                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 15-10051
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      4:14-cr-01336-
                                          JGZ-BGM-1
CARLOS RICARDO MENDOZA-
PADILLA, AKA Carlos Mendoza,
AKA Carlos Mendoza-Padilla,                OPINION
             Defendant-Appellant.


      Appeal from the United States District Court
               for the District of Arizona
      Jennifer G. Zipps, District Judge, Presiding

         Argued and Submitted June 15, 2016
              San Francisco, California

                 Filed August 16, 2016

    Before: Richard C. Tallman, Richard R. Clifton,
          and Sandra S. Ikuta, Circuit Judges.

              Opinion by Judge Tallman
2           UNITED STATES V. MENDOZA-PADILLA

                           SUMMARY*


                          Criminal Law

    Vacating a sentence and remanding for resentencing, the
panel held that manslaughter, as defined by Florida Statute
§ 782.07, does not constitute a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A) because Florida manslaughter by
act, which does not require a mens rea of at least
recklessness, criminalizes conduct that goes beyond the
contemporary generic definition of manslaughter.


                            COUNSEL

Hariette P. Levitt, Tucson, Arizona, for Defendant-Appellant.

Rosaleen O’Gara (argued), Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; John S. Leonardo, United
States Attorney; United States Attorney’s Office, Tucson,
Arizona; for Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V. MENDOZA-PADILLA                   3

                          OPINION

TALLMAN, Circuit Judge:

    Carlos Mendoza-Padilla pled guilty to one count of illegal
re-entry after deportation. The district court applied a 16-
level increase to Mendoza-Padilla’s base offense level based
on his prior manslaughter conviction under Florida law. We
now consider in light of United States Supreme Court
guidance whether manslaughter, as defined by Florida Statute
§ 782.07, constitutes a crime of violence under the United
States Sentencing Guidelines § 2L1.2(b)(1)(A). We hold that
it does not. Accordingly, we vacate Mendoza-Padilla’s
sentence and remand for resentencing.

                               I

    Carlos Mendoza-Padilla came to the United States as a
teenager in 1998. In 2003, he was convicted of manslaughter
under Florida Statute § 782.07. Mendoza-Padilla was
deported and re-entered the United States several times. In
2014, Mendoza-Padilla pled guilty without a plea agreement
to one count of illegal re-entry after deportation, in violation
of 8 U.S.C. § 1326. The probation officer calculated the base
offense level as 8 under the United States Sentencing
Guidelines § 2L1.2(a) and increased the base level by 16
under § 2L1.2(b)(1)(A) because he understandably believed
that Mendoza-Padilla’s Florida manslaughter conviction was
a “crime of violence.” After an acceptance of responsibility
adjustment, the final offense level was 21.

    Mendoza-Padilla objected to the 16-level increase in the
Presentence Report on the ground that manslaughter under
Florida law, as interpreted by the Florida courts, was not a
4         UNITED STATES V. MENDOZA-PADILLA

“crime of violence” under federal sentencing law. At
sentencing, the district judge agreed with the probation
officer, overruled Mendoza-Padilla’s objection, and
sentenced him to 57 months in prison. Mendoza-Padilla
timely appealed.

                              II

   Mendoza-Padilla asserts that the application of the 16-
level enhancement was improper because Florida
manslaughter requires a mens rea only of negligence, which
does not meet the generic definition of the crime. We review
de novo the district court’s decision. United States v.
Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).

                              A

    Section 2L1.2(b)(1)(A)(ii) permits a sentencing court to
increase a defendant’s offense level by sixteen levels if “the
defendant previously was deported . . . after . . . a crime of
violence.” The Application Notes to § 2L1.2(b)(1)(A)(ii) list
a number of specifically enumerated offenses that qualify as
a “crime of violence,” among them generic manslaughter.

       “Crime of violence” means any of the
       following offenses under federal, state, or
       local law: murder, manslaughter, kidnapping,
       aggravated assault, forcible sex offenses . . . ,
       statutory rape, sexual abuse of a minor,
       robbery, arson, extortion, extortionate
       extension of credit, burglary of a dwelling, or
       any other offense under federal, state, or local
       law that has an element the use, attempted
          UNITED STATES V. MENDOZA-PADILLA                   5

       use, or threatened use of physical force
       against the person of another.

U.S.S.G. § 2L1.2, Application Note 1(B)(iii) (2014)
(emphasis added).

    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). See United States v. Rodriguez-
Guzman, 506 F.3d 738, 741 (9th Cir. 2007) (“When an
offense is specifically enumerated by the Application Notes
as a ‘crime of violence,’ we have consistently drawn the
conclusion that the offense is a per se crime of violence under
the Guidelines.”). This does not end our inquiry, however,
and the Supreme Court has told us the analysis is not so clear.

    To determine whether Florida manslaughter qualifies as
a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A), we
apply the categorical approach outlined by the United States
Supreme Court in Taylor v. United States, 495 U.S. 575, 602
(1990). Applying it, we ask whether Florida manslaughter
corresponds to the elements of the generically defined crime
under common law “by examining only the fact of conviction
and the statutory definition of the prior offense.” United
States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016) (internal
quotation marks omitted). If the statute of conviction is
“overinclusive”—meaning that it criminalizes conduct that
goes beyond the elements of the generic offense—“Taylor
authorizes courts to ‘go beyond the mere fact of conviction in
a narrow range of cases where a jury was actually required to
find all the elements of the enumerated offense.’” Id.
(quoting United States v. Jennings, 515 F.3d 980, 987 (9th
Cir. 2008)). “In such cases, we employ the ‘modified
6         UNITED STATES V. MENDOZA-PADILLA

categorical approach’ and examine the charging paper and
jury instructions to determine whether the defendant was
necessarily convicted of an offense corresponding to the
[generic offense.].” Id. (internal quotation marks omitted).
We only apply the modified categorical approach “in the case
of a divisible statute.” Id.

                              B

   The relevant language of Florida’s manslaughter statute
provides:

       The killing of a human being by the act,
       procurement, or culpable negligence of
       another, without lawful justification according
       to the provisions of chapter 776 and in cases
       in which such killing shall not be excusable
       homicide or murder, according to the
       provisions of this chapter, is manslaughter, a
       felony of the second degree . . . .

Fla. Stat. § 782.07(1) (2003). The parties’ dispute centers on
the mental state required by the Florida manslaughter statute,
so we focus our inquiry on that issue.

    The federal generic definition of manslaughter includes
both “voluntary manslaughter (intended homicide in a heat of
passion upon adequate provocation) and involuntary
manslaughter (unintended homicide under certain
circumstance).” United States v. Gomez-Leon, 545 F.3d 777,
791 (9th Cir. 2008) (quoting 2 Wayne R. LeFave, Substantive
Criminal Law § 15.4 (2d ed. 2007)). Under the modern
definition, involuntary manslaughter incorporates, at most, a
mens rea of recklessness. Id.; see also United States v.
          UNITED STATES V. MENDOZA-PADILLA                 7

Dominguez-Ochoa, 386 F.3d 639, 645–46 (5th Cir. 2004)
(same) (surveying all fifty states). We have held that a
mental state of recklessness requires:

       [C]onduct that involves both (1) a high degree
       of risk of death or serious bodily injury, in
       addition to the unreasonable risk required for
       ordinary negligence or a gross deviation from
       the ordinary standard of care and (2) that the
       defendant be aware of the fact that his conduct
       creates this risk.

Gomez-Leon, 545 F.3d at 791 n.11 (internal quotations
omitted).     A mental state of recklessness is also
distinguishable from “criminal negligence,” which requires
“only a failure to perceive a risk, as compared to the
recklessness requirement of an awareness and conscious
disregard of the risk.” Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1130 (9th Cir. 2006) (en banc) (internal quotation
marks omitted); see also Gomez-Leon, 545 F.3d at 791 n.11
(“Gross negligence or criminal negligence requires something
more than ordinary negligence, such as one, and in some
cases both, of the additional elements.”).

                             C

    We now proceed to compare the mental state required by
generic contemporary manslaughter to that required by the
Florida manslaughter statute. Section 782.07(1) of Florida’s
manslaughter statute “establishes three forms of manslaughter
(by act, by procurement, or by culpable negligence).” State
v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010). If Florida
manslaughter requires a mens rea of at least recklessness,
then the statute as a whole falls within the definition of
8            UNITED STATES V. MENDOZA-PADILLA

generic contemporary manslaughter and there would be no
error in imposing the 16-level enhancement.

    The Fifth Circuit recently addressed this issue in United
States v. Garcia-Perez:

         We are persuaded that Florida manslaughter
         by act covers more than just those acts
         committed with intent to kill or recklessness
         as to death. Section 782.07(1) thus falls
         outside the definition of generic contemporary
         manslaughter.

779 F.3d 278, 289 (5th Cir. 2015). We agree and also now
hold that Florida manslaughter by act criminalizes conduct
that goes beyond the generic definition of manslaughter.1

    We turn to Florida case law to determine the mental state
required for Florida manslaughter. See Almanza-Arenas v.
Lynch, 815 F.3d 469, 475–76 (9th Cir. 2015) (en banc). In
State v. Montgomery, the Florida Supreme Court held that
“manslaughter by act” (one of the three forms of Florida
manslaughter) “does not impose a requirement that the
defendant intend to kill the victim.” 39 So. 3d at 256.
Rather, “where one commits an act that results in death, and
such an act is not lawfully justified or excusable, it is
manslaughter.” Id. While the Florida Supreme Court in
Montgomery clarified that intent to kill is not required to



 1
   Because we find that Florida “manslaughter by act” requires something
less than recklessness, we need not decide the mental state that is required
to support a conviction for the other forms of manslaughter under Florida
law.
             UNITED STATES V. MENDOZA-PADILLA                       9

prove act manslaughter, the high court was notably silent as
to whether a mental state of recklessness is required.

    Montgomery’s “silence as to recklessness” left intact a
long line of cases requiring something less than recklessness
to support a manslaughter by act conviction. Garcia-Perez,
779 F.3d at 285. In 1892, the Florida Supreme Court in
Baker v. State rejected the theory that manslaughter required
the victim’s death to have been “one of the reasonable or
probable results” of the defendant’s acts. 11 So. 492, 498
(Fla. 1892), overruled on other grounds by Tipton v. State,
97 So. 2d 277 (Fla. 1957). And in 1930, the Florida Supreme
Court in Gainer v. State reaffirmed Baker and held that “the
fact that it did not occur to the defendant that the death of the
deceased was a reasonable or probable result of the
defendant’s assault does not prevent a conviction of
manslaughter.” 129 So. 576, 577 (Fla. 1930). The state court
there upheld the defendant’s manslaughter conviction after
she shot her husband in the leg, causing him to unexpectedly
die of gangrene. Id. at 576.

     We note, however, that the Florida Supreme Court has
made clear that not “every act causally connected with the
killing of a human being” falls within the scope of Florida’s
manslaughter statute. Tipton, 97 So. 2d at 282. Rather, the
text of Florida’s manslaughter statute provides the
“guideposts” to determine what acts should be punished as
manslaughter. Id. at 281. Specifically, § 782.07 provides
that a “justifiable homicide”2 or an “excusable homicide”3


 2
     Under Florida law:

          The use of deadly force is justifiable when a person is
          resisting any attempt to murder such person or to
10           UNITED STATES V. MENDOZA-PADILLA

cannot be punished by Florida’s general manslaughter statute.
Id. at 281–82. Accordingly, Florida’s manslaughter statute
ensures that:

          Consideration of the act in its surroundings at
          the time of its commission, not of the results
          alone, . . . determine[s] criminal responsibility
          for manslaughter under the Florida homicide
          statute.

Id. at 281 (emphasis added).

    Applying similar reasoning, the Florida Supreme Court in
Eversley v. State held that manslaughter convictions require
both cause-in-fact and proximate cause showings. 748 So. 2d
963, 966–67 (Fla. 1999). “In order to establish that a
defendant’s conduct was the ‘cause in fact’ of a particular
harm, the State usually must demonstrate that ‘but for’ the
defendant’s conduct, the harm would not have occurred.” Id.


          commit any felony upon him or her or upon or in any
          dwelling house in which such person shall be.

Fla. Stat. § 782.02.
 3
     Under Florida law:

          Homicide is excusable when committed by accident
          and misfortune in doing any lawful act by lawful means
          with usual ordinary caution, and without any unlawful
          intent, or by accident and misfortune in the heat of
          passion, upon any sudden and sufficient provocation, or
          upon a sudden combat, without any dangerous weapon
          being used and not done in a cruel or unusual manner.

Fla. Stat. § 782.03.
          UNITED STATES V. MENDOZA-PADILLA                  11

at 967. In addition, proximate cause is determined based on
two considerations: “(1) whether the prohibited result of the
defendant’s conduct is beyond the scope of any fair
assessment of the danger created by the defendant’s conduct
and (2) whether it would be otherwise unjust, based on
fairness and policy considerations, to hold the defendant
criminally responsible for the prohibited result.” Id.

    While these cases limit the bounds of Florida
manslaughter, they do not restrict manslaughter to acts
committed recklessly. Indeed, several Florida courts of
appeal have affirmed manslaughter convictions after the
victim suffered an unanticipated death after a single, sudden
punch. For instance, in Hall v. State, the defendant punched
the victim’s jaw, causing his sudden death. 951 So. 2d 91, 93
(Fla. Dist. Ct. App. 2007). The court affirmed the
defendant’s manslaughter conviction, despite the “very
unusual” reaction to the single punch, because manslaughter
by act covers “intentional acts that result in unintentional
deaths.” Id. Similarly, in Weir v. State, the court upheld the
defendant’s manslaughter conviction after the victim
unexpectedly suffered a brain aneurysm after a single punch.
777 So. 2d 1073, 1074 (Fla. Dist. Ct. App. 2001). We think
that these “single, sudden punch” cases illustrate that Florida
manslaughter broadly covers more than just those acts
committed recklessly.

    We also note that Florida’s Standard Jury Instructions
were amended in 2011 to “require[] an intentional act not
constituting negligence.” In re Amendments to Standard Jury
Instructions in Criminal Cases—Instruction 7.7, 75 So. 3d
210, 211 (Fla. 2011). The amendment provides:
12        UNITED STATES V. MENDOZA-PADILLA

       In order to convict of manslaughter by act, it
       is not necessary for the State to prove that the
       defendant had an intent to cause death, only
       an intent to commit an act that was not merely
       negligent, justified, or excusable and which
       caused death.

Id. at 212. This change does not expressly limit manslaughter
by act to cases involving an awareness and conscious
disregard of the risk of death. See Garcia-Perez, 779 F.3d at
288. And, the amendment certainly did not overturn the
Florida cases requiring something less than recklessness to
prove manslaughter, as the Florida Supreme Court
“express[ed] no opinion on [the instruction’s] correctness.”
In re Amendments, 75 So. 3d at 211.

    Finally, the United States argues that Florida case law
following the Montgomery decision clarified that the lowest
level of mens rea required to sustain a conviction under
Florida’s manslaughter statute is culpable negligence. The
government asserts that culpable negligence, under Florida
law, is akin to the generic definition of recklessness
recognized by our circuit’s precedent. The Florida cases cited
by the government discuss when a faulty jury instruction on
manslaughter by act should be considered fundamental error.
See, e.g., Sullivan v. State, 50 So. 3d 33, 34 (Fla. Dist. Ct.
App. 2010); Joyner v. State, 41 So. 3d 306, 306–07 (Fla. Dist.
Ct. App. 2010); Riesel v. State, 48 So. 3d 885, 886 (Fla. Dist.
Ct. App. 2010). These cases hold that “any instruction that
includes intent to kill as an element of manslaughter by act is
fundamental error” except when “the trial court gives the
erroneous instruction on manslaughter by act in combination
with the instruction on manslaughter by culpable negligence.”
Sullivan, 50 So. 3d at 34. In such cases, fundamental error
           UNITED STATES V. MENDOZA-PADILLA                  13

does not occur “because it is possible the jury will base its
decision only upon the elements of manslaughter by culpable
negligence, which [does] not require a finding of intent to
kill.” Id.

     We do not read these cases as establishing that culpable
negligence is the lowest mental state required to maintain a
manslaughter conviction under Florida law. Rather, these
cases merely hold that a faulty instruction on manslaughter by
act is not fundamental error when the jury is also instructed
on an alternate form of manslaughter—manslaughter by
culpable negligence. Specifically, these cases involve a
situation where the jury found the defendant guilty of second
degree murder, but the trial court erred by instructing the jury
that the lesser included offense of manslaughter by act
requires the mens rea of intent to kill. See, e.g., id. As the
Florida Supreme Court explained, the misinstruction on
manslaughter by act could be prejudicial because “[i]f the
jury is not properly instructed on the next lower crime, then
it is impossible to determine whether, having been properly
instructed, it would have found the defendant guilty of the
next lesser offense.” Montgomery, 39 So. 3d at 259 (quoting
Pena v. State, 901 So. 2d 781, 787 (Fla. 2005)). This
potential prejudice can be averted, however, if the jury is
correctly instructed on manslaughter by culpable negligence,
which does not require a mens rea of intent. See Sullivan,
50 So. 3d at 34. Accordingly, these cases do not provide
further clarity on the mental state required to support a
Florida manslaughter conviction.

                              III

   In sum, under the state’s jurisprudence, Florida
manslaughter punishes more than only generic contemporary
14        UNITED STATES V. MENDOZA-PADILLA

manslaughter. The government does not argue that the
modified categorical approach applies. And the Supreme
Court tells us that is the end of our inquiry. See Descamps v.
United States, 133 S. Ct. 2276, 2286 (2013). Accordingly,
we are compelled to hold that Mendoza-Padilla’s 2003
manslaughter conviction does not qualify as a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A). It was therefore
error to impose the 16-level enhancement to Mendoza-
Padilla’s sentence. We vacate Mendoza-Padilla’s sentence
and remand for resentencing.

     VACATED and REMANDED for resentencing.
