach “do[es] not consider
    the actual conduct of the defendant in committing the offense,” 
    Howell, 838 F.3d at 494
    , but is instead limited to “the fact of conviction and the statutory
    definition of the prior offense,” Taylor v. United States, 
    495 U.S. 575
    , 602
    (1990). Thus, “even if the defendant’s actual conduct (i.e., the facts of the
    crime) fits within the generic offense’s boundaries,” a prior conviction is not a
    qualifying offense if the statute defines the offense more broadly than the
    Guidelines. Mathis v. United States, 
    136 S. Ct. 2243
    , 2248 (2016).
    Here, the parties agree that Lobaton–Andrade’s conviction does not
    qualify as a crime of violence under the categorical approach because the
    Arkansas manslaughter statute is broader than—and thus not a categorical
    match with—the generic definition of manslaughter. But that does not end the
    inquiry because we may apply the modified categorical approach “to narrow an
    offense that otherwise would not be a categorical match with an enumerated
    offense.” 
    Gomez–Perez, 829 F.3d at 326
    . However, that approach only applies
    when a statute is “divisible,” meaning it “sets out one or more elements of the
    offense in the alternative.” Descamps v. United States, 
    133 S. Ct. 2276
    , 2281
    (2013). In such cases, a court may “consult a limited class of documents . . . to
    determine which alternative formed the basis of the defendant’s prior
    conviction.” 
    Id. The documents
    that a court may consult—commonly referred
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    to as Shepard documents—include the indictment or information from the
    earlier conviction, as well as “the terms of a plea agreement or transcript of
    colloquy between judge and defendant in which the factual basis for the plea
    was confirmed by the defendant.” Shepard v. United States, 
    544 U.S. 13
    , 26
    (2005).
    Recently, in Mathis v. United States, the Supreme Court resolved a split
    among the circuits regarding what qualifies as a divisible statute, clarifying
    that a statute is only divisible (and, therefore, subject to the modified
    categorical approach) if it creates multiple offenses by listing one or more
    alternative elements, as opposed to merely listing alternative means of
    satisfying a particular element. 2 
    Mathis, 136 S. Ct. at 2251
    –54; see also, e.g.,
    
    Gomez–Perez, 829 F.3d at 326
    –27. “The practical difference being that a jury
    has to agree on one of multiple elements that a statute lists, whereas the jury
    need not agree on the same alternative means so long all jurors conclude that
    the defendant engaged in one of the possible means of committing a crime.”
    
    Gomez–Perez, 829 F.3d at 327
    . Thus, in light of Mathis, we have recognized
    that “[t]he test to distinguish means from elements is whether a jury must
    agree.” Howell, 
    838 F.3d 497
    ; see also 
    Hinkle, 832 F.3d at 575
    (“[T]here is a
    difference between alternative elements of an offense and alternative means of
    satisfying a single element. Elements must be agreed upon by a jury.” (footnote
    omitted)).
    When “‘a state court decision definitively answers the [means or
    elements] question’” by specifying that there need not be agreement among the
    jury as to the alternatively phrased items, “our inquiry is at an end” under
    2 “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the
    ‘prosecution must prove to sustain a conviction.’” 
    Mathis, 136 S. Ct. at 2248
    (quoting Black’s
    Law Dictionary 634 (10th ed. 2014)). “Means,” by contrast, are facts extraneous to the crime’s
    legal requirements that “need neither be found by a jury nor admitted by a defendant.” 
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    Mathis.   
    Howell, 838 F.3d at 498
    (quoting 
    Mathis, 136 S. Ct. at 2256
    ).
    Alternatively, as Mathis recognizes, “the statute on its face may resolve the
    issue” when, for instance, the statutory alternatives carry different
    punishments (and so are elements) or are listed as “illustrative examples” (and
    so are means). 
    Mathis, 136 S. Ct. at 2256
    . “And a statute may itself identify
    which things must be charged (and so are elements) and which need not be
    (and so are means).” 
    Id. State law,
    however, may fail to provide a clear answer to the means or
    elements question. 
    Id. In such
    cases, Mathis offers courts another tool: it
    allows them to consult the Shepard documents “for ‘the sole and limited
    purpose of determining whether [the listed items are] element[s] of the
    offense.’” 
    Id. (alterations in
    original) (quoting Rendon v. Holder, 
    782 F.3d 466
    ,
    473–74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh’g en banc));
    see also Ibanez–Beltran v. Lynch, --- F. App’x ---, 
    2017 WL 113916
    , at *3 (5th
    Cir. 2017) (per curiam). If those documents “reiterat[e] all the terms of [the]
    law,” then Mathis instructs that “each alternative is only a possible means of
    commission, not an element that the prosecutor must prove to a jury beyond a
    reasonable doubt.” 
    Mathis, 136 S. Ct. at 2257
    .          Conversely, the record
    documents might indicate that the statute contains elements going toward
    separate crimes “by referencing one alternative term to the exclusion of all
    others.” 
    Id. Mathis cautions,
    however, that “such record materials will not in
    every case speak plainly, and if they do not, a sentencing judge will not be able
    to satisfy ‘[the] demand for certainty’ when determining whether a defendant
    was convicted of a generic offense.” 
    Id. (quoting Shepard,
    544 U.S. at 21).
    B. Divisibility of the Arkansas Manslaughter Statute
    With this background in mind, we turn to the threshold issue presented
    by this appeal: whether Arkansas Code § 5-10-104(a) is divisible. As directed
    by Mathis, we begin our analysis of this issue with Arkansas law. Arkansas’s
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    court of appeals has permitted instructions on more than one manslaughter
    alternative under § 5-10-104(a) without apparently requiring a unanimous
    jury finding on the particular manslaughter alternative that was proved, see
    Worring v. State, 
    616 S.W.2d 23
    , 24 (Ark. Ct. App. 1981); see also Albretsen v.
    State, 
    454 S.W.3d 232
    , 235–36 (Ark. Ct. App. 2015); Donovan v. State, 
    764 S.W.2d 47
    , 50 (Ark. Ct. App. 1989), which suggests that the Arkansas
    manslaughter statute’s subsections are alternative means of satisfying a single
    mens rea element. Indeed, the Arkansas Supreme Court has described the
    subsections of the Arkansas manslaughter statute as containing “alternative
    grounds,” Wyles v. State, 
    182 S.W.3d 142
    , 146 (Ark. 2004), and found that the
    two second-degree murder alternatives under Arkansas Code § 5-10-103(a)—
    the immediately preceding section—are “two ways” of establishing a single
    “mens rea element,” Wyles v. State, 
    249 S.W.3d 782
    , 786 (Ark. 2007).
    The Government counters that Arkansas Code § 5-1-102 nonetheless
    makes clear that the manslaughter statute’s subsections establish alternative
    elements going toward separate crimes. 3 § 5-1-102 defines an “element of [an]
    offense” to mean, in pertinent part, “the conduct, the attendant circumstances,
    or the result of conduct that . . . [e]stablishes the kind of culpable mental state
    required for the commission of the offense.” According to the Government, each
    subsection of the manslaughter statute identifies a different “kind of culpable
    mental state” and, thus, a separate element. The Government’s argument has
    some appeal but ultimately fails under scrutiny. As the Government points
    out, Arkansas courts have sometimes analyzed the culpable mental states set
    forth in the manslaughter statute separately, see, e.g., Rollins v. State, 
    347 S.W.3d 20
    , 26 (Ark. 2009) (analyzing whether the state proved the defendant
    3  Therefore, according to the Government, § 5-10-104(a) actually establishes four
    different manslaughter offenses: (1) extreme emotional disturbance manslaughter; (2)
    assisted suicide manslaughter; (3) reckless manslaughter; and (4) felony manslaughter.
    8
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    “recklessly caused the death of another person”), which does support its
    position. But in those cases only one subsection of the Arkansas manslaughter
    statute appears to have been charged. When more than one subsection was
    charged, Arkansas courts have analyzed the culpable mental state identified
    in the manslaughter statute’s subsections collectively. See, e.g., 
    Worring, 616 S.W.2d at 24
    (analyzing whether there was evidence that the defendant either
    recklessly caused her husband’s death or caused his death under extreme
    emotional disturbance).      This suggests that Arkansas courts treat the
    manslaughter statute’s subsections, collectively, as establishing the “kind of
    culpable mental state” required to commit the offense of manslaughter.
    Restated, it suggests that Arkansas courts treat the multiple culpable mental
    states set forth in the manslaughter statute as alternative means of
    establishing a single mens rea element. Under Mathis, this conclusion is likely
    sufficient to resolve the issue of divisibility. See, e.g., 
    Howell, 838 F.3d at 498
    (recognizing that a court’s inquiry is at an end under Mathis when state law
    definitively answers the means or elements question).
    But even examining the text of § 5-10-104(a), as the Government urges
    us to do, the result would be same. The Government argues that the Arkansas
    manslaughter statute is divisible because it does not offer “illustrative
    examples,” which Mathis concluded set forth “only a crime’s means of
    commission.” 
    Mathis, 136 S. Ct. at 2256
    . Mathis did not, however, hold the
    converse: that a statute that does not offer illustrative examples sets forth
    alternative elements going towards different crimes. See 
    Howell, 838 F.3d at 497
    –99 (holding that a statute set forth alternative means even though it did
    not offer illustrative examples); 
    Gomez–Perez, 829 F.3d at 328
    (same). If we
    were writing on a clean slate, the absence of illustrative examples might well
    support a finding that the Arkansas manslaughter statute’s subsections set
    forth alternative elements. See United States v. Uribe, 
    838 F.3d 667
    , 670 (5th
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    Cir. 2016) (relying on the absence of illustrative examples to conclude that
    statute set forth alternative elements). But we are not. As 
    discussed supra
    ,
    Arkansas courts have already suggested that the multiple mental states listed
    in the Arkansas manslaughter statute list alternative means of establishing a
    single mens rea element. And this is consistent with what has been described
    as “widespread acceptance” for construing analogous first-degree murder
    statutes setting forth multiple “mental states as alternative means of
    satisfying the mens rea element of the single crime of first-degree murder.”
    Schad v. Arizona, 
    501 U.S. 624
    , 642 (1991) (plurality opinion).
    If we examine the Shepard documents from Lobaton–Andrade’s 2007
    Arkansas conviction, the result is consistent. As 
    discussed supra
    , the facts of
    Lobaton–Andrade’s prior crime are unimportant at this stage, as the Shepard
    documents may be consulted only for the narrow purpose of determining
    whether the subsections of the Arkansas manslaughter statute are elements
    or means. 
    Mathis, 136 S. Ct. at 2256
    –57. Here, the information alleges that
    Lobaton–Andrade “did recklessly cause the death of [another] . . . by striking
    him with a vehicle.” At first blush, this suggests that the alternative mental
    states listed in § 5-10-104(a) constitute separate elements. See Mathis, 136 S.
    Ct. at 2257 (“[A]n indictment . . . could indicate, by referencing one alternative
    term to the exclusion of all others, that the statute contains a list of elements,
    each one of which goes toward a separate crime.”); see also Ibanez–Beltran, ---
    F. App’x at ---, 
    2017 WL 113916
    , at *3. Yet the information also charges
    Lobaton–Andrade under a completely different subsection of the manslaughter
    statute—§ 5-10-104(a)(1), concerning death of another under extreme
    emotional disturbance—which suggests that the alternative mental states
    listed in § 5-10-104(a) are merely means, rather than elements. Thus, this is
    one of those instances where the Shepard documents do not “speak plainly” on
    the question of means or elements, and accordingly, they cannot support a
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    finding of divisibility. 
    Mathis, 136 S. Ct. at 2257
    (citing 
    Shepard, 544 U.S. at 21
    ).
    In sum, the Government has failed to demonstrate that the subsections
    of the Arkansas manslaughter statute list alternative elements, rather than
    means, and that the statute is, therefore, divisible. See, e.g., United States v.
    Constante, 
    544 F.3d 584
    , 587 (5th Cir. 2008) (per curiam) (recognizing that it
    is the Government’s burden to prove that a prior conviction qualifies for a
    sentencing enhancement).           Because the Arkansas manslaughter statute
    indisputably “cover[s] a greater swath of conduct” than the Guideline’s offense
    of manslaughter, Lobaton–Andrade’s 2007 Arkansas manslaughter conviction
    cannot otherwise qualify as a “crime of violence” under § 2L1.2(b)(1)(A)(ii) of
    the Guidelines. 
    Mathis, 136 S. Ct. at 2251
    . Therefore, the district court erred
    in apply the 16-level crime of violence sentencing enhancement, and Lobaton–
    Andrade must be resentenced. 4 We express no opinion as to the appropriate
    sentence on remand.
    IV. CONCLUSION
    For the foregoing reasons, we VACATE Lobaton–Andrade’s sentence and
    REMAND to the district court for resentencing.
    The parties agree that the district court’s error was harmful and that Lobaton–
    4
    Andrade’s 2007 Arkansas manslaughter conviction would not qualify as a crime of violence
    on the alternative ground that it had an element of force. Accordingly, we do not separately
    address those issues here.
    11