United States v. Gomez-Leon ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50138
Plaintiff-Appellee,
v.  D.C. No.
CR-04-02230-WQH
JAVIER GOMEZ-LEON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
March 4, 2008—Pasadena, California
Filed September 24, 2008
Before: John R. Gibson,* Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Gibson;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
13487
UNITED STATES v. GOMEZ-LEON 13491
COUNSEL
Lynn H. Ball, Law Office of Lynn H. Ball, San Diego, Cali-
fornia, for the defendant-appellant.
13492 UNITED STATES v. GOMEZ-LEON
Timothy F. Salel, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
GIBSON, Circuit Judge:
Javier Gomez-Leon was found guilty by the district court
of attempted entry into the United States after deportation, 18
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)(1)(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)(1)
(A)(i) & (ii). We reverse and remand for re-sentencing.
Gomez is a Mexican national with a long history of depor-
tation and unlawful behavior. He entered the country illegally
as early as 1994. In 1998, he came to the attention of immi-
gration authorities when he was convicted for driving a vehi-
cle 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 coun-
try. He was convicted in 2000 of receiving stolen goods and
UNITED STATES v. GOMEZ-LEON 13493
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
intoxicated without gross negligence, Cal. Penal Code
§ 192(c)(3) (1998),1 for which he was sentenced to two years’
imprisonment. Following his release, Gomez was once again
removed to Mexico in 2004. Six days later, Gomez was
arrested at the Mexico-United States border and charged with
the instant offense of attempted reentry. Following a non-jury
trial, Gomez was found guilty and sentenced to 84 months’
imprisonment with three years of supervised release.
Gomez’s various appellate arguments stem from a sixteen-
level enhancement that the district court applied to his advi-
sory sentencing range under U.S.S.G. § 2L1.2(b)(1)(A),
which requires such an enhancement
[i]f the defendant previously was deported, or unlaw-
fully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug traf-
ficking offense for which the sentence imposed
exceeded 13 months; (ii) a crime of violence;
(iii) a firearms offense; (iv) a child pornogra-
phy offense; (v) a national security or terror-
ism 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
1
The California Code was revised on January 1, 2007, after Gomez was
convicted. The current California Penal Code section 192(c)(3) is materi-
ally different than the version which applied in 2003. We cite to the ver-
sion 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 Cal. Penal Code § 192(c)(3)
(1998).
13494 UNITED STATES v. GOMEZ-LEON
after being convicted of a predicate offense. Id. The district
court found that both Gomez’s drug conviction under Califor-
nia Health & Safety Code section 11379(a) and his conviction
for vehicular manslaughter while intoxicated, without gross
negligence, Cal. Penal 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 with-
out gross negligence, Cal. Penal Code § 192(c)(3), was a fel-
ony “crime of violence”; and (3) he was lawfully deported or
unlawfully remained in the country following either of those
convictions.2
“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, 510 F.3d 1007,
1010 (9th Cir. 2007). We must reverse if the district court
committed a significant procedural error, such as incorrectly
calculating the advisory Guidelines’ sentencing range. Gall v.
United States, 128 S. Ct. 586, 597 (2007); United States v.
Carty, 520 F.3d 984, 991-93 (9th Cir.) (en banc), cert. denied,
128 S. Ct. 2491 (2008).
2
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, 543 U.S. 220, 244
(2005). Consequently, Gomez’s argument is foreclosed.
UNITED STATES v. GOMEZ-LEON 13495
I.
Gomez argues that even if we hold that one of his convic-
tions was a predicate offense under U.S.S.G. § 2L1.2(b), he
was never “lawfully deported” after either of those convic-
tions because his 1999, 2000, and 2004 removals—those that
occurred after one of the predicate convictions—were autho-
rized 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, 486 F.3d
484, 498 (9th Cir. 2007) (en banc), we held that removal by
an immigration officer pursuant to a prior removal order is
lawful. Gomez’s initial removal occurred in 1998, following
a hearing before an immigration judge. He returned to the
United States, committed the crimes of conviction, and was
then removed three additional times, the latest removal occur-
ring in July 2004, following his most recent California con-
viction for vehicular manslaughter while intoxicated without
gross negligence. This removal was performed by an immi-
gration officer, but pursuant to the prior removal order. Con-
sequently, the district court committed no legal error in
relying upon the 2004 removal for purposes of the § 2L1.2(b)
enhancement.
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.
[1] In order to determine if Gomez’s California conviction
was for a “drug trafficking offense,” we must apply the Tay-
lor categorical approach, Taylor v. United States, 495 U.S.
575 (1990), wherein we compare the statutory definition of
13496 UNITED STATES v. GOMEZ-LEON
the underlying offense to the Guidelines definition of a “drug
trafficking offense.” Id. at 599; United States v. Navidad-
Marcos, 367 F.3d 903, 907-08 (9th Cir. 2004). The commen-
tary to § 2L1.2 of the Guidelines defines a “drug trafficking
offense” as “an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or dis-
pensing of a controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt.
1(B)(iv). We have held that the California offense under sec-
tion 11379(a)3 is broader than the Guidelines’ definition of a
“drug trafficking offense” because the California offense
criminalizes simple transportation of a drug without intent to
distribute it. Navidad-Marcos, 367 F.3d at 907-08; United
States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.
2007). Consequently, we cannot say that all convictions under
section 11379(a) qualify for the enhancement.
[2] Under the Taylor modified categorical approach, when
we encounter a statute that is categorically overbroad as com-
pared to the Guidelines definition, we may make a limited
inquiry into the facts of the underlying conviction to deter-
mine whether the “conviction was based on all of the ele-
ments of a qualifying predicate offense.” Navidad-Marcos,
367 F.3d at 908. Our inquiry under the modified categorical
approach is limited to the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit fac-
tual finding by the trial judge to which the defendant assented
to determine if a prior conviction qualifies for an enhance-
ment.” Almazan-Becerra, 482 F.3d at 1088 (internal quotation
marks omitted). While we may not rely solely upon the charg-
3
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.”
UNITED STATES v. GOMEZ-LEON 13497
ing papers, id., we may rely upon them in conjunction with a
defendant’s written plea agreement or a transcript of the plea
to show that the defendant pled guilty to facts covered by the
Guidelines offense, United States v. Corona-Sanchez, 291
F.3d 1201, 1211 (9th Cir. 2002) (en banc).
[3] In this case, the district court relied upon the criminal
complaint and the defendant’s written plea of guilty. Accord-
ing 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 sub-
stances.” In other words, Gomez distributed a controlled sub-
stance 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)(1)(A) cmts. 1(B)(iv) & 5. Consequently, the dis-
trict court did not err in finding that Gomez’s conviction
under California Health & Safety Code section 11379(a) was
a “drug trafficking offense.”
B.
[4] The more difficult question presented by using the sec-
tion 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, 319 F.3d 456, 458 (9th Cir. 2003) (inter-
preting U.S.S.G. § 2L1.2 cmt. 1(A)(iv) (2001), having materi-
ally the same text as current § 4A1.2(b)(2), which is
incorporated by reference into current § 2L1.2, see § 2L1.2
cmt. 1(B)(vii)). It does include both a sentence originally
imposed, but not suspended, and any additional sentence of
incarceration ordered as a result of a probation violation. Id.
It also includes a term of incarceration imposed as a condition
of probation. United States v. Hernandez-Valdovinos, 352
13498 UNITED STATES v. GOMEZ-LEON
F.3d 1243, 1248-49 (9th Cir. 2003) (also interpreting prior
version of the Guidelines). Moreover, we ignore any good
behavior credits or other non-judicial adjustments earned by
the defendant. United States v. Benitez-Perez, 367 F.3d 1200,
1204 (9th Cir. 2004).
[5] 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 cus-
tody of the county sheriff. At the time the conditions of proba-
tion 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
sentence included the shorter one. The state trial court records
provided on appeal are unclear on this point, but they do not
contradict Gomez’s contention. See Cal. Penal Code § 19.2(providing that a California trial court cannot impose jail time
greater than 365 days in the custody of the county sheriff as
a term of probation); but see People v. Johnson, 147 Cal.
Rptr. 55, 58 (Ct. App. 1978) (providing that a California trial
court can impose up to 365 days of jail time after a probation
violation, if the defendant consents, even if the jail time
imposed as an original condition of probation was 365 days).
The record contains no evidence that Gomez consented to
receiving a total period of jail time in excess of 365 days.
Without such consent, the 365 days would have had to
include the prior 127 days.
[6] Under the modified categorical approach, the govern-
ment bears the burden to demonstrate that the prior conviction
UNITED STATES v. GOMEZ-LEON 13499
was a qualifying offense—here, that the sentence exceeded
thirteen months. See United States v. Kelly, 422 F.3d 889, 895
(9th Cir. 2005) (“Under the modified categorical approach,
the government has the burden to establish clearly and
unequivocally the conviction was based on all of the elements
of a qualifying predicate offense.” (internal quotation marks
omitted)). Because the record does not demonstrate that
Gomez’s sentence exceeded thirteen months, the district court
clearly erred in applying the enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(I) on the basis of Gomez’s drug trafficking
offense.
III.
A.
[7] Alternatively, the district court found that Gomez’s Cal-
ifornia conviction for vehicular manslaughter while intoxi-
cated without gross negligence, Cal. Penal Code § 192(c)(3)
(1998), was also a predicate offense under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) 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. Cal. Penal Code § 192. The
district court found that Gomez was convicted under subsec-
tion (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.
13500 UNITED STATES v. GOMEZ-LEON
Id. The current version of the statute, Cal. Penal 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,4 2) while also committing another misdemeanor
or infraction or an otherwise lawful act that might cause death,5
3) in a negligent manner, 4) where the negligent conduct
causes the death of another person. See Judicial Council of
California Criminal Jury Instructions, No. 591 (2007) (inter-
preting revised version of offense found in Cal. Penal Code
§ 191.5 (2007)); 6-142 California Criminal Defense Practice
§ 142.02 (2007). The negligence requirement is met if the
defendant commits ordinary (tort) negligence. See People v.
Bussel, 118 Cal. Rptr. 2d 159, 163 (App. Dep’t Super. Ct.
4
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 alco-
hol or drugs or having an unlawful blood alcohol content, concurrent with
neglecting a lawful duty or doing an act forbidden by law where such con-
duct causes bodily injury to another person) of the California Vehicle
Code.
5
The requirement of a lawful, but negligent, act that might cause death
could be interpreted as requiring a higher degree of culpability than ordi-
nary 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.), 557 P.2d 514, 521 (Cal. 1976); People v. Bussel, 118 Cal.
Rptr. 2d 159, 163 (App. Dep’t Super. Ct. 2002). Moreover, if California
Penal Code section 191.5(a) (2007) (vehicular manslaughter while intoxi-
cated with gross negligence) had been read to require criminal negligence,
it would have been redundant of section 191.5(b) (vehicular manslaughter
while intoxicated without gross negligence, Cal. Penal Code 191.5(b)).
See Judicial Council of California Criminal Jury Instructions, No. 591
(2007) (defining gross negligence to require acts that create high risk of
death or serious bodily injury).
UNITED STATES v. GOMEZ-LEON 13501
2002) (phrase “without gross negligence” means that only
ordinary negligence is required); Cal. Criminal Jury Inst., No.
591.
Gomez argues that because Cal. Penal 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 vio-
lence.”
B.
Confusingly, the phrase “crime of violence” is used to iden-
tify predicate offenses in a wide variety of contexts,6 but there
are at least four different ways to determine whether an
offense constitutes a “crime of violence.”7 See 18 U.S.C. § 16;
U.S.S.G. § 2L1.2 cmt. 1(B)(iii); U.S.S.G. § 4B1.2. What may
be a predicate offense under one approach is not necessarily
6
See 18 U.S.C. § 924(c)(3) (establishing statutory minimums for firearm
offenses involving crimes of violence); 8 U.S.C. § 1227(a)(2)(E)(i) (autho-
rizing deportation of alien who commits domestic crime of violence); 8
U.S.C. § 1101(a)(43)(F) (crimes of violence constitute “aggravated felo-
nies” for immigration purposes); 18 U.S.C. § 3181 (authorizing extradition
of persons who have commited 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)(1)(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. § 4B1.2(a) (classifying the defendant
as a career offender based upon having committed crimes of violence); see
also Leocal v. Ashcroft, 543 U.S. 1, 6-7 & n.4 (2004) (collecting uses of
phrase as defined in the Comprehensive Crime Control Act of 1984).
7
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 Guide-
lines, there are different meanings of the phrase. Compare U.S.S.G.
§ 4B1.2 with § 2L1.2 cmt. 1(B)(iii).
13502 UNITED STATES v. GOMEZ-LEON
a predicate offense under another approach. Generally, the
statute or guideline provision being applied specifies which
approach should be used in the context of that statute or
guideline provision. When the phrase is used in a statutory
context, the statutory definition adopted as part of the Com-
prehensive Crime Control Act of 1984 generally applies. 18
U.S.C. § 16.
[8] Section 16 uses a double-barreled approach, defining
the phrase in two ways, disjunctively. Thus, a “crime of vio-
lence” 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, 543 U.S. 1, 10 (2004) (explaining that §16(b)
“sweeps more broadly than” the element test because it
encompasses offenses where a person merely disregards a risk
that physical force will be used in commission of the offense).
Therefore, we will refer to § 16(b) as the substantial risk/use
of force test. Both tests require that force be “used” “against
the person or property of another.” § 16. In Leocal, the
Supreme Court reasoned that the words “used” “against the
person or property of another” mean the infliction of force
must be volitional in order to qualify as a predicate offense,
requiring proof of “a higher degree of intent than negligent or
merely accidental conduct.” 543 U.S. at 9-11 (holding that
alien’s DUI conviction was not a “crime of violence” under
UNITED STATES v. GOMEZ-LEON 13503
§ 16 because commission of the crime did not require voli-
tional use of force or risk of volitional use of force). We inter-
preted Leocal in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121(9th Cir. 2006) (en banc), to further exclude from § 16(a)
offenses that may be “committed through the reckless, or
grossly negligent, use of force.” See Fernandez-Ruiz, 466
F.3d at 1132 (holding that Arizona assault statute that may be
committed by recklessly causing injury to a person was not a
“crime of violence”). As a result, only those offenses that
involve “the intentional use of force against the person or
property of another” become predicate offenses under the ele-
ment test. Id. We later held that the same requirement applies
to “crimes of violence” captured by the substantial risk/use of
force test. Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084
(9th Cir. 2007). The effect of our holdings is that in order to
be a predicate offense under either 18 U.S.C. § 16 approach,
the underlying offense must require proof of an intentional
use of force or a substantial risk that force will be intention-
ally used during its commission.
[9] The applicable context in this case, section 2L1.2(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.
§ 2L1.2 cmt. 1(B)(iii) (paragraph spacing added for conve-
nience). The second phrase of the § 2L1.2(b) definition is
13504 UNITED STATES v. GOMEZ-LEON
materially the same as the element test from 18 U.S.C. § 16(a)8
and is subject to the same construction, which means that it
covers only convictions for an offense that requires proof of
the intentional use of force. See United States v. Narvaez-
Gomez, 489 F.3d 970, 976-77 (9th Cir. 2007) (applying
Fernandez-Ruiz to the element test in § 2L1.2). The first
phrase of the definition describes our third approach by listing
several enumerated offenses that constitute “crimes of vio-
lence” per se. We refer to this approach as the enumerated
offenses approach.
[10] Notably absent from the § 2L1.2(b) definition is the
substantial risk/use of force test. Its absence is explainable by
considering the history of the § 2L1.2 Guidelines provision.
Prior to the 2001 amendments to the Guidelines, § 2L1.2(b)
defined a “crime of violence” by reference to the definition
contained in § 4B1.2, the career offender provision of the
Guidelines. See U.S.S.G. App. C Vol. II, amend. 632 (2003).
The career offender definition for a “crime of violence” con-
tains the element test and our fourth approach, which we will
call the serious risk of injury test. § 4B1.2. Under the serious
risk of injury test, an offense is a “crime of violence” if it
is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of phys-
ical 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
8
However, it limits predicate offenses to those that contain as an ele-
ment 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. 1(B)(iii).
UNITED STATES v. GOMEZ-LEON 13505
listed offenses, which precede the remainder clause, “illus-
trate 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 “pur-
poseful, violent, and aggressive conduct.” See Begay v.
United States, 128 S. Ct. 1581, 1587 (2008) (holding that fel-
ony DUI is not a violent felony under the serious risk of
injury test because it was not purposeful, violent, and aggres-
sive).
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,
490 F.3d 1142, 1148 (9th Cir. 2007); see Leocal, 543 U.S. at10 n.7; see also United States v. McCall, 439 F.3d 967, 971
(8th Cir. 2006) (en banc) (holding that felony DUI satisfies
the serious risk of injury test), recognized as overruled,
United States v. Comstock, 531 F.3d 667, 679 (8th Cir. 2008);
United States v. Begay, 470 F.3d 964, 971 (10th Cir. 2006)
(following McCall), rev’d, 128 S. Ct. 1581 (2008). Since
then, however, the Supreme Court decided Begay, in which it
held that the serious risk of injury test includes only offenses
that involve “purposeful, violent, and aggressive” conduct.
Following Begay, it is unclear whether there is any meaning-
ful difference between the two risk-based approaches, but we
need not decide that issue here.
In 2001 the commentary to U.S.S.G. § 2L1.2 was amended
to create the current definition of a “crime of violence,” effec-
tively severing the § 2L1.2 definition from the § 4B1.2 defini-
tion and removing altogether the serious risk of injury test
from § 2L1.2. See U.S.S.G. App. C Vol. II, amend. 632
(2001). This amendment was enacted in order to provide a
13506 UNITED STATES v. GOMEZ-LEON
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 ele-
ment the intentional use of force. Neither risk-based test is a
basis for a sixteen-level enhancement. Rather, offenses satis-
fying the substantial risk/use of force test warrant only an
eight-level enhancement under the aggravated felony provi-
sion of § 2L1.2(b)(1)(C).9 Offenses that satisfy only the seri-
ous risk of injury test then fall into the remainder “any other
felony” provision of U.S.S.G. § 2L1.2(1)(D), which warrants
only a four-level enhancement.
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, 337 F.3d
1148, 1152 (9th Cir. 2003) (noting that “extortionate exten-
sion of credit and burglary” do not entail use of force but do
involve risk that force may be used during their commission).
Thus, when we consider whether a crime of conviction falls
within the list of enumerated offenses, we do so without
regard for whether those offenses involve the “use, attempted
use, or threatened use of physical force against the person of
another.” See id. Consequently, all convictions for offenses
which constitute “murder, manslaughter, kidnapping, aggra-
vated assault, forcible sex offenses, statutory rape, sexual
9
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).
UNITED STATES v. GOMEZ-LEON 13507
abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, [or] burglary of a dwelling” are treated as
“crimes of violence” for purposes of the sixteen-level
enhancement. U.S.S.G. § 2L1.2 cmt. 1(B)(iii). Moreover,
since the enumerated offenses approach does not require us to
apply either the element test or the substantial risk/use of
force test, the underlying conviction need not be for an
offense that involves the intentional use of force; Leocal does
not apply.
C.
[11] 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 enu-
merated 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-
vant in the context of U.S.S.G. § 2L1.2(b), which defines a
“crime of violence” using the element test and an enumerated
offenses approach. The government concedes that the element
test cannot justify the enhancement here because California
Penal Code section 192(c)(3) (1998) does not involve an “in-
tentional use of force.”10 We reached the same conclusion
when we analyzed a current version of the greater California
offense of vehicular manslaughter while intoxicated with
gross negligence. See Lara-Cazares v. Gonzales, 408 F.3d
1217, 1221 (9th Cir. 2005) (holding that offense met neither
element test nor substantial risk/use of force test in context of
review of decision of the Board of Immigration Appeals find-
10
The government concedes that a conviction for vehicular manslaugh-
ter 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)(1)(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, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc).
13508 UNITED STATES v. GOMEZ-LEON
ing petitioner removable for having committed a “crime of
violence”).
[12] 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, 937
F.2d 1369, 1371-72 (9th Cir. 1990), where we held that a con-
viction in California under an even older version of the vehic-
ular manslaughter while intoxicated without gross negligence
statute, Cal. Penal Code § 192.3 (1970), was a “violent felo-
ny” under the serious risk of injury test in the context of man-
datory minimum sentencing under the Armed Career Criminal
Act, 18 U.S.C. § 924(e). This was error because the serious
risk of injury test does not apply in the context of U.S.S.G.
§ 2L1.2(b). In addition to citing O’Neal, the district court
applied the enumerated offenses approach that is authorized
by U.S.S.G. § 2L1.2 cmt. 1(B)(iii), finding that Gomez’s con-
viction for vehicular manslaughter while intoxicated without
gross negligence was one of “manslaughter” and that it, there-
fore, fell within the enumerated offenses.
[13] 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 mean-
ing of [the] term.” Taylor v. United States, 495 U.S. 575, 596
(1990); see also United States v. Gomez-Mendez, 486 F.3d
599, 602 (9th Cir.) (asking whether state crime fell within “or-
dinary, contemporary, and common meaning” of “statutory
rape,” enumerated as a “crime of violence” under
§ 2L1.2(b)(1)(ii) (internal quotation marks omitted)), cert.
denied, 128 S. Ct. 545 (2007). Thus, an enumerated offense
must have some “uniform definition independent of the labels
employed by the various States’ criminal codes.” Taylor, 495
U.S. at 592. When the enumerated offense is a traditional
crime, such as manslaughter, we derive its uniform meaning
UNITED STATES v. GOMEZ-LEON 13509
from the generic, contemporary meaning employed by most
states, guided by scholarly commentary. United States v.
Bolanos-Hernandez, 492 F.3d 1140, 1143 (9th Cir.), cert.
denied, 128 S. Ct. 731 (2007).
1.
Contemporary Meaning of Manslaughter
Historically, the common law did not distinguish between
murder and manslaughter. 2 Wayne R. LaFave, Substantive
Criminal Law § 15.4 (2d ed. 2007). Eventually, however, two
distinct crimes emerged. Manslaughter was commonly called
the “unlawful killing of a human being without malice afore-
thought.” Id. § 15.1. “[M]anslaughter itself was subdivided
into two branches—voluntary manslaughter (intended homi-
cide in a heat of passion upon adequate provocation) and
involuntary manslaughter (unintended homicide under certain
circumstance).” Id. § 15.4. According to LaFave, it is the gen-
eral trend for involuntary manslaughter to require the mens
rea element of recklessness. Even though some states have
held that involuntary manslaughter can be established by
proof of ordinary negligence, “the great weight of authority
requires something more.”11 Id. § 15.4(a).
In United States v. Dominguez-Ochoa, 386 F.3d 639, 644-
46 (5th Cir. 2004), the Fifth Circuit agreed with LaFave and
held that the modern view of manslaughter required proof of
recklessness. That case presented the reverse of the question
11
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 defen-
dant 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 negli-
gence or criminal negligence requires something more than ordinary negli-
gence, such as one, and in some cases both, of the additional elements. Id.
§ 5.4.
13510 UNITED STATES v. GOMEZ-LEON
presented here. The Texas offense being reviewed there was
called negligent homicide, but the government argued it was
equivalent to manslaughter and was thus a “crime of vio-
lence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Id. The mens rea
element to that statute was criminal negligence, a degree of
culpability higher than ordinary negligence, but lower than
recklessness. The Fifth Circuit reversed the district court’s
application of the sixteen-level sentencing enhancement,
holding that a prior conviction for negligent homicide that
required only criminal negligence was not manslaughter. Id.
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).
[14] Like California, most states have several homicide
offenses, including an involuntary manslaughter statute. The
Fifth Circuit’s study revealed that at least twenty state crimi-
nal codes require proof of recklessness to convict a person for
the crime of involuntary manslaughter. Dominguez-Ochoa,
386 F.3d at 646. Thus, the modern view appears to be that
recklessness is an element of contemporary manslaughter. 2
LaFave, supra, § 15.4(a). However, at least fifteen states have
a manslaughter statute criminalizing conduct that falls short of
recklessness: twelve of them permit punishment when the
defendant has a mens rea that is akin to criminal or gross negli-
gence,12 but only three states permit punishment on proof of
12
Me. Rev. Stat. Ann. tit. 17, § 203 (offense called “manslaughter,” but
requires recklessness or criminal negligence); Md. Code Ann. Crim. Law
UNITED STATES v. GOMEZ-LEON 13511
only ordinary negligence.13 When we look beyond statutes
that use the term “manslaughter,” we see that another thirty-
four states have created homicide statutes that require a mens
rea of less than recklessness, but call such offenses “negligent
homicide” or something similar.14 Even when we expand the
§ 2-209 (offense called “manslaughter by vehicle or vessel,” but requires
gross negligence); Miss. Code Ann. § 97-3-27 (offense called “man-
slaughter” but requires culpable negligence which is more than ordinary
negligence as interpreted by Johnson v. State, 86 So. 863 (Miss. 1921));
Mo. Rev. Stat. § 565.024 (offense called “involuntary manslaughter” but
requires criminal negligence or recklessness); N.M. Stat. Ann. § 30-2-3(offense called “involuntary manslaughter” but requires criminal negli-
gence); N.C. Gen. Stat. Ann. § 14-18 (offense called “manslaughter,” but
requires culpable negligence, not ordinary negligence, as interpreted by
State v. Davis, 311 S.E.2d 311 (N.C. 1984)); Okla. Stat. Ann. tit. 21 § 716
(offense called “manslaughter in the second degree,” but requires culpable
negligence); 18 Pa. Cons. Stat. § 2504 (offense called “involuntary man-
slaughter” but requires gross negligence); R.I. Gen. Laws § 11-23-3
(offense called “involuntary manslaughter” but requires criminal negli-
gence as interpreted by State v. Ortiz, 824 A.2d 473, 485-86 (R.I. 2003));
S.C. Code Ann. § 16-3-60 (offense called “involuntary manslaughter,” but
requires criminal negligence); Vt. Stat. Ann. tit. 13, § 2304 (offense called
“manslaughter,” but requires criminal negligence as interpreted by State
v. Stainslaw, 573 A.2d 286, 291 (Vt. 1990)); Wash. Rev. Code
§ 9A.32.070 (offense called “manslaughter in the second degree” but
requires criminal negligence).
13
Idaho Code Ann. § 18-4006 (offense called “manslaughter” and
requires only ordinary negligence as interpreted by Haxforth v. State, 786
P.2d 580, 581 (Idaho Ct. App. 1990)); Nev. Rev. Stat. Ann. § 484.3775(offense called “vehicular manslaughter” and requires only ordinary negli-
gence); Va. Code Ann. § 18.2-36.1 (offense called “involuntary man-
slaughter” and only requires ordinary negligence if driver is under the
influence of drugs or alcohol, as interpreted by Pollard v. Commonwealth,
455 S.E.2d 283, 286 (Va. 1995)).
14
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, 816 So. 2d 98, 107 (Ala. 2001)); Alaska Stat.
§ 11.41.130 (offense called “criminally negligent homicide” and requires
criminal negligence); Ariz. Rev. Stat. Ann. § 13-1102 (offense called
“negligent homicide” and requires criminal negligence); Ark. Code Ann.
13512 UNITED STATES v. GOMEZ-LEON
scope of our research to include these “negligent homicide”
statutes, we see only eight more states that permit conviction
when the defendant possesses a mens rea of only ordinary negli-
gence.15 We conclude that it is rare for a state to criminalize
§ 5-10-105(b)(1) (offense called “negligent homicide” and requires negli-
gence that is a “gross deviation” from standard of care as interpreted by
Hunter v. State, 19 S.W.3d 607, 667-68 (Ark. 2000)); Colo. Rev. Stat.
§ 18-3-105 (offense called “criminally negligent homicide” and requires
criminal negligence); Conn. Gen. Stat. § 53a-58 (offense called “crimi-
nally negligent homicide” and requires criminal negligence); Del. Code
Ann. tit. 11, § 631 (offense called “criminally negligent homicide” and
requires criminal negligence); Ga. Code Ann. § 40-6-393 (offense called
“homicide by vehicle” and requires criminal negligence for violation in
the second degree as interpreted by Conyers v. State, 397 S.E.2d 423, 428
(Ga. 1990)); 720 Ill. Comp. Stat. 5/9-3 (offense called “reckless homicide”
and requires recklessness, but recklessness is mandatorily presumed when
driver causes vehicle to become airborne); Kan. Stat. Ann. § 21-3405(offense called “vehicular homicide” and construed by State v. Gordon,
549 P.2d 886, 896 (Kan. 1976), to require more than simple negligence);
Ky. Rev. Stat. Ann. § 507.040 cmt. (manslaughter no longer allowed “on
the basis of ordinary negligence”); La. Rev. Stat. Ann. § 14:32 (offense
called “negligent homicide” and requires criminal negligence); Mont.
Code Ann. § 45-5-104 cmt. (offense called “negligent homicide” and
requires “gross deviation” from standard of care); N.H. Rev. Stat. Ann.
§ 630:3 (offense called “negligent homicide” and requires criminal negli-
gence); N.Y. Penal Law § 125.10 (offense called “criminally negligent
homicide” and requires criminal negligence); N.D. Cent. Code § 12.1-16-
03 (offense called “negligent homicide” and requires “gross deviation
from acceptable standards of conduct” as defined by N.D. Cent. Code
§ 12.1-02-02); Ohio Rev. Code Ann. § 2903.06 (“vehicular manslaughter”
contained in statute title, but referred to as vehicular homicide within stat-
ute, and requires more than ordinary negligence as construed by State v.
Self, 679 N.E.2d 1173, 1177 (Ohio Ct. App. 1996)); Or. Rev. Stat.
§ 163.145 (offense called “criminally negligent homicide” and requires
criminal negligence); Tenn. Code Ann. § 39-13-212 (offense called “crim-
inally negligent homicide” and requires criminal negligence); Tex. Penal
Code Ann. § 19.05 (offense called “criminally negligent homicide” and
requires criminal negligence); Utah Code Ann. § 76-5-206 (offense called
“negligent homicide” and requires criminal negligence); Wis. Stat.
§ 940.10 (offense called “negligent homicide” and requires criminal negli-
gence).
15
D.C. Code § 50-2203.01 (offense called “negligent homicide,” and
requires only ordinary negligence as interpreted by Butts v. United States,
UNITED STATES v. GOMEZ-LEON 13513
ordinary homicide where the defendant’s mens rea is only
ordinary negligence.16 Moreover, only a handful of those
states classify such offenses as “manslaughter.”17
[15] Of course, Gomez was not convicted of ordinary
involuntary or vehicular manslaughter, as California defines
it; he was convicted of vehicular manslaughter while intoxi-
cated, 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 punish-
ment 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.
[16] We identify, however, only five states that have stat-
utes similar to California’s, requiring proof of only ordinary
negligence18 or less19 and defining the offense as a type of
822 A.2d 407, 416 (D.C. 2003)); Haw. Rev. Stat. § 707-704 (offense cal-
led “negligent homicide in the third degree” and requires only ordinary
negligence); Mass. Gen. Laws Ann. ch. 90, § 24G (offense called “homi-
cide by motor vehicle” and requires only ordinary negligence as inter-
preted by Commonwealth v. Carlson, 849 N.E.2d 790, 795 (Mass. 2006),
and distinguishes involuntary manslaughter as much more serious); Mich.
Comp. Laws § 750.324 (offense called “negligent homicide” and requires
only ordinary negligence); S.D. Codified Laws § 22-16-41 (offense called
“vehicular homicide” and requires only ordinary negligence as interpreted
by State v. Two Bulls, 547 N.W.2d 764, 766 (S.D. 1996)).
16
Supra notes 13 (manslaughter statutes that require mens rea of ordi-
nary negligence) and 15 (negligent homicide statutes that require same).
17
Supra note 13.
18
Va. Code Ann. § 18.2-36.1 (offense called “involuntary manslaugh-
ter” and only requires ordinary negligence if driver is under the influence
13514 UNITED STATES v. GOMEZ-LEON
manslaughter. Two additional states punish homicide where
the defendant had a mens rea of ordinary negligence, but both
classify the offense as something other than manslaughter.20
Eleven more states have drunk driving homicide statutes that
require no mens rea at all or presume the necessary mens rea
exists when the driver of a vehicle is intoxicated; none of
these states classifies the offense as manslaughter.21 Even
of drugs or alcohol, as interpreted by Pollard v. Commonwealth, 455
S.E.2d 283, 286 (Va. 1995)).
19
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 Commentary” found at N.Y. Penal Law ch. 40, pt. Three,
2005 amends., under the subheading “vehicular manslaughter”); Conn.
Gen. Stat. § 53a-56b (offense called “manslaughter in the second degree
with a motor vehicle” and does not require proof of mens rea when driver
is intoxicated as interpreted by State v. Kristy, 528 A.2d 390, 482-83
(Conn. Ct. App. 1987)); Tex. Penal Code Ann. § 49.08 (offense called “in-
toxication manslaughter” and requires no culpable mental state if driver
was operating motor vehicle while intoxicated); Fla. Stat. § 316.193(3)
(offense called “DUI manslaughter” and requires no proof of mens rea as
interpreted by State v. Hubbard, 751 So. 2d 552, 562-64 (Fla. 1999)).
20
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).
21
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 inter-
preted by State v. Ring, 447 N.W.2d 908, 910-12 (Neb. 1989) (per
curiam)); Iowa Code § 707.6A (offense called “homicide or serious injury
by vehicle” and provides no mental state for convicting driver of vehicle
who is intoxicated at time of accident); Wis. Stat. Ann. § 940-09 (offense
called “homicide by intoxicated use of vehicle or firearm” and requires
only driving of vehicle while intoxicated); N.H. Rev. Stat. Ann. § 630:3.II
(offense called “negligent homicide” where negligence is per se shown by
driving under the influence which causes death); La. Rev. Stat. Ann.
§ 14:32.1 (offense called “vehicular homicide” and no negligence need be
proven if driver was intoxicated as interpreted by State v. Taylor, 463 So.
UNITED STATES v. GOMEZ-LEON 13515
among three additional states criminalizing homicide by
drunk driving that require proof of a culpable mental state
greater than ordinary negligence, only one defines the offense
as manslaughter.22 It appears there is a growing trend of at
least twenty states23 that punish drunk driving homicides when
the defendant possesses no culpable mental state or his mens
rea is only ordinary negligence. But it is still exceedingly rare
for such offenses to be classified as manslaughter.24 Instead,
it appears more common for state legislatures to create new
offenses, such as vehicular homicide, to cover such conduct.
See 2 LaFave, supra, § 15.4(e). This comports with the gen-
eral trend, noted by LaFave and evident in the Model Penal
Code, that the notion of manslaughter is reserved for conduct
2d 1274, 1275 (La. 1985)); Colo. Rev. Stat. § 18-3-106 (offense of “vehic-
ular homicide” is a strict liability crime if death occurs as a proximate
cause of driver being under influence of drugs and/or alcohol); Wis. Stat.
Ann. § 940.09 (offense called “homicide by intoxicated use of a vehicle”
and applies negligence per se when driving under the influence); Wyo.
Stat. Ann. § 6-2-106 (offense called “aggravated homicide by vehicle” and
requires only that person was intoxicated as predecessor statute was inter-
preted by in Armijo v. State, 678 P.2d 864, 869-70 (Wyo. 1984)); Utah
Code Ann. § 76-5-207(2)(a) (offense called “automobile homicide, a third
degree felony” and requires proof of intoxication and simple negligence);
N.J. Stat. Ann. § 2C:11-5 (offense called “vehicular homicide” and
requires recklessness, but recklessness presumed by virtue of intoxica-
tion).
22
Utah Code Ann. § 76-5-207(3)(a) (offense called “automobile homi-
cide, 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 intoxi-
cated as interpreted by Demmond v. State, 333 N.E.2d 922, 924 (Ind. Ct.
App. 1975)).
23
Supra notes 18-21 (collecting statutes that require no proof of mens
rea or proof of ordinary negligence to punish drunk driving homicides).
24
Supra note 18-19 (only five states besides California).
13516 UNITED STATES v. GOMEZ-LEON
that includes a more culpable mental state than mere negli-
gence. Id. § 15.4(a).
2.
Guidelines Treatment of Manslaughter
[17] In its brief, the government argues that even if the con-
temporary meaning of manslaughter includes a mens rea that
is greater than ordinary negligence, the drafters of the Sen-
tencing Guidelines clearly intended for the term manslaughter
to include Gomez’s conviction. See, e.g., Dominguez-Ochoa,
386 F.3d at 647 (Pickering J., dissenting). We conclude the
contrary is true; when the Guidelines have reason to distin-
guish between degrees of involuntary manslaughter, they rec-
ognize only two types: criminally negligent manslaughter and
reckless manslaughter. See U.S.S.G. § 2A1.4 (providing dis-
tinct base offense levels for federal crime of involuntary man-
slaughter according to whether the defendant possessed mens
rea of recklessness or criminal negligence); see also
Dominguez-Ochoa, 386 F.3d at 643-44 (holding that § 2A1.4
should not be read as expression of drafters’ intent to define
manslaughter because drafters were merely creating base
offense levels for federal crime of involuntary manslaughter).
Consequently, even if we were to look to § 2A1.4 for guid-
ance in this case, it would only strengthen our conclusion that
a homicide which requires proof of only ordinary negligence
is not manslaughter.
[18] If the drafters of § 2L1.2 cmt. 1(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 amend-
ments 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
UNITED STATES v. GOMEZ-LEON 13517
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.
[19] 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 enumer-
ated in U.S.S.G. § 2L1.2 cmt. 1(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)(1)(A)(ii).
IV.
[20] Neither Gomez’s conviction for a “drug trafficking
offense” nor his conviction under California Penal Code sec-
tion 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 court for re-sentencing in a manner consistent with our
opinion.
REVERSED and REMANDED.
O’SCANNLAIN, Circuit Judge, concurring in part and dis-
senting 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
13518 UNITED STATES v. GOMEZ-LEON
months, thus excluding him from a sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(A).
However, notwithstanding the government’s concession to
the contrary, I respectfully disagree with the court’s articula-
tion 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 vio-
lence” 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. 1(B)(iii) of the Guide-
lines unequivocally lists manslaughter as a “[c]rime of vio-
lence.” “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 includ-
ed.’ ” United States v. Dominguez-Ochoa, 386 F.3d 639, 648
(5th Cir. 2004) (Pickering, J., dissenting).
The government’s concession that Gomez-Leon’s convic-
tion 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, 466 F.3d 1121 (9th Cir. 2006) (en banc).
Fernandez-Ruiz, however, was not a sentencing case, nor did
it involve a construction of the term “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Rather, there we construed the
meaning of “crime of violence” under 18 U.S.C. § 16(a), see
Fernandez-Ruiz, 466 F.3d at 1132, which does not include a
similar provision listing enumerated qualifying offenses.
Accordingly, Fernandez-Ruiz is irrelevant to an assessment of
whether Gomez-Leon’s conviction under Cal. Penal Code
§ 192(c)(3) (1998) constitutes an enumerated “crime of vio-
lence” under the Sentencing Guidelines.
Because the Guidelines writers did not make a distinction
between types of manslaughter in U.S.S.G. § 2L1.2 cmt
UNITED STATES v. GOMEZ-LEON 13519
1(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.