[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jeffery Alan Babcock, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.
For JUAN GARCIA-PEREZ, also known as Juan Garcia, also known as Johnny Garcia, also known as Guadalupe Garcia, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.
Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
HIGGINBOTHAM, Circuit Judge
Juan Garcia-Perez was convicted of being illegally in the United States after deportation following commission of an aggravated felony. The district court applied a 16-level increase to the base offense level because it determined Mr. Garcia-Perez's prior manslaughter conviction was a " crime of violence" under Sentencing Guideline § 2L1.2(b)(1)(A). Mr. Garcia-Perez argues that manslaughter as defined by the Florida statute of conviction does not qualify as a crime of violence, and thus the increase was error. We agree, vacate, and remand for resentencing.
Juan Garcia-Perez was brought to the United States as an infant in 1969. In 1996, Mr. Garcia-Perez pled no contest to manslaughter under Florida Statute § 782.07. He was deported and re-entered the United States several times. In 2013, Mr. Garcia-Perez pled guilty without a plea agreement to being an alien unlawfully present in the United States after deportation following an aggravated felony. The probation officer calculated the base offense level as 8 under United States Sentencing Guidelines § 2L1.2(a) (2012) and increased the base level by 16 under § 2L1.2(b)(1)(A)(ii) because she found that the 1996 Florida manslaughter conviction was a " crime of violence." After an acceptance of responsibility adjustment, the final offense level was 21.
Mr. Garcia-Perez objected to the 16-level increase in the PSR on the ground that manslaughter as defined by the Florida statute was not a " crime of violence." At sentencing, defense counsel renewed Mr. Garcia-Perez's objection, but the district court overruled it. The court sentenced Mr. Garcia-Perez to 87 months in prison, the top of the guideline range, noting that it was tempted to depart upwards, but not doing so.
" Generally, this Court reviews the district court's application of the Sentencing Guidelines de novo.... When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only."  In contrast, an argument is preserved when the basis for objection presented below " gave the district court the opportunity to
address" the gravamen of the argument presented on appeal. The " objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction." 
The government argues that Mr. Garcia-Perez has changed his argument on appeal, and that we should review only for plain error. We disagree. On appeal, as below, Mr. Garcia-Perez argues that the 16-level increase did not apply because the prior conviction which qualified him for the enhancement was not a " crime of violence" under the Sentencing Guidelines. Both below and on appeal, his argument was that Florida's manslaughter definition has no element of force and is not equivalent to " generic contemporary manslaughter." While his argument has been refined on appeal, its essence was fairly presented to the district court. As such, we review de novo.
United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2012) provides for a 16-level increase if " the defendant previously was deported ... after ... a crime of violence."  As the proponent of the increase, it is the government's burden to establish " a factual predicate justifying [the] sentencing adjustment, here that the offense constitutes a crime of violence."  An offense may qualify as a crime of violence for these purposes in one of two ways: it must either have an element of force or it must fall within the " generic contemporary meaning"  of one of the specifically listed offenses. Thus, if the Florida manslaughter offense either has an element of force or falls within the generic contemporary meaning of the term " manslaughter," which appears in the list of qualifying offenses, it is a crime of violence.
In determining whether the Florida offense qualifies for ...