                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3072
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                   Dominic Kosmes, also known as Joe Remikio

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Arkansas - Fayetteville
                                  ____________

                              Submitted: March 9, 2015
                                 Filed: July 8, 2015
                                  ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Dominic Kosmes, a citizen of the Federated States of Micronesia, pleaded
guilty to reentering the United States illegally in violation of 8 U.S.C. § 1326(a). At
sentencing, the district court imposed a sixteen-level enhancement under United
States Sentencing Guideline § 2L1.2(b)(1)(A)(ii) because Kosmes previously pleaded
guilty to a crime of violence. Because the district court1 correctly concluded Kosmes
previously was convicted of a crime of violence, we affirm.

                                        I

      On July 9, 1997, Kosmes pleaded guilty to manslaughter in violation of 9
Guam Code Ann. § 16.50(a)(1) in the United States territory of Guam. He was
sentenced to ten years' imprisonment. After his release, Kosmes was deported to the
Federated States of Micronesia.

       In February 2014, Homeland Security discovered Kosmes in Arkansas. He was
arrested for illegally reentering the United States after deportation in violation of 8
U.S.C. § 1326(a). In March 2014, a grand jury issued a single-count indictment
against Kosmes. He eventually entered a guilty plea, which the district court accepted
in August 2014.

       Before sentencing, Kosmes filed five objections to the presentence
investigation report (PSR). Only one objection, however, needed to be resolved by
the district court at the sentencing hearing.2 Kosmes argued that the Eighth Circuit
"has left open the question of what mental state attaches to generic manslaughter for
purposes of determining whether it should qualify as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii)." And, according to Kosmes, because his manslaughter
conviction in Guam required only a reckless mental state, rather than an intentional
one, the PSR's sixteen-level enhancement for the manslaughter conviction was
improper. At the sentencing hearing, Kosmes articulated the fighting issues: "First,
is reckless[ness] the appropriate mental state for generic manslaughter; and if that is

      1
       The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
      2
       The other objections were either resolved by the probation office or had no
impact on the sentencing hearing.

                                            -2-
so, is reckless manslaughter a crime of violence that would trigger the 16-level
increase."

       After the district court noted the "precise issue" has not been resolved by the
Eighth Circuit, it held that the manslaughter conviction with a reckless mental state
qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district
court concluded that, "relying heavily upon the Eighth Circuit's opinion in [United
States v. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013)] and in particular its
collection of cases from other circuit courts of appeal, the [district court] is persuaded
that a reckless mens rea—or I should say a recklessness mens rea in the context of a
criminal homicide case—is sufficient to establish a crime of violence under Section
2L1.2." After applying a sixteen-level enhancement for the manslaughter conviction,
the district court calculated an advisory guidelines range of 46 to 57 months.3 The
district court found that the advisory range was significantly greater than necessary;
as a result the court imposed a sentence of 30 months' imprisonment. Kosmes timely
appeals.

                                         II

      We review the district court's application and interpretation of the Federal
Sentencing Guidelines de novo and its factual findings for clear error. United States
v. Malagon-Soto, 764 F.3d 925, 927 (8th Cir. 2014).

       Section 2L1.2(b)(1) permits a sentencing court to increase a defendant's offense
level by sixteen levels "[i]f the defendant previously was deported, or unlawfully


      3
        Kosmes argued that the manslaughter conviction should have qualified as a
four-level enhancement instead of a sixteen-level enhancement. If the district court
would have accepted Kosmes's argument, according to Kosmes, the advisory
guidelines range should have been 10 to 16 months (offense level 10, criminal history
category III).

                                          -3-
remained in the United States, after . . . (A) a conviction for a felony that is . . . (ii)
a crime of violence." Application note 1.(B)(iii) to § 2L1.2(b)(1) states that a
manslaughter conviction "under federal, state, or local law" is considered a "crime of
violence." This case calls upon us to determine whether Kosmes's manslaughter
conviction as defined under Guam law qualifies as the enumerated crime of
manslaughter under U.S.S.G. § 2L1.2.

       To determine whether manslaughter constitutes a crime of violence under the
Guidelines, we apply the categorical approach. See United States v. Medina-
Valencia, 538 F.3d 831, 833 (8th Cir. 2008). When applying the categorical
approach, "we look not to the facts of the particular prior case, but instead to whether
the state statute defining the crime of conviction categorically fits within the generic
federal definition of a corresponding crime of violence." United States v. Roblero-
Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013) (citation and internal quotation marks
omitted). Therefore, "a state offense is a categorical match with a generic federal
offense only if a conviction of the state offense 'necessarily' involved . . . facts
equating to [the] generic [federal offense]." Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013) (alterations in original) (quoting Shepard v. United States, 544 U.S. 13,
24 (2005) (plurality opinion)). "By 'generic' federal definition of a crime of violence,
we mean the 'sense in which the term is now used in the criminal codes of most
States.'" Roblero-Ramirez, 716 F.3d at 1125 (quoting Taylor v. United States, 495
U.S. 575, 598 (1990)).4

      4
         We acknowledge the Supreme Court's recent decision in Johnson v. United
States, No. 13-7120, 2015 WL 2473450, at *5 (U.S. June 26, 2015), where the
Supreme Court found the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B), unconstitutionally vague. This case involves an enumerated
offense under the Federal Sentencing Guidelines and, therefore, we have no occasion
to decide what applicability, if any, the Court's decision in Johnson has upon similar
residual-clause language in the Federal Sentencing Guidelines. We do note, however,
that the Court in Johnson specifically reaffirmed the use of the categorical approach
for enumerated offenses. Johnson, 2015 WL 2473450, at *9.

                                           -4-
       Kosmes argues generic federal manslaughter requires intentional, not reckless,
conduct. The Guam manslaughter statute to which Kosmes pleaded guilty requires
only reckless conduct, so Kosmes argues his prior manslaughter conviction does not
qualify as a crime of violence. The government disagrees that generic federal
manslaughter requires intentional conduct; it argues recklessness is sufficient.
Therefore, according to the government, Kosmes's manslaughter conviction qualifies
as a crime of violence under § 2L1.2(b)(1)(A)(ii).

       This case calls upon us to answer two questions. First, what is the generic
federal definition of manslaughter. Specifically, what mens rea is required for generic
federal manslaughter. Second, does Kosmes's manslaughter conviction, without
looking at the facts underlying his conviction, fit within the generic federal definition.
Regarding the first question, the Eighth Circuit has come close to determining the
mental state required for generic federal manslaughter. Although we have said
generic federal manslaughter requires a mental state of at least recklessness, we have
left open the question of whether anything more (e.g., intentional conduct) is
required. Malagon-Soto, 764 F.3d at 927 ("In applying the categorical approach, we
have not yet had occasion to determine the elements of the generic federal offense of
manslaughter; however, we have said that the generic federal offense of manslaughter
requires at least a mens rea of recklessness.")5; Roblero-Ramirez, 716 F.3d at 1126
("We need not decide at this time whether generic manslaughter requires purposeful
or intentional behavior . . . or mere recklessness." (internal citation and quotation
marks omitted)).

     Other circuits, however, have decided the requisite mens rea for generic federal
manslaughter. United States v. Armijo, 651 F.3d 1226, 1236 (10th Cir. 2011)

      5
       At first blush, Malagon-Soto appears to resolve this issue. However,
Malagon-Soto stated merely recklessness was the lowest possible mens rea; it did not
hold recklessness would necessarily satisfy the mens rea for generic federal
manslaughter.

                                          -5-
(finding generic federal manslaughter requires “purposeful or intentional” conduct);
United States v. Hernandez-Rojas, 426 F. App'x 67, 70 (3d Cir. 2011) (holding
generic federal manslaughter requires a recklessness mental state); United States v.
Peterson, 629 F.3d 432, 436–37 (4th Cir. 2011) (finding the mens rea required for
generic federal manslaughter is reckless or intentional conduct); United States v.
Dominguez-Ochoa, 386 F.3d 639, 646 (5th Cir. 2004) (deciding generic federal
manslaughter requires a recklessness mens rea).

       In Peterson, the Fourth Circuit found that a review of manslaughter offenses
from various states' codes, "yield[ed] material variations." 629 F.3d at 436. As a
result, the Fourth Circuit concluded "as did the Supreme Court in Taylor, that the
Model Penal Code provides the best generic, contemporary, and modern definition,
particularly because it has been widely adopted." Id. (citing Taylor, 495 U.S. at 598
n.8). The Fourth Circuit then noted the Model Penal Code defines manslaughter as
homicide (a) that is committed recklessly or (b) that would be murder except for the
fact that it was committed under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation or excuse. Id. (citing Model
Penal Code § 210.3). And "[i]n turn, [the Model Penal Code] defines recklessness
to mean a 'conscious[] disregard [] of a substantial and unjustifiable risk that the
material element will result from [the] conduct.'" Id. (citing Model Penal Code
§ 2.02(c)).

       In Armijo, the Tenth Circuit reached the opposite result, finding only versions
of manslaughter that require intentional or purposeful conduct qualify as crimes of
violence. 651 F.3d at 1236. The Tenth Circuit noted that offenses found to be crimes
of violence generally involve purposeful, violent, and aggressive conduct. Such
conduct was not present in the underlying involuntary manslaughter offense at issue.
Id. at 1234–35. The Tenth Circuit went on to note, "it is simply untenable to read
manslaughter as set out in application note 1 . . . as encompassing those versions of



                                        -6-
the crime with a mens rea of recklessness, when this court has unequivocally held that
. . . § 4B1.2 only reaches purposeful or intentional behavior." Id. at 1236.

      We find the Fourth Circuit's reliance on Taylor and the Model Penal Code
persuasive. The Supreme Court's decision in Taylor directs us to define generic
federal manslaughter by the "sense in which the term is now used in the criminal
codes of most States." 495 U.S. at 598. We agree with the Fourth Circuit that the
Model Penal Code has been "widely adopted," Peterson, 629 F.3d at 436, and
provides the best definition. See also United States v. Gomez-Leon, 545 F.3d 777,
791 (9th Cir. 2008) (finding “the modern view appears to be that recklessness is an
element of contemporary manslaughter”). 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.

       We also note that our decision today does not depart from any of our prior
decisions. In Armijo, the Tenth Circuit apparently relied on our decision in United
States v. Ossana, 638 F.3d 895 (8th Cir. 2011), to support its holding. Armijo, 651
F.3d at 1236. The Tenth Circuit stated Ossana held "that crimes listed in application
note 1 . . . must be intentional or purposeful to qualify as crimes of violence." Id. In
Ossana, however, we qualified and limited our holding to "crimes . . . which
encompass[] the unadorned offense of reckless driving resulting in injury." Ossana,
638 F.3d at 901 n.6. We did not say in Ossana that crimes with a reckless mens rea
categorically do not qualify as crimes of violence under the Guidelines. Id. In
finding recklessness satisfies the mens rea for generic federal manslaughter, we
respectfully disagree with the Tenth Circuit's holding in Armijo.6


      6
       We note that the Tenth Circuit has questioned its holding in Armijo. See
United States v. Duran, 696 F.3d 1089, 1093 n.1 (10th Cir. 2012) ("[I]t is possible

                                         -7-
       We now turn to the second inquiry: whether Kosmes's manslaughter conviction
fits within the generic federal definition of manslaughter. Kosmes's admits "it is
undisputed that the pertinent portion of the Guam statute provided that criminal
homicide constitutes manslaughter when it is committed recklessly." He further
admits "the wording of the 1997 manslaughter statute [to which Kosmes pleaded
guilty to] is identical to the Model Penal Code § 210.3 manslaughter definition." As
a result, Kosmes's manslaughter conviction qualifies as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).

                                      III

      The judgment of the district court is affirmed.
                     ______________________________




that at least some crimes with a recklessness element might be crimes of violence.
But Armijo seems to foreclose this inquiry in our circuit.").

                                       -8-
