                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 15-10560
                 Plaintiff-Appellee,
                                                   D.C. No.
                     v.                         4:14-cr-01930-
                                                 JGZ -LAB-1
 HUGO SALVADOR RIVERA-MUNIZ,
 AKA Hugo Salvador Rivera, AKA
 Hugo Salvadore Rivera,                            OPINION
               Defendant-Appellant.


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

         Argued and Submitted December 16, 2016
                 San Francisco, California

                      Filed April 20, 2017

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,
         and Leslie E. Kobayashi,* District Judge.

                 Opinion by Judge Kobayashi




    *
      The Honorable Leslie E. Kobayashi, Judge for the United States
District Court for the District of Hawaii, sitting by designation.
2              UNITED STATES V. RIVERA-MUNIZ

                            SUMMARY**


                            Criminal Law

   Affirming a sentence, the panel held that Cal. Penal Code
§ 192(a) matches the generic definition of “manslaughter”
and is therefore categorically a crime of violence under
§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.


                             COUNSEL

Stephanie Bond (argued), The Law Offices of Stephanie K.
Bond P.C., Tucson, Arizona, for Defendant-Appellant.

Lauren G. LaBuff (argued), and Christina M. Cabanillas,
Assistant United States Attorneys; 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. RIVERA-MUNIZ                     3

                          OPINION

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”).1 We
review the district court’s determination that Rivera-Muniz’s
prior conviction constitutes a crime of violence de novo.
United States v. Marcia-Acosta, 780 F.3d 1244, 1248 (9th
Cir. 2015). We affirm.

                                I

    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

    1
      Citations to the Sentencing Guidelines reference the 2014
Guidelines, which were in effect when Rivera-Muniz was sentenced.
United States v. Thomsen, 830 F.3d 1049, 1071 (9th Cir. 2016).
Amendments effective November 1, 2016, eliminated the language of
U.S.S.G. § 2L1.2 at issue in the instant appeal. U.S. Sentencing
Guidelines Manual supp. to app. C, amend. 802, at 147–49 (U.S.
Sentencing Comm’n 2016).
4               UNITED STATES V. RIVERA-MUNIZ

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.

                                     II

    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).2 The definition of




    2
        U.S.S.G. § 2L1.2 provides:

          (a) Base Offense Level: 8

          (b) Specific Offense Characteristic

               (1) Apply the Greatest:

                   If the defendant previously was deported, or
                   unlawfully remained in the United States,
                   after—

                   (A) a conviction for a felony that is . . . (ii) a
                       crime of violence . . . , increase by 16
                       levels if the conviction receives criminal
                       history points under Chapter Four or by
                       12 levels if the conviction does not
                       receive criminal history points[.]
                 UNITED STATES V. RIVERA-MUNIZ                           5

“crime of violence” includes an enumerated list of crimes,
including “manslaughter.”3 Id. § 2L1.2 cmt. n.1(B)(iii).

    “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 (1990)). Under this analysis—the
categorical approach—the court examines “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)
(citation and internal quotation marks omitted). Moreover,


    3
        The Application Notes to U.S.S.G. § 2L1.2 state, in relevant part:

            “Crime of violence” means any of the following
           offenses under federal, state, or local law: murder,
           manslaughter, kidnapping, aggravated assault, forcible
           sex offenses (including where consent to the conduct is
           not given or is not legally valid, such as where consent
           to the conduct is involuntary, incompetent, or coerced),
           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 as an element the use, attempted use,
           or threatened use of physical force against the person of
           another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).
6                UNITED STATES V. RIVERA-MUNIZ

“we do not look to the specific conduct that was the basis of
a defendant’s state convictions.” United States v. Velasquez-
Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).4

    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.”5 Malice “is express when
there is manifested a deliberate intention unlawfully to take
away the life of a fellow creature,” and “implied . . . when no
considerable provocation appears, or when the circumstances



    4
      If the statute of conviction criminalizes more conduct than the
generic, contemporary definition of the offense, we may use the modified
categorical approach. Gomez-Leon, 545 F.3d at 783–84. Because we
conclude that California Penal Code section 192(a) does not criminalize
more conduct than the generic definition of manslaughter, we need not use
the modified categorical approach.
    5
        California Penal Code section 192 provides, in pertinent part:

           Manslaughter is the unlawful killing of a human being
           without malice. It is of three kinds:

               (a) Voluntary-upon a sudden quarrel or heat of
               passion.

               (b) Involuntary-in the commission of an unlawful
               act, not amounting to a felony; or in the
               commission of a lawful act which might produce
               death, in an unlawful manner, or without due
               caution and circumspection. This subdivision shall
               not apply to acts committed in the driving of a
               vehicle.

               (c) Vehicular[.]
              UNITED STATES V. RIVERA-MUNIZ                        7

attending the killing show an abandoned and malignant
heart.” Cal. Penal Code § 188.

                                 III

    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.6      According to Rivera-Muniz,
California’s inclusion of imperfect self-defense within the
definition of voluntary manslaughter makes that offense
broader than the generic definition of voluntary manslaughter,
and, accordingly, not a categorical crime of violence. We
disagree with both reasons and hold that California Penal
Code section 192(a) categorically matches the contemporary,
generic definition of manslaughter.




    6
       The California Supreme Court has recognized that the terms
“unreasonable self-defense” and “imperfect self-defense” are
interchangeable. See People v. Elmore, 325 P.3d 951, 955 (Cal. 2014).
8            UNITED STATES V. RIVERA-MUNIZ

                               A

    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 recklessness,
while 18 U.S.C. § 16 requires “proof of an intentional use of
force or a substantial risk that force will be intentionally used
during its commission.” Quijada-Aguilar, 799 F.3d at 1306.
Unlike 18 U.S.C. § 16(a), which defines crimes of violence
as those involving the “use, attempted use, or threatened use
of physical force,” the Sentencing Guidelines provide two
avenues by which a crime can constitute a crime of violence.
First, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) enumerates several
offenses that constitute crimes of violence per se. Gomez-
Leon, 545 F.3d at 788. Second, § 2L1.2 cmt. n.1(B)(iii)
contains a “residual clause” that encompasses crimes that
have “as an element the use, attempted use, or threatened use
of physical force.” The residual clause is “materially the
same as the elements test from 18 U.S.C. § 16(a) and is
subject to the same construction, which means that it covers
only convictions for an offense that requires proof of the
intentional use of force.” Id. (footnote omitted).

    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.
               UNITED STATES V. RIVERA-MUNIZ                          9

    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.”7 Id. at 788. Therefore, if the
predicate offense is manslaughter, “the underlying conviction
need not be for an offense that involves the intentional use of
force.” Id. at 789. Thus, Rivera-Muniz’s argument that a
conviction under section 192(a) is not a crime of violence
because it permits a conviction for voluntary manslaughter
with a mens rea of recklessness is only relevant if the generic
definition of voluntary manslaughter requires something
more than recklessness.

    “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


    7
      Gomez-Leon references an older version of U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii) that was amended in 2008. See U.S. Sentencing Guidelines
Manual app. C, amend. 722, at 301–02 (U.S. Sentencing Comm’n 2011).
The amendments, however, did not eliminate the list of enumerated
offenses, and left unchanged the enumerated offense of manslaughter. See
id.
10           UNITED STATES V. RIVERA-MUNIZ

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 a mental state of
either intent to kill or recklessness.”); 2 Wayne R. LaFave,
Substantive Criminal Law, § 15.4(a) (2d ed. 2007).

    Under California law, a mens rea of at least recklessness
is required to sustain a voluntary manslaughter conviction.
See People v. Lasko, 999 P.2d 666, 672 (Cal. 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.

                                B

    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:

        Manslaughter is the unlawful killing of a
        human being without malice. It is of two
        kinds:
               UNITED STATES V. RIVERA-MUNIZ                         11

         Voluntary—Upon a sudden quarrel or heat of
         passion.

         Involuntary—In the commission of an
         unlawful act not amounting to a felony, or in
         the commission in an unlawful manner, or
         without due caution and circumspection, of a
         lawful act which might produce death.

California Penal Code section 192 reads:

         Manslaughter is the unlawful killing of a
         human being without malice. It is of three
         kinds:

         (a) Voluntary-upon a sudden quarrel or heat
         of passion.

         (b) Involuntary-in the commission of an
         unlawful act, not amounting to a felony; or in
         the commission of a lawful act which might
         produce death, in an unlawful manner, or
         without due caution and circumspection. . . .

         (c) Vehicular[.]

Because Rivera-Muniz’s conviction was under section
192(a), we need only concern ourselves with the definition of
voluntary manslaughter.8




     8
       We have previously held that a conviction under section 192(c)(3)
is not a categorical crime of violence. Gomez-Leon, 545 F.3d at 795–96.
12           UNITED STATES V. RIVERA-MUNIZ

    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, 325 P.3d 951, 957 (Cal.
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 danger of
death or great bodily harm. In this circumstance, the offense
is classed as voluntary manslaughter.”); see also United
States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994) (“Intent
without malice, not the heat of passion, is the defining
characteristic of voluntary manslaughter.”). He also ignores
scholarly commentary suggesting that the generally accepted
definition of voluntary manslaughter includes the concept of
unreasonable self-defense. See 2 LaFave, supra, § 15.3(a)
(collecting cases and statutes making unreasonable self-
             UNITED STATES V. RIVERA-MUNIZ                  13

defense a variant of voluntary manslaughter); Elizabeth D.
Lauzon, Annotation, Propriety of Lesser-Included-Offense
Charge of Voluntary Manslaughter, 3 A.L.R. 6th 543
(originally published in 2005) (“Voluntary manslaughter has
generally been defined, under common law and various state
statutes, as the intentional, unlawful killing of a human being
by another human being as a result of an honest but
unreasonable belief in the need to exercise self-defense
(unreasonable/imperfect self-defense theory) or as the
intentional, unlawful killing of a human being by another
human being in a sudden heat of passion due to serious
provocation (heat-of-passion theory).”).

    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.

                              IV

    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.

   AFFIRMED.
