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United States v. Reyes-Contreras

United States Court of Appeals, Fifth Circuit

November 30, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
FREDIS ALBERTO REYES-CONTRERAS, Also Known as Alberto Contreras-Romero, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. [*]

          JERRY E. SMITH, Circuit Judge, joined by JONES, OWEN, ELROD, SOUTHWICK, HAYNES, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges: [**]

         Fredis 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.[1] The court granted the government's petition for rehearing en banc, thus vacating the panel opinion.[2] Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence.

         I.

         Reyes-Contreras 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) (2012).

         Reyes-Contreras 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)[3] and, deeming the voluntary manslaughter conviction to be a COV, applied a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).[4]

         With 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 (2016).[5]

         II.

         A.

         The 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 definitions.

         To 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).[6] 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. Id.

         If a 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, 272-74 (2013).

         B.

         At the time of conviction, the Missouri voluntary-manslaughter statute read as follows[7]:

1. A person commits the crime of voluntary manslaughter if he:
(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 self-murder.
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[8]:

1. A person commits the crime of murder in the second degree if he:
(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.

         III.

         The parties do not dispute that voluntary manslaughter as defined in Subdivision (1) of Subsection 1 of Section 565.023[9] 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.

         Reyes-Contreras 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.

         IV.

         We must 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).

         A.

         As we 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.

         Reyes-Contreras's 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.

         B.

         In 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.

         Importantly, 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 offense.'" Id.

         Neither 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)[10] and not Subdivision (2).[11] And just as obviously, he pleaded guilty of violating Subdivision (1) and not Subdivision (2).

         The conclusion that Reyes-Contreras was convicted under Subdivision (1) flows unavoidably from Missouri Revised Statutes § 565.025.2(2), [12]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 conviction.[13]

         As the panel further recognized, however, under our well-established rule of orderliness, [14] Bonilla bars that common-sense reasoning. In Bonilla, we held that

[b]ecause the criminal information[15] 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.

         This 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 following summary:

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 ...

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