and Submitted December 16, 2016 San Francisco, California
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.
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
Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and
Leslie E. Kobayashi, [*] District Judge.
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.
KOBAYASHI, District Judge:
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"). 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.
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.
challenges the 16-level enhancement, arguing that California
Penal Code section 192(a) is not categorically a crime of
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). The definition of "crime of
violence" includes an enumerated list of crimes,
including "manslaughter." Id. § 2L1.2
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.
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." 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.
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. According to
Rivera-Muniz, California's inclusion of imperfect
self-defense within the definition of voluntary manslaughter
makes that offense broader than the ...