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").
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.
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).
"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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Under this analysis — the categorical approach — the court examines
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."
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.
Quijada-Aguilar's conclusion that a conviction under section 192(a) is not a crime of violence under 18 U.S.C. § 16 does not resolve this case. There, we held that a conviction under section 192(a) is not a crime of violence under 18 U.S.C. § 16 because California permits a conviction for voluntary manslaughter with a mens rea of
We agree that, if we were limited to the "use, attempted use, or threatened use of physical force against the person of another" language of 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), Quijada-Aguilar would compel us to conclude that California Penal Code section 192(a) is not a crime of violence. However, we are not limited to this language and must take into account the fact that manslaughter is an enumerated offense. See Id. at 787.
In Gomez-Leon, we explained that the definition of "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) includes an enumerated list of offenses that "constitute `crimes of violence' per se."
"When the enumerated offense is a traditional crime, such as manslaughter, we derive its uniform meaning from the generic, contemporary meaning employed by most states, guided by scholarly commentary." Id. at 790. Our previous cases and those in other circuits establish that a mens rea of recklessness suffices to sustain a conviction for voluntary manslaughter under the generally accepted definition. The meaning of contemporary manslaughter includes both voluntary and involuntary forms of the offense. Id. at 791. We have adopted the Fifth Circuit's holding in United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004), and concluded that "the modern view appears to be that recklessness is an element" of manslaughter. Gomez-Leon, 545 F.3d at 791; see also United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) ("In finding that the Model Penal Code provides the best generic federal definition, we hold that `manslaughter' as enumerated in the Guidelines means a criminal homicide that is committed (a) recklessly or (b) intentionally if committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse."); United States v. Garcia-Perez, 779 F.3d 278, 284 (5th Cir. 2015) ("The inquiry is simple for our purposes because we have already held that generic contemporary manslaughter requires
Under California law, a mens rea of at least recklessness is required to sustain a voluntary manslaughter conviction. See People v. Lasko, 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, 672 (2000). Thus, at least when it comes to the mens rea element, there is a categorical match between California Penal Code section 192(a) and the generic, contemporary meaning of the offense.
Rivera-Muniz's argument that California Penal Code section 192(a) is broader than the generic definition of voluntary manslaughter because it encompasses convictions for unreasonable self-defense also fails. Rivera-Muniz concedes that section 192(a) is virtually identical to its federal counterpart, 18 U.S.C. § 1112(a), which reads:
California Penal Code section 192 reads:
Because Rivera-Muniz's conviction was under section 192(a), we need only concern ourselves with the definition of voluntary manslaughter.
Rivera-Muniz suggests that we should bypass this facial identity because California permits a conviction under section 192(a) for unreasonable self-defense, which goes beyond "a sudden quarrel or heat of passion." Cal. Penal Code § 192(a). Unreasonable self-defense is not explicitly stated in California Penal Code section 192(a). Rather, California case law provides that unreasonable self-defense is an alternative way of negating malice aside from heat-of-passion killings. "Punishment is mitigated [for voluntary manslaughter, as] the law deems [it] less blameworthy than murder because of the attendant circumstances and their impact on the defendant's mental state." People v. Elmore, 59 Cal.4th 121, 172 Cal.Rptr.3d 413, 325 P.3d 951, 957 (2014). Specifically, "[t]wo factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense." Id. Rivera-Muniz suggests that this judicial expansion of voluntary manslaughter beyond the statutory text demonstrates that section 192(a) is not a categorical match to the generic definition of manslaughter.
Rivera-Muniz ignores cases interpreting 18 U.S.C. § 1112 in precisely the same manner. See United States v. Manuel, 706 F.2d 908, 915 (9th Cir. 1983) ("[In] the typical case of `imperfect self-defense,' ... the defendant intends to use deadly force in the unreasonable belief that he is in
In sum, California Penal Code section 192(a) does not stray from the generic definition of voluntary manslaughter, which includes the concept of unreasonable self-defense.
California Penal Code section 192(a) matches the generic definition of "manslaughter," and is, therefore, categorically a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).