                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3179
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Jose Malagon-Soto

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                              Submitted: April 18, 2014
                               Filed: August 22, 2014
                                   ____________

Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

       Jose Malagon-Soto pled guilty to illegal reentry by a previously removed alien,
under 8 U.S.C. § 1326(a) and (b)(1). At sentencing, the district court determined that
Malagon-Soto qualified for a 16-level enhancement in his offense level pursuant to
United States Sentencing Guidelines Manual (USSG) § 2L1.2(b)(1)(A)(ii), due to a
prior conviction for second degree manslaughter in Kentucky. After applying the
enhancement, the district court1 calculated a guideline range of 41–51 months and
sentenced him to 36 months in prison. Malagon-Soto appeals his sentence and, more
specifically, the application of § 2L1.2(b)(1)(A)(ii) in determining his guidelines
range. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I. Background

       On August 24, 1999, Malagon-Soto was convicted of second degree
manslaughter in Kentucky, after killing another driver in a head-on collision while
driving under the influence of alcohol. After serving his sentence, Malagon-Soto was
deported to Mexico in April 2008. In January 2013, Malagon-Soto pled guilty to
illegally reentering the United States. At sentencing, Malagon-Soto objected to the
sentencing guideline calculation in his Presentence Investigation Report (PSR), which
included a 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii), due to his
1999 conviction for manslaughter. The district court overruled his objection, applied
the enhancement, and determined his sentencing range to be 41–51 months. The
district court then granted a downward variance, sentencing Malagon-Soto to 36
months in prison. Malagon-Soto appeals the applicability of the enhancement.

                                   II. Discussion

       Malagon-Soto argues that the district court erred in applying the 16-level
enhancement because his 1999 manslaughter conviction does not qualify as a “crime
of violence” under the sentencing guidelines. “Improperly calculating a guideline
range is a significant procedural error.” United States v. Godsey, 690 F.3d 906, 909
(8th Cir. 2012) (citation omitted). “We review the district court’s construction and




      1
       The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

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application of the guidelines de novo and its factual findings for clear error.” Id.
(quotation omitted).

        Sentencing Guideline § 2L1.2(b)(1)(A)(ii) allows for a 16-level enhancement
if the defendant has a prior conviction for a crime of violence. The guidelines define
“crime of violence” as:

       [A]ny 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.

USSG § 2L1.2 cmt. n.1(B)(iii). Thus, there are two categories of crimes of violence
under this provision: (1) the enumerated offenses, and (2) those meeting the catchall
provision for “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.” Id.

       “This court employs a categorical approach to determine whether a prior
offense qualifies as [an enumerated offense] under the guidelines.” United States v.
Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008); see also Shepard v. United
States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990). We look
“to the ‘statutory definition of the prior offense,’ not the underlying facts of the crime,
to determine whether the statute proscribes the generic elements of [the offense].”
Medina-Valencia, 538 F.3d at 833 (quoting Taylor, 544 U.S. at 602). 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

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federal offense of manslaughter requires at least a mens rea of recklessness. United
States v. Roblero-Ramirez, 716 F.3d 1122, 1126–27 (8th Cir. 2013).

       On appeal, Malagon-Soto does not dispute that he committed an enumerated
crime—manslaughter. He also does not attempt to discuss the categorical approach
or argue the elements of his manslaughter conviction fail to meet the elements of the
generic federal offense of manslaughter. He did not raise such arguments in the
district court either. In fact, Malagon-Soto concedes in his brief on appeal “that
manslaughter is a ‘listed’ prior conviction and would seem to require a mechanical
application of” USSG § 2L1.2 cmt. n.1(B)(ii). Instead, Malagon-Soto argues that
even the enumerated offenses in § 2L1.2 must include a “use of force” element, an
element that necessarily requires the intent to use force against another person. Thus,
he asserts, the 16-level enhancement does not apply because his 1999 manslaughter
conviction did not include as an element the “use of force.”

       To support his argument, Malagon-Soto points to Leocal v. Aschcroft, 543 U.S.
1 (2004), and United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007), which
interpreted the phrase “crime of violence” as defined in 18 U.S.C. § 16. In Leocal,
the Court determined that a “crime of violence,” under § 16,2 required “the use of
physical force against the person or property of another (or the risk of having to use
such force in committing a crime) . . . .” Leocal, 543 U.S. at 11. The intent necessary
to use force against another (e.g., the act of pushing) is distinguishable from the mere
application of force (e.g., stumbling or falling into another), and thus the use of force
required for a crime of violence, under § 16, includes some level of intent to use
force against another that is greater than mere negligence and more specific than “the
possibility that harm will result from a person’s conduct . . . .” Id. 543 U.S. at 10.



      2
       Leocal was specifically interpreting the meaning of an “aggravated felony” in
8 U.S.C. § 1101(a)(43), which includes “a crime of violence . . . as defined in section
16 of Title 18 . . . .” See Leocal, 543 U.S. at 5.
                                          -4-
       In Torres-Villalobos, we considered whether the crime of second degree
manslaughter, as defined in Minnesota, fit the § 16 definition of use of force as
interpreted by Leocal. In doing so, we found a difference between the intent required
to constitute a use of force and the intent required for the underlying crime. We held
that “second-degree manslaughter [does not] involve a risk that the perpetrator will
intentionally use physical force in the course of committing the offense.”
Torres-Villalobos, 487 F.3d at 616–17. “A perpetrator’s knowing disregard of a
serious risk of injury, as required by the Minnesota manslaughter statute, is different
from a robber or burglar ignoring the risk that he may resort to the intentional use of
force in committing the offense.” Id. at 617. Thus, we distinguished between the
intent required to commit the crime of manslaughter—recklessness—and the more
specific intent required for that crime to involve a “use of force.”

       Malagon-Soto argues that it would be inconsistent to hold that a crime of
violence as defined in 18 U.S.C. § 16 requires a “use of force” while holding that a
crime of violence under USSG § 2L1.2(b)(1)(A)(ii) does not. He suggests the
meaning of a crime of violence should be consistent across these applications and that
the “tenor of . . . § 2L1.2(b)(1)(A)[(ii)] is that a ‘crime of violence’ is an offense that
involves the active or attempted intentional use or employment of physical force in
the accomplishment of the offense (the same standard that forms the basis of Leocal
and Torres-Villalobos).” Thus, Malagon-Soto argues that to harmonize the
definitions and the caselaw, we should read into the enumerated crimes in
§ 2L1.2(b)(1)(A)(ii) a requirement of use of force with its attendant (and more
specific) mens rea.

      This argument is foreclosed by our precedent. In United States v. Paz, 622
F.3d 890 (8th Cir. 2010), this court addressed whether a use of force was required for
the enumerated offenses in § 2L1.2(b)(1)(A)(ii). We specifically held that:
“[E]numerated offenses are always classified as ‘crimes of violence,’ regardless of
whether the prior offense expressly has an element the use, attempted use, or

                                           -5-
threatened use of physical force against the person of another.” Paz, 622 F.3d at 892
(citing USSG app. C, amendment 658 (2003)). “Because enumerated offenses are
crimes of violence regardless of whether force was used, the catch-all definition of
a ‘crime of violence’ in the commentary to U.S.S.G. § 2L1.2 is irrelevant.” Id. Thus,
even if we might agree in principle that the definition of “crime of violence” in 18
U.S.C. § 16, as interpreted in Leocal to require a use of force, is inconsistent with
another definition of a “crime of violence” in § 2L1.2, any such inconsistency is not
a problem of interpretation but rather one of drafting. Consequently, the district court
did not err in applying the 16-level enhancement.

                                   III. Conclusion

      For the reasons stated above, the district court is affirmed.
                      ______________________________




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