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United States v. Rivera-Muniz

United States Court of Appeals, Ninth Circuit

April 20, 2017

United States of America, Plaintiff-Appellee,
v.
Hugo Salvador Rivera-Muniz, AKA Hugo Salvador Rivera, AKA Hugo Salvadore Rivera, Defendant-Appellant.

          Argued and Submitted December 16, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Arizona, D.C. No. 4:14-cr-01930-JGZ -LAB-1 Jennifer G. Zipps, District Judge, Presiding

          Stephanie Bond (argued), The Law Offices of Stephanie K. Bond P.C., Tucson, Arizona, for Defendant-Appellant.

          Lauren G. LaBuff (argued), and Christina M. Cabanillas, Assistant United States Attorneys; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

          Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and Leslie E. Kobayashi, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         Affirming a sentence, the panel held that Cal. Penal Code § 192(a) matches the generic definition of "manslaughter" and is therefore categorically a crime of violence under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.

          OPINION

          KOBAYASHI, District Judge:

         This appeal questions whether a conviction for manslaughter under California Penal Code section 192(a) is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines").[1] We review the district court's determination that Rivera-Muniz's prior conviction constitutes a crime of violence de novo. United States v. Marcia-Acosta, 780 F.3d 1244, 1248 (9th Cir. 2015). We affirm.

         I

         On July 8, 2015, Rivera-Muniz pleaded guilty to reentering the United States without authorization after having been deported or removed in violation of 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2). At the sentencing hearing, the district court considered Rivera-Muniz's previous conviction for voluntary manslaughter under California Penal Code section 192(a) and concluded that it was an enumerated crime of violence that triggered a 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). However, the district court also applied a 7-level downward variance, thus sentencing Rivera-Muniz to twenty-seven months of imprisonment and three years of supervised release.

         Rivera-Muniz challenges the 16-level enhancement, arguing that California Penal Code section 192(a) is not categorically a crime of violence.

         II

         The relevant Sentencing Guideline provides a base level offense of 8, and a 16-level increase if the defendant was previously deported after a conviction for, inter alia, a "crime of violence." U.S.S.G. § 2L1.2(a)-(b).[2] The definition of "crime of violence" includes an enumerated list of crimes, including "manslaughter."[3] Id. § 2L1.2 cmt. n.1(B)(iii).

         "The fact that manslaughter is specifically enumerated in the Sentencing Guidelines' definition strongly indicates that the offense of manslaughter qualifies as a 'crime of violence' under § 2L1.2(b)(1)(A)(ii)." United States v. Mendoza-Padilla, 833 F.3d 1156, 1158 (9th Cir. 2016). However, "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 meaning of [the] term.'" United States v. Gomez-Leon, 545 F.3d 777, 790 (9th Cir. 2008) (alteration in original) (quoting Taylor v. United States, 495 U.S. 575, 596 (1990)). Under this analysis-the categorical approach-the court examines "only the fact of conviction and the statutory definition of the prior offense." United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016) (citation and internal quotation marks omitted). Moreover, "we do not look to the specific conduct that was the basis of a defendant's state convictions." United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).[4]

         The statute at issue here, California Penal Code section 192(a), defines voluntary manslaughter as "the unlawful killing of a human being without malice . . . upon a sudden quarrel or heat of passion."[5] Malice "is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature, " and "implied . . . when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." Cal. Penal Code § 188.

         III

         On appeal, Rivera-Muniz contends that California Penal Code section 192(a) is not a categorical crime of violence under U.S.S.G. § 2L1.2 for two reasons. First, Rivera-Muniz argues that, because we have held that a conviction under section 192(a) was not a crime of violence under 18 U.S.C. § 16, see Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1306-07 (9th Cir. 2015), the district court should have applied the same analysis to crimes of violence as defined by U.S.S.G. § 2L1.2. Second, Rivera-Muniz argues that the district court should have considered case law and jury instructions, which make it clear that the California statute allows for a conviction of voluntary manslaughter as a lesser-included offense of murder when a defendant acts in unreasonable or imperfect self-defense.[6] According to Rivera-Muniz, California's inclusion of imperfect self-defense within the definition of voluntary manslaughter makes that offense broader than the ...


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