United States v. J. Torres-Villalobos , 477 F.3d 978 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1876
___________
United States of America, *
*
Appellee, *
*
v. *
*
Jesus Torres-Villalobos, also known *
as Javier Rios-Hernandez, also known *
as Jesus Mendez-Rios, also known as *
Jesus Lopez-Torres, also known as * Appeal from the United States
Jesus T. Villalobos, also known as * District Court for the
Javier Hernandez-Rios, also known as * District of Minnesota.
Jose Torres-Mendez, also known as *
Javier Perez-Rios, also known as Jesse *
Torres-Perez, also known as Jesse *
Torres-Villalobos, also known as Javier *
Torres-Mendez, also known as Jose *
Realzola-Perez, also known as Julio *
Hernandez Royer, also known as Jesus *
Lopez, also known as Javier Perez, *
*
Appellant. *
___________
Submitted: October 17, 2006
Filed: February 22, 2007 (Corrected: 03/07/07)
___________
Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
A jury convicted Jesus Torres-Villalobos of illegal reentry after deportation, in
violation of 8 U.S.C. § 1326. At sentencing, the district court concluded that Torres-
Villalobos’s prior conviction in Minnesota for second-degree manslaughter was an
“aggravated felony,” so that the statutory maximum term of imprisonment was twenty
years rather than two years, see 8 U.S.C. § 1326(b)(2), and then imposed a term of 92
months’ imprisonment. Torres-Villalobos challenges his conviction based on the
admission of certain disputed evidence, and he argues that his sentence was imposed
in violation of law. We affirm the conviction, but vacate the sentence and remand for
further proceedings.
I.
According to evidence presented in the district court, Torres-Villalobos is a
Mexican national who was found in a jail in St. Cloud, Minnesota, by immigration
authorities in 2005. His criminal history includes a 2001 conviction in Minnesota for
second-degree manslaughter, which resulted in his deportation to Mexico in April
2001. After he was deported, Torres-Villalobos returned to the United States, and he
was arrested and charged in federal court in Texas with illegally reentering the country
after having been deported. He pled guilty in October 2001 and was sentenced to 24
months’ imprisonment. Upon release from prison in February 2003, Torres-
Villalobos was again deported to Mexico. At some point thereafter, Torres-Villalobos
returned to the United States, and in July 2005, he was arrested on a drug charge in
Minnesota. After he was found during a routine check of jails by immigration
authorities, a federal grand jury charged him with illegal reentry after deportation.
The indictment charged that Torres-Villalobos had been twice previously
deported to Mexico, on or about April 12, 2001, and February 5, 2003. The grand
jury alleged that these deportations followed Torres-Villalobos’s conviction in March
1998 for second-degree manslaughter, which the grand jury alleged was an aggravated
felony. The indictment charged that Torres-Villalobos knowingly and unlawfully
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entered and was found in the United States in 2005 after this conviction and these two
deportations.
At trial, the government introduced documents concerning the prior
deportations. The jury returned a verdict of guilty on the illegal reentry charge. At
sentencing, the court concluded that the statutory maximum penalty was twenty years’
imprisonment, because Torres-Villalobos’ prior conviction for second degree
manslaughter qualified as an “aggravated felony” for purposes of 8 U.S.C.
§ 1326(b)(2). The court then imposed a sentence of 92 months’ imprisonment, which
was the sentence at the bottom of the advisory guideline range.
II.
A.
In challenging his conviction, Torres-Villalobos disputes several evidentiary
rulings of the district court. We review these decisions for abuse of discretion.
United States v. Seifert, 445 F.3d 1043, 1045 (8th Cir. 2006).
Torres-Villalobos argues that the district court erred by permitting the
government to introduce evidence of two prior deportations – one in April 2001 and
another in February 2003 – through documents described as “warrants for
deportation.” The government was required to prove a prior deportation as an element
of the charged offense, but early in the trial, Torres-Villalobos argued that the only
deportation that was “properly provable as an element of the crime” was the April
2001 removal. (T. Tr. I at 22). He argues on appeal that the district court erred by
admitting evidence of the February 2003 deportation, because it was not relevant to
the charged offense and not admissible as a prior bad act under Federal Rule of
Evidence 404(b).
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We conclude that evidence of the February 2003 deportation was properly
admitted for two reasons. First, it was relevant to proving an element of the charged
offense. The government was required to prove a prior deportation, and it could
satisfy that element by proving either the April 2001 deportation or the February 2003
deportation. See United States v. Meza-Villarello, 602 F.2d 209, 210-11 (9th Cir.
1979) (per curiam). Second, at the conclusion of the evidence, the parties agreed that
the jury instructions would specify that the government must establish the prior
deportation element by proving the February 2003 deportation. The April 2001
deportation was stricken from the instructions. (T. Tr. II at 64-68, 74). By agreeing
that the case would be submitted to the jury based on the allegation that he was
previously deported in February 2003, Torres-Villalobos waived any claim that
evidence of February 2003 deportation was irrelevant.
Torres-Villalobos also appears to contend on appeal that the district court erred
by admitting evidence of his deportation in April 2001. This evidence was received
at a point in the trial when Torres-Villalobos maintained that only the April 2001
deportation could satisfy the prior deportation element of the offense. The
government could rely on the April 2001 deportation to prove an element of the
charged offense, so the evidence was clearly relevant. Torres-Villalobos also
complains that the district court permitted evidence that he was in the United States
as far back as June 1991. That evidence, however, was received in connection with
testimony from an immigration agent that Torres-Villalobos made admissions
concerning his alienage – another element of the offense – when he was interviewed
in June 1991. Therefore, the evidence was relevant and properly admitted. Another
evidentiary challenge relates to testimony that Torres-Villalobos was found in a
correctional facility in 2005, and that investigators learned of his presence “from a
routine check of the jails.” The district court did not err in allowing this evidence,
because the government was required to prove that Torres-Villalobos was “found” in
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the United States in 2005, (see Jury Instruction No. 11, R. Doc. 17, at 14),1 and the
circumstances of his apprehension were relevant to proving that element of the
offense.
Torres-Villalobos further complains that the court erred by admitting evidence
of a prior conviction for illegal re-entry in Texas in December 2001. The government
sought to introduce evidence relating to this prior conviction to prove the defendant’s
alienage. There was brief testimony from an immigration agent that Torres-Villalobos
had been convicted of a “Title 8, United States Code, Section 1326 offense,” but the
certified record of the conviction was not received in evidence. (T. Tr. I at 80-81).
Later, with the agreement of the parties, the court used the record of conviction to take
judicial notice that the defendant admitted his legal status was “alien” on December
19, 2001, and there was no further reference to the fact of conviction. (T. Tr. I at 81-
82, 122). We find no abuse of discretion in allowing this limited use of the prior
conviction to prove an element of the charged offense.
B.
Torres-Villalobos also challenges the admission of warrants of deportation on
the ground that they deprived him of the right to “be confronted with the witnesses
against him” under the Sixth Amendment. A warrant of deportation is a document
that commands an immigration official to take custody of the deportee and to remove
him from the United States. United States v. Garcia, 452 F.3d 36, 41 (1st Cir. 2006).
1
The governing statute requires only that the government prove that the alien
entered, attempted to enter, or was found in the United States, 8 U.S.C. § 1326(a), but
the government’s proposed instructions and the final jury instructions imposed a
requirement that the government prove both that Torres-Villalobos entered and was
found in the United States. (R. Doc. 6, at 28; R. Doc. 17, at 14). This heightened
requirement thus became the law of the case. United States v. Staples, 435 F.3d 860,
866 (8th Cir.), cert. denied, 127 S. Ct. 148 (2006).
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A signed warrant indicates that the attesting witness observed the deportee leaving the
country. As noted, the government introduced the warrants of deportation to prove
the element of the charged offense that Torres-Villalobos had been deported in the
past. The witness who testified concerning the February 2003 warrant explained that
he could not specifically recall seeing Torres-Villalobos cross the border, but that his
regular practice was to sign the warrant upon seeing the alien depart the country, and
that the records therefore accurately reflected the fact of his observations at the time.
(T. Tr. I at 126-31). Because the government could not produce testimony from
someone who actually recalled seeing Torres-Villalobos leave the country, Torres-
Villalobos argues that admission of the warrant of deportation denied him the right to
confront his accuser.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that
the Confrontation Clause bars “admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Id. at 53-54. Only testimonial statements
“cause the declarant to be a ‘witness’ within the meaning of the Confrontation
Clause.” Davis v. Washington, 126 S. Ct. 2266, 2273 (2006). Crawford declined “to
spell out a comprehensive definition of ‘testimonial,’” 541 U.S. at 68, but gave
examples of testimonial statements and historical exceptions to the hearsay rule that
permitted receipt of non-testimonial evidence. Id. at 51-52, 56. With respect to the
latter category, the Court observed that “[m]ost of the hearsay exceptions covered
statements that by their nature were not testimonial – for example, business records
or statements in furtherance of a conspiracy.” Id. at 56; see also id. at 76 (Rehnquist,
C.J., concurring in judgment) (“[T]he Court’s analysis of ‘testimony’ excludes at least
some hearsay exceptions, such as business records and official records.”); United
States v. Urqhart, 469 F.3d 745, 748-49 (8th Cir. 2006) (likening a Certificate of
Nonexistence of Record to a business record and holding that it is non-testimonial
evidence under Crawford).
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Torres-Villalobos seeks to extend the rule of Crawford to warrants of
deportation. He contends that a warrant of deportation does nothing more than testify
as to the attesting witness’s declaration that the alien was deported on the date in
question. Therefore, Torres-Villalobos argues, a warrant of deportation recounts
“testimonial” hearsay, such that introduction of the document violates his right to
confront his accuser.
Four circuits have addressed this issue, and all have concluded that the attesting
witness’s declaration is not “testimonial.” See, e.g., Garcia, 452 F.3d at 41-42; United
States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.) (per curiam), cert. denied, 127
S. Ct. 265 (2006); United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.
2005), cert. denied, 126 S. Ct. 1652 (2006); United States v. Cantellano, 430 F.3d
1142, 1145 (11th Cir. 2005), cert. denied, 126 S. Ct. 1604 (2006). The Ninth Circuit
concluded that a warrant of deportation is not testimonial “because it [is] not made in
anticipation of litigation, and because it is simply a routine, objective cataloging of an
unambiguous factual matter.” Bahena-Cardenas, 411 F.3d at 1075. The Eleventh
Circuit added that “a warrant of deportation does not implicate adversarial concerns
in the same way or to the same degree as testimonial evidence,” because it is
“recorded routinely and not in preparation for a criminal trial.” United States v.
Cantellano, 430 F.3d at 1145.
Warrants of deportation are produced under circumstances objectively
indicating that their primary purpose is to maintain records concerning the movements
of aliens and to ensure compliance with orders of deportation, not to prove facts for
use in future criminal prosecutions. See Davis, 126 S. Ct. at 2273-74. They are
properly characterized as non-testimonial official records that were prepared
independent of this litigation. See Crawford, 541 U.S. at 56; Urqhart, 469 F.3d at
748-49. We therefore agree with our sister circuits that the warrants of deportation
are not “testimonial” evidence that implicate the Confrontation Clause of the Sixth
Amendment.
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Torres-Villalobos’s claim based on Crawford fails as to one warrant for another
reason. With respect to the February 2003 warrant of deportation, which documented
the prior deportation that satisfied one element of the instant offense, (T. Tr. II at 64-
68, 74), he was afforded an opportunity to confront the witness who attested to his
departure from the country. The warrant of deportation recounted that Torres-
Villalobos’s departure was witnessed by Eduardo Benavidez, an immigration
enforcement agent. (T. Tr. I at 75). Benavidez testified at trial concerning his
completion of the warrant. (Id. at 120-33). He was confronted and cross-examined
by Torres-Villalobos. Accordingly, even assuming the February 2003 warrant of
deportation was testimonial, Torres-Villalobos was able to exercise his Sixth
Amendment right to confront the accusing witness. Crawford, 541 U.S. at 60 n.9
(“[W]hen the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior testimonial statements.”).
III.
In challenging his sentence, Torres-Villalobos maintains that the district court
violated his right to a jury trial under the Sixth Amendment by finding that his prior
Minnesota conviction for second-degree manslaughter was an “aggravated felony”
under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(43)(F), and
increasing his statutory maximum sentence on that basis. See id. § 1326(b). This
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998),
and United States v. Kempis-Bonola, 287 F.3d 699, 702 (8th Cir. 2002), which are still
good law. See United States v. Booker, 543 U.S. 220, 244 (2005); United States v.
Lopez-Zepeda, 466 F.3d 651, 655 (8th Cir. 2006).
Alternatively, assuming the fact and nature of his prior conviction may be
decided by the court, Torres-Villalobos disputes the district court’s conclusion that his
prior second-degree manslaughter conviction is an “aggravated felony.” Section
1326(b)(2) provides for a statutory maximum penalty of twenty years when the
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offender’s prior removal was “subsequent to a conviction for commission of an
aggravated felony.” 8 U.S.C. § 1326(b)(2). If the alien has not previously sustained
a conviction for an aggravated felony, then the statutory maximum sentence for illegal
reentry is limited to 24 months’ imprisonment, id. § 1326(a), which is considerably
less than the 92-month term imposed by the district court.
In Minnesota, there are five enumerated means of committing manslaughter in
the second degree. Minn. Stat. § 609.205. The record does not include a judgment
of conviction, charging document, or other similar record showing the subsection
under which Torres-Villalobos was convicted.2 The parties focus primarily on the
first subsection, which encompasses a person who causes the death of another by “the
person’s culpable negligence,” whereby the person “creates an unreasonable risk, and
consciously takes chances of causing death or great bodily harm to another.” Id.
§ 609.205(1). The Minnesota courts have construed “culpable negligence” to mean
“gross negligence coupled with the element of recklessness,” and “intentional conduct
which the actor may not intend to be harmful but which an ordinary and reasonably
prudent man would recognize as involving a strong probability of injury to others.”
State v. Beilke, 127 N.W.2d 516, 521 (Minn. 1964).
The INA defines an aggravated felony as a “crime of violence” under 18 U.S.C.
§ 16 for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(43)(F).
The district court concluded that Torres-Villalobos’s conviction for second-degree
manslaughter in Minnesota was a “crime of violence” under § 16, and thus an
“aggravated felony” under § 1326. Based on the statutory definition and the Supreme
2
The presentence report recites that according to “offense materials,” on
October 9, 1997, a witness observed that Torres-Villalobos chasing Elias Solis-
Holguin, while Torres-Villalobos said that Solis-Holguin was chasing him. The report
states that “[p]olice learned that the defendant stabbed Solis-Holguin with a knife in
the chest,” and that Torres-Villalobos pled guilty to second-degree manslaughter in
January 2001. (PSR ¶ 22).
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Court’s recent guidance, however, we conclude that the manslaughter offense does not
qualify as an “aggravated felony.”
Section 16 of Title 18 defines a “crime of violence” as:
(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. The language of § 16 “requires us to look to the elements and nature
of the offense of conviction, rather than to the particular facts relating to petitioner’s
crime.” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004).
Using the categorical approach, Leocal held that offenses that have no mens rea
component or require only a showing of negligence are not crimes of violence under
§ 16. Id. at 9-10. The Court concluded that for an offense to be a crime of violence
under § 16(a), the “active employment” of physical force must be an element of the
offense. Id. at 9. Because § 16(a) requires the “use” of force, it “most naturally
suggests a higher degree of intent than negligent or merely accidental conduct,” and
it is “much less natural to say that a person actively employs physical force against
another person by accident.” Id. Thus, the offense of causing injury while driving
intoxicated was not a crime of violence, because it did not have the “use of force” as
an element.
Though § 16(b) “sweeps more broadly” than § 16(a), it does not thereby
“encompass all negligent misconduct.” Id. at 10. “It simply covers offenses that
naturally involve a person acting in disregard of the risk that physical force might be
used against another in committing an offense.” Id. As with § 16(a), the “use” of
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force described in § 16(b) requires a risk of “active employment” of force, and not
merely “accidental or negligent conduct.” Id. at 11. Thus, § 16(b) requires a
categorical determination of whether the perpetrator of the offense consciously risks
that force will be “actively employed” in the course of committing the offense.
Applying that subsection, the Supreme Court concluded that a person does not “risk[]
having to ‘use’ physical force against another person in the course of operating a
vehicle while intoxicated and causing injury.” Id.
Leocal reserved the question whether a statute requiring “proof of the reckless
use of force against the person or property of another qualifies as a crime of violence
under 18 U.S.C. § 16.” Id. at 13 (emphasis in original). Nevertheless, the Court’s
reasoning suggests that crimes requiring only reckless disregard for the risk of
physical injury to another are not crimes of violence under § 16. Interpreting Leocal,
the Third Circuit, in an opinion by then-Judge Alito, “[could not] overlook the Court’s
repeated statement that ‘accidental’ conduct (which would seem to include reckless
conduct) is not enough to qualify as a crime of violence.” Oyebanji v. Gonzales, 418
F.3d 260, 264 (3d Cir. 2005). Therefore, the court concluded that a conviction for
vehicular homicide, which required proof of reckless conduct, was not a crime of
violence under § 16. Id. at 265. Similarly, the en banc Ninth Circuit recently held
that “the reckless use of force is ‘accidental’ and crimes of recklessness cannot be
crimes of violence [under § 16].” Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130
(9th Cir. 2006) (en banc). Several other circuits have reached similar conclusions,
before and after Leocal. See Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th
Cir. 2005) (holding that involuntary manslaughter is not a crime of violence under
§ 16); Jobson v. Ashcroft, 326 F.3d 367, 375-76 (2d Cir. 2003) (same); United States
v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) (concluding that intentional use of
force, or recklessness as to possibility of intentional use of force, is required for an
offense to be a crime of violence under § 16, and that felony driving while intoxicated
does not qualify); Bazan-Reyes v. INS, 256 F.3d 600, 609 (7th Cir. 2001) (holding that
aliens’ prior convictions for drunk driving and homicide by intoxicated use of a motor
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vehicle were not crimes of violence under § 16, because there was no intentional use
of force); see also Tran v. Gonzales, 414 F.3d 464, 471 (3d Cir. 2005) (holding that
“reckless burning or exploding” was not a crime of violence under § 16, and
concluding that Ҥ 16(b) crimes are those raising a substantial risk that the actor will
intentionally use force in the furtherance of the offense.”) (emphasis in original).3
Before Leocal, we had concluded that involuntary manslaughter as proscribed
by 18 U.S.C. § 1112 was a “crime of violence” under a statute worded identically to
§ 16(b). United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18
U.S.C. § 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002)
(holding that criminal vehicular homicide is a crime of violence under § 16). Moore
relied on United States v. Springfield, 829 F.2d 860, 863 (9th Cir. 1987), see 38 F.3d
at 981, which reasoned that involuntary manslaughter “comes within the intent, if not
the precise wording of § 924(c)(3),” because the crime was “highly likely to be the
result of violence.” Moore, 38 F.3d at 979 (quoting Springfield). In Omar, we relied
on Moore and held that the use of force required in § 16(b) was satisfied in the
vehicular homicide statute by the “considerable physical force” that a vehicle operated
by an impaired driver could exert. Omar, 298 F.3d at 717. In contrast to our
reasoning in Moore, however, Leocal focused on the precise wording of § 16 and the
elements and nature of the prior conviction. 543 U.S. at 7-9. Because the textual
3
Unlike other provisions defining crimes of violence, the “substantial risk” in
§ 16(b) does not relate to the risk of physical injury that a person’s conduct presents.
See Leocal, 543 U.S. at 10 n.7 (comparing § 16(b) with USSG § 4B1.2); see also
United States v. Hudson, 414 F.3d 931, 935 (8th Cir. 2005), cert. denied, 126 S. Ct.
1769 (2006). Instead, § 16(b) deals with offenses that involve ignoring “the risk that
the use of physical force against another might be required in committing a crime.”
Leocal, 543 U.S. at 10 (emphasis added). Thus, although felony drunk driving can be
a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii), which requires only that the
offense involve “conduct that presents a serious potential risk of physical injury to
another,” United States v. McCall, 439 F.3d 967, 973 (8th Cir. 2006) (en banc), it is
not a crime of violence under § 16.
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analysis and analytical framework outlined in Leocal is inconsistent with our
reasoning in Moore and Omar, we conclude that Leocal superceded our prior opinions
such that they do not bind us here. T.L. ex rel. Ingram v. United States, 443 F.3d 956,
960 (8th Cir. 2006). Indeed, the Supreme Court cited Omar as one of the conflicting
decisions that led the Court to grant certiorari in Leocal. 543 U.S. at 6.
Under Minnesota law, a person can commit second-degree manslaughter
without using force or risking the intentional use of force. Minn. Stat. § 609.205. A
person can commit this crime by recklessly leaving a child alone with lit candles that
later start a fire, State v. Boyer, No. C8-01-617, 2001 WL 1491450, at *1 (Minn. Ct.
App. Nov. 27, 2001), by allowing a child to die of dehydration while in the person’s
care, State v. Williams, No. A04-1694, 2005 WL 3046328, at *1 (Minn. Ct. App. Nov.
15, 2005), by leaving explosives and blasting caps stored in an automobile where they
are later ignited by the use of jumper cables, State v. Bicek, 429 N.W.2d 289, 291
(Minn. Ct. App. 1988), and, indeed, by driving drunk with “culpable negligence” in
a manner that causes the death of a passenger. State v. Geary, 239 N.W. 158, 159-60
(Minn. 1931). As such, the “use of force,” as Leocal interpreted that phrase, is not an
element of a second-degree manslaughter conviction.
Nor does second-degree manslaughter involve a risk that the perpetrator will
intentionally use physical force in the course of committing the offense. A
perpetrator’s knowing disregard of a serious risk of injury, as required by the
Minnesota manslaughter statute, is different from a robber or burglar ignoring the risk
that he may resort to the intentional use of force in committing the offense.
Cf. Leocal, 543 U.S. at 10 n.7 (“The risk that an accident may occur when an
individual drives while intoxicated is simply not the same thing as the risk that the
individual may ‘use’ physical force against another in committing the DUI offense.”);
see Tran, 414 F.3d at 471. For these reasons, we conclude that Torres-Villalobos’s
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prior conviction for second-degree manslaughter was not a “crime of violence” under
18 U.S.C. § 16, or an “aggravated felony” under § 1326(b).4
The government argues that whether or not second-degree manslaughter is
properly considered a crime of violence under § 16(b), a prior judicial determination
precludes relitigation of this issue. In 2002, the Fifth Circuit concluded in a non-
precedential opinion that Torres-Villalobos’s manslaughter conviction was a crime of
violence under § 16. United States v. Torres-Villalobos, No. 01-51284, 2002 WL
31845159, at *1 (5th Cir. Dec. 3, 2002) (unpublished). Bearing in mind that “the rule
of collateral estoppel in criminal cases is not to be applied with the hypertechnical and
archaic approach of a 19th century pleading book, but with realism and rationality,”
United States v. Hernandez-Uribe, 515 F.2d 20, 22 (8th Cir. 1975), we do not believe
this is an appropriate case for applying the doctrine of collateral estoppel. The
Supreme Court’s decision in Leocal has clarified the law since 2002, and whether the
prior conviction for manslaughter qualifies as an aggravated felony for purposes of
the sentence in this case should be determined in accordance with present law.5
4
A dissenting judge in the Fourth Circuit expressed the view after Leocal that
a person acting with the mens rea of recklessness can “actively employ” physical
force, and thus commit a “crime of violence” under 18 U.S.C. § 16. Bejarano-
Urrutia, 413 F.3d at 449 (Niemeyer, J., dissenting). Under this view, where an
involuntary manslaughter statute “encompasses both active commissions and passive
omissions,” a court would look to the record of conviction to determine whether the
offense involved “physical force,” as opposed to a passive omission. Id. at 450. Even
this minority approach, however, would not support the conclusion that Torres-
Villalobos’s manslaughter conviction was a crime of violence. The record on appeal
does not include a charging document, plea colloquy, or other similar record
establishing the basis for the manslaughter conviction. The factual recitation in the
presentence report appears to rely on police reports, (PSR ¶ 22), which may not be
considered in those circumstances where a court is permitted to look beyond the
elements of an “overinclusive” statute. See McCall, 439 F.3d at 974.
5
Torres-Villalobos also complains that the district court miscalculated his
criminal history score under the advisory guidelines by counting one point for a
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* * *
For the foregoing reasons, we affirm the judgment of conviction, but vacate the
sentence and remand for resentencing consistent with this opinion.
______________________________
misdemeanor conviction in which Torres-Villalobos was not represented by counsel.
The government concedes error, and we presume the district court will modify its
guideline computation accordingly on remand.
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