from the United States District Court for the Southern
District of Texas
STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,
SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,
DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. [*]
E. SMITH, Circuit Judge, joined by JONES, OWEN, ELROD,
SOUTHWICK, HAYNES, WILLETT, HO, DUNCAN, ENGELHARDT, and
OLDHAM, Circuit Judges: [**]
Reyes-Contreras pleaded guilty of illegal reentry. Because he
had been convicted of voluntary manslaughter in Missouri, the
district court applied a sentencing enhancement for a crime
of violence ("COV"). Well represented by the
Federal Public Defender, Reyes-Contreras appealed to
challenge the enhancement. Burdened by binding caselaw that
required us to declare that killing a person with a baseball
bat is not a COV, the panel vacated for
resentencing. The court granted the government's
petition for rehearing en banc, thus vacating the panel
opinion. Finding it necessary to overrule several
of our precedents, we now affirm the judgment of conviction
was deported in 2012 and was apprehended in 2016 immediately
upon reentry from Mexico. He admitted to being a citizen of
Honduras and pleaded guilty, without a plea agreement, of
being found in the United States unlawfully after having been
deported, in violation of 8 U.S.C. § 1326(a) and (b)
had two Missouri convictions in 2006: one for voluntary
manslaughter in the first degree and a second for armed
criminal action. The presentence report assigned a base
offense level of 8 under U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 2L1.2(a) (2015) and, deeming the
voluntary manslaughter conviction to be a COV, applied a
sixteen-level enhancement under U.S.S.G. §
respect to the manslaughter conviction, the indictment states
that Reyes-Contreras struck the victim with a baseball bat,
causing death. Although he was charged with second-degree
murder, a Class A felony, Reyes-Contreras pleaded guilty of
voluntary manslaughter, a Class B felony. The plea includes
neither an elaboration of the facts nor the subsection of
conviction. Because the Missouri manslaughter statute
criminalizes generic manslaughter as well as knowingly
assisting another in self-murder, Reyes-Contreras asserted
that the statute is indivisible and overbroad under
Mathis v. United States, 136 S.Ct. 2243
Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A)(ii),
call for a sixteen-level enhancement for "a crime of
violence." The Commentary to subsection (b)(1) contains
a "[d]efinitions" segment, Application Note
1(B)(iii), which defines "[c]rime of violence" to
encompass both an enumerated list of crimes, including
"manslaughter," and "any other offense . . .
that has as an element the use, attempted use, or threatened
use of physical force against the person of another."
Our main task is to decide whether Reyes-Contreras's
state conviction is for a COV under one or both of those
qualify as an enumerated crime, the statute of conviction
must match the generic offense―here, manslaughter.
Mathis, 136 S.Ct. at 2247; Taylor v. United
States, 495 U.S. 575, 598 (1990). Under that
so-called "categorical approach," the court should
"ignor[e] the particular facts of the case" and
instead should ask whether the elements of the crime of
conviction and the elements of the generic crime are
sufficiently similar. Mathis, 136 S.Ct. at 2248
(citation omitted). That requires us first to identify the
crime of conviction. Where a defendant pleads guilty, the
elements are those things he necessarily admits in his plea.
statute is divisible, meaning that it describes separate
offenses with distinct elements, we employ the "modified
categorical approach," which directs us to look only to
a limited set of documents to determine which subsection of
the statute was the basis for conviction. Shepard v.
United States, 544 U.S. 13, 25-26 (2005). We then
compare the elements of that subsection to the elements of
the generic crime. But if a statute lists means of committing
a single offense, it is indivisible and must be taken as a
whole instead of using the facts of the offense to narrow the
statute. Descamps v. United States, 570 U.S. 254,
time of conviction, the Missouri voluntary-manslaughter
statute read as follows:
1. A person commits the crime of voluntary manslaughter if
(1) Causes the death of another person under circumstances
that would constitute murder in the second degree under
subdivision (1) of subsection 1 of section 565.021, except
that he caused the death under the influence of sudden
passion arising from adequate cause; or
(2) Knowingly assists another in the commission of
2. The defendant shall have the burden of injecting the issue
of influence of sudden passion arising from adequate cause
under subdivision (1) of subsection 1 of this section.
3. Voluntary manslaughter is a class B felony.
Mo. Rev. Stat. § 565.023. Missouri second-degree murder
has the following elements:
1. A person commits the crime of murder in the second degree
(1) Knowingly causes the death of another person or, with the
purpose of causing serious physical injury to another person,
causes the death of another person . . . .
Id. § 565.021.
parties do not dispute that voluntary manslaughter as defined
in Subdivision (1) of Subsection 1 of Section
565.023 is a COV meeting the elements of generic
manslaughter. Reyes-Contreras, however, contends that the
statute is indivisible and cannot be generic because
Subdivision (2) criminalizes assisting another in
self-murder. He further asserts that Subdivision (2) lacks,
as an element, the use of force, so it does not qualify under
the alternate definition of a COV.
sufficiently preserved and briefed the issue of divisibility,
and the panel addressed it in detail, 882 F.3d at 119-20,
"conclud[ing] that Missouri's manslaughter statute
is divisible," id. at 119. Although that issue
is still properly before us, we do not understand
Reyes-Contreras to be emphasizing it now. In any event, we
maintain our holding that the statute is divisible under
Mathis, 136 S.Ct. at 2256-57, and we reinstate and
incorporate that part of the panel opinion.
decide whether the basis of Reyes-Contreras's conviction
was generic manslaughter under Subdivision (1) of the
divisible Subsection 1. If, instead, he was convicted under
Subsection 1 as a whole or under only Subdivision (2) of
Subsection 1, the enhancement cannot apply unless Subdivision
(2) is generic or "has as an element the use . . . of .
. . force." U.S.S.G. § 2L1.2 cmt. 1(B)(iii);
see, e.g., United States v. Neri-Hernandes, 504 F.3d
587, 589 n.2 (5th Cir. 2007).
have said, Shepard directs us to employ the
"modified categorical approach" and to look to
"a limited class of documents," such as the
indictment, jury instructions, and plea agreements and
colloquies to determine the crime of conviction.
Mathis, 136 S.Ct. at 2249 (citing Shepard,
544 U.S. at 26). Those sources may be used not to locate
facts supporting a COV enhancement, but only "as a tool
to identify the elements of the crime of conviction."
Id. at 2253 (citation omitted); see also
Descamps, 570 U.S. at 263-64.
indictment mentions only second-degree murder and armed
criminal action, with no indication of a lesser-included
offense or of manslaughter as a separate offense. Count One,
with which we are concerned, says that Reyes-Contreras
"knowingly or with the purpose of causing serious
physical injury to [the victim] caused [his death] by
striking him with a baseball bat." That is insufficient
to identify the crime of conviction.
deciding whether Reyes-Contreras was convicted under
Subdivision (1) or Subdivision (2), we are mindful of the
general rule that we cannot use an indictment to narrow the
statute of conviction if the indictment is for a crime
different from the crime stated in the judgment of
conviction. See United States v. Turner, 349 F.3d
833, 836 (5th Cir. 2003). The general rule in Turner
was explained further in Neri-Hernandes, 504 F.3d at
590, and United States v. Bonilla, 524 F.3d 647, 652
(5th Cir. 2008). In Neri-Hernandes, 504 F.3d at 590,
we stated broadly that "the district court cannot use
the indictment to pare down the statute of conviction to
determine under which subsection [the defendant] pleaded
guilty" if he never pleaded to the crime in the
indictment. Accord Bonilla, 524 F.3d at 652.
for purposes of Reyes-Contreras's appeal, there is an
exception where the plea references a lesser-included
offense, allowing the indictment to clarify any ambiguity in
the plea. For example, in United States v.
Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006), we
looked to an indictment charging a crime different from the
crime stated in the judgment because the defendant pleaded to
"the lesser charge contained in the
Indictment." Thus, the indictment was used to clarify to
which crime the judgment referred. Similarly, in United
States v. Hernandez-Borjas, 641 Fed.Appx. 367, 369 (5th
Cir. 2016) (per curiam), the indictment charged a crime
different from the crime of conviction. But, relying on
Martinez-Vega, we looked to the indictment.
Id. at 372 (quoting Martinez-Vega, 471 F.3d
at 562). Though the indictment did not spell out a
lesser-included offense, its language tracked the elements of
a particular subsection and provided the necessary context to
show that only one lesser-included offense was possible.
Thus, "the indictment [was] relevant to ascertain the
meaning of 'the lesser included
Reyes-Contreras's indictment nor his plea explicitly
refers to a lesser-included offense. It is nonetheless
evident, based on the language in the indictment, that he was
charged under Subdivision (1) and not Subdivision
(2). And just as obviously, he pleaded guilty
of violating Subdivision (1) and not Subdivision (2).
conclusion that Reyes-Contreras was convicted under
Subdivision (1) flows unavoidably from Missouri Revised
Statutes § 565.025.2(2), which delineates Subdivision
(1) voluntary manslaughter as a lesser-included offense of
second-degree murder. It does not likewise list voluntary
manslaughter as a whole or under Subdivision (2). The panel
thus concluded, 882 F.3d at 121-22, that "[i]t is clear
from Missouri law that [Subdivision] (1) is the only possible
offense in the judgment" and that "the use of
'first degree' in the judgment seems to indicate an
intention to narrow down" the crime of
panel further recognized, however, under our well-established
rule of orderliness,  Bonilla bars that
common-sense reasoning. In Bonilla, we held that
[b]ecause the criminal information charges a crime of which
Bo-nilla was not convicted, it cannot be used to "pare
down the statute of conviction to determine under which
subsection [Bonilla] pleaded guilty." United States
v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir. 2007);
see United States v. Gonzalez-Ramirez, 477 F.3d 310,
315 (5th Cir. 2007) (reaching same conclusion when defendant
pleaded guilty to attempted kidnapping but indictment charged
only aggravated kidnapping); see also United States v.
Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that,
in the context of USSG § 4B1.2, "a district court
may not rely on a charging document without first
establishing that the crime charged was the same crime for
which the defendant was convicted").
Therefore, the district court could not consider the criminal
information to establish that Bonilla's offense qualified
as a crime of violence.
Bonilla, 524 F.3d at 652-53. The corresponding
footnote offered further explanation:
The government relies on . . . United States v.
Martinez-Vega, 471 F.3d 559 (5th Cir. 2006) . . ., but
this case is distinguishable. In Martinez-Vega, we
held that a judgment . . . showed that he was convicted of
"the lesser charge contained in the
indictment." Id. at 563 . . . . Because
the lesser charge was made clear from the judgment,
and was found by the court as actually being charged in the
original indictment, the applicant could not carry his
"burden of demonstrating plain error." Id.
In this case, we have a certificate of disposition that does
not refer back to a lesser offense in the original
indictment. . . . Further, extending Martinez-Vega
to this situation would unnecessarily bring it into conflict
with Neri-Hernandez and Gonzalez-Ramirez.
Id. at 653 n.4.
court's decision in Bonilla defies ordinary
logic and is error. Most importantly, it disobeys Supreme
Court precedent. Writing for the Court in Shepard,
544 U.S. at 16, Justice Souter described the question as
"whether a sentencing court can look to police reports
or complaint applications to determine whether an earlier
guilty plea necessarily admitted, and supported a conviction
for, generic burglary." The Court closed with the
We hold that enquiry under the [Armed Career Criminal Act] to
determine whether a plea of guilty to burglary defined by a
non-generic statute necessarily admitted elements of the
generic offense is limited to the terms of the charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
basis for the ...