                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3832
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                             Reynaldo Roblero-Ramirez

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                              Submitted: April 10, 2013
                                Filed: June 17, 2013
                                   ____________

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

RILEY, Chief Judge.

       Reynaldo Roblero-Ramirez pled guilty to reentering the United States illegally
after being deported for an aggravated felony conviction, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court imposed a sixteen level sentence enhancement
under United States Sentencing Guidelines (U.S.S.G. or Guidelines)
§ 2L1.2(b)(1)(A)(ii) after finding that Roblero-Ramirez previously had been convicted
of a crime of violence. Because Roblero-Ramirez’s 2006 Nebraska conviction for
manslaughter was not a conviction for a crime of violence within the meaning of the
applicable Guideline, we reverse and remand for resentencing.

I.     BACKGROUND
       A.    Factual Background
       On May 25, 2011, Fayetteville, Arkansas, Police Department officers
(Fayetteville officers), encountered Roblero-Ramirez, a Guatemalan citizen, while
investigating a domestic disturbance. United States Immigration and Customs
Enforcement (ICE) officers alerted the Fayetteville officers that Roblero-Ramirez was
suspected of immigration violations. The Fayetteville officers arrested Roblero-
Ramirez on a state charge for obstructing governmental operations, and released him
into ICE custody on May 26, 2011.

        Roblero-Ramirez told the ICE officers he had illegally reentered the United
States in February 2010, after having been deported. The ICE officers reviewed
Roblero-Ramirez’s alien registration file, which indicated Roblero-Ramirez was
removed from this country on May 3, 1996; July 21, 2000; and January 3, 2008. The
file also revealed that in March 2006, Roblero-Ramirez was sentenced after pleading
guilty in Nebraska state court to manslaughter, in violation of Nebraska Revised
Statute § 28-305.

       B.     Procedural History
       Roblero-Ramirez pled guilty to illegal reentry into the United States after being
deported for an aggravated felony conviction (manslaughter), in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court conducted a thorough survey of the fifty
states’ and the federal manslaughter laws. The district court then focused on Nebraska
Revised Statute § 28-305 where it described “the offense of killing another person
without malice upon a sudden quarrel.” The district court concluded under its analysis
“that [the § 28-305] definition squarely comports with the generic definition of
manslaugter as it’s adopted in a majority of the states.” Over Roblero-Ramirez’s

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objection, the district court at sentencing increased Roblero-Ramirez’s base offense
level by sixteen levels, reasoning Roblero-Ramirez’s 2006 Nebraska manslaughter
conviction constituted a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). With
this increase, the district court calculated an advisory Guidelines range of 46 to 57
months (level 21, category III). The district court sentenced Roblero-Ramirez to 46
months imprisonment.

       The assistant federal public defender (FPD) representing Roblero-Ramirez on
appeal filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), asking
this court “to determine whether there exist[] any non-frivolous issues for appeal” and
moved to withdraw from representing Roblero-Ramirez. We denied the FPD’s
motion to withdraw, stating “a nonfrivolous issue exists as to whether the crime of
manslaughter under the relevant Nebraska statute, as defined by the Nebraska courts
at the time of Roblero-Ramirez’s conviction, comported with the generic,
contemporary definition of manslaughter.” The FPD filed a merits brief consistent
with our order, requesting oral argument “only if the Court deems it necessary to assist
in its decisional process.” On March 8, 2013, we scheduled this case for oral
argument. On March 18, the FPD moved to waive oral argument. We granted this
motion and accepted the case on the briefs, without oral argument.

II.    DISCUSSION
       A.    Standard of Review and Applicable Law
       Roblero-Ramirez argues the district court erred in imposing the sixteen level
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Roblero-
Ramirez’s Nebraska manslaughter conviction was not a “crime of violence” as the
term is used in the Guideline. We review this question of law de novo. See United
States v. Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008).                          Under
§ 2L1.2(b)(1)(A)(ii), “[i]f the defendant previously was deported, or unlawfully
remained in the United States, after . . . a conviction for a felony that is . . . a crime of
violence,” the sentencing court should increase the defendant’s base offense level by

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sixteen levels. The commentary on this provision explains the phrase “crime of
violence” includes a manslaughter conviction “under federal, state, or local law.” Id.
cmt. n.1(B)(iii).1

       B.    Categorical Approach
       We determine whether a prior conviction constitutes manslaughter under this
Guideline using a categorical approach. See Medina-Valencia, 538 F.3d at 833.
“Under this 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. Moncrieffe v.
Holder, 596 U.S. ___, ___, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186 (2007)). 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.” Taylor v. United States, 495 U.S. 575, 598 (1990).

        The categorical approach ensures the defendant’s prior conviction “necessarily
involved facts equating to the generic federal offense.” Moncrieffe, 569 U.S. at ___,
133 St. Ct. at 1684 (quoting Shepard v. United States, 544 U.S. 13, 24 (2005))
(alterations and quotation marks omitted). We only consider the statutory elements
of the prior offense, not the underlying conduct, so “we must presume that the
conviction ‘rested upon nothing more than the least of the acts’” proscribed by the
state law “and then determine whether even those acts are encompassed by the generic
federal offense.” Id. at 1684-85 (quoting Johnson v. United States, 559 U.S. 133, 137


      1
       The comment also defines “crime of violence” to include “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.” The government has
not proposed Roblero-Ramirez’s crime of conviction qualifies as a crime of violence
under this catch-all provision, so we do not consider that issue. See United States v.
Greene, 513 F.3d 904, 906-07 (8th Cir. 2008) (deciding the government waived an
argument it did not raise at sentencing or in its opening appellate brief).

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(2010)) (alteration omitted). “Whether the noncitizen’s actual conduct” was sufficient
to satisfy this generic federal definition “‘is quite irrelevant.’” Id. at 1684 (quoting
United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939) (L. Hand, J.)).
Thus, the categorical approach “asks what offense the noncitizen was ‘convicted’ of,
not what acts he committed.” Id. at 1685 (internal citation omitted).

       When a state statute of conviction is overinclusive, meaning the statute
proscribes conduct that is consistent with the generic federal offense as well as
conduct that is not, we apply the modified categorical approach to determine which
of several, separately described crimes encompassed by the statute formed the basis
of the defendant’s conviction. See id. at 1684-85; Medina-Valencia, 538 F.3d at 833.
Even under this modified approach, we do not consider what the defendant’s actual
conduct might have been. See id. We look only “to the charging documents, plea
agreement, jury instructions, or comparable judicial records to determine whether the
prior offense qualifies” as a crime of violence. Id.

        This categorical approach “serves [the] ‘practical’ purpose[ of] promot[ing]
judicial and administrative efficiency by precluding the relitigation of past convictions
in minitrials conducted long after the fact.” Id. at ___, 133 S. Ct. at 1690 (quoting
Chambers v. United States, 555 U.S. 122, 125 (2009)). This approach also avoids
“‘potential unfairness’” to defendants who might have difficulty establishing in a
subsequent federal action the factual circumstances upon which the prior state
conviction was based. Id. (quoting Taylor, 495 U.S. at 601). Even so, the categorical
approach “is not an invitation to apply ‘legal imagination’ to the state offense; there
must be ‘a realistic probability, not a theoretical possibility, that the State would apply
its statute to conduct that falls outside the generic definition of a crime.’” Id. at ___,
133 S. Ct. at 1684-85 (quoting Duenas-Alvarez, 549 U.S. at 193).




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       C.     Crime of Violence
       Nebraska Revised Statute § 28-305 provides “[a] person commits manslaughter
if he kills another without malice, either upon a sudden quarrel, or causes the death
of another unintentionally while in the commission of an unlawful act.” This statute
proscribes two separate offenses: “sudden quarrel” manslaughter and “unlawful act”
manslaughter. See State v. Pettit, 445 N.W.2d 890, 896 (Neb. 1989). The parties
agree Roblero-Ramirez was convicted under the sudden quarrel provision. Under the
categorical approach, we must decide whether Nebraska’s sudden quarrel prohibition
fits within the definition of generic federal manslaughter. See Medina-Valencia, 538
F.3d at 833.

       Roblero-Ramirez contends generic federal manslaughter requires intentional or
reckless conduct, whereas the Nebraska statute criminalizes involuntary killing, i.e.,
unintentional conduct. The government agrees generic federal manslaughter requires,
at least, a mens rea of recklessness. Our court has not considered the mens rea
requirement for the generic federal manslaughter definition, but a number of our sister
circuits have. All courts to address the issue agree with Roblero-Ramirez that generic
manslaughter requires a mens rea of recklessness, at least. See United States v.
Armijo, 651 F.3d 1226, 1236 (10th Cir. 2011) (deciding generic manslaughter
requires “purposeful or intentional behavior”); United States v. Hernandez-Rojas, 426
F. App’x 67, 70 (3d Cir. 2011) (stating “‘generic, contemporary manslaughter . . .
requires a recklessness mens rea’” (quoting United States v. Dominguez-Ochoa, 386
F.3d 639, 646 (5th Cir. 2004))); United States v. Peterson, 629 F.3d 432, 436-37 (4th
Cir. 2011) (deciding the mens rea required for generic federal manslaughter is
“reckless” or “intentional” conduct); see also United States v. Gomez-Leon, 545 F.3d
777, 791, 795 (9th Cir. 2008) (noting “the modern view appears to be that
recklessness is an element of contemporary manslaughter” and “the notion of
manslaughter is reserved for conduct that includes a more culpable mental state than
mere negligence”). We need not decide at this time whether generic manslaughter
requires “purposeful or intentional behavior,” Armijo, 651 F.3d at 1236, or mere

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“recklessness,” Dominguez-Ochoa, 386 F.3d at 646, because under either standard,
the Nebraska manslaughter offense of which Roblero-Ramirez was convicted is
broader than its generic federal counterpart.

       Until 1994, the Nebraska courts interpreted the sudden quarrel manslaughter
component of § 28-305 to prohibit the intentional killing of another, upon a sudden
quarrel. See State v. Jones, 515 N.W.2d 654, 658 (Neb. 1994) (citing Pettit, 445
N.W.2d at 905). In 1994, the Nebraska Supreme Court in Jones departed from this
formulation. See id. at 658-59. Reasoning “‘the words “voluntary” and “involuntary”
have not been a part of Nebraska’s manslaughter statute since 1873,’” id. at 658
(quoting Pettit, 445 N.W.2d at 912 (Fahrnbruch, J., dissenting)), the Jones court
determined “there is no requirement of an intention to kill in committing
manslaughter. The distinction between second degree murder and manslaughter upon
a sudden quarrel is the presence or absence of an intention to kill,” id. at 659. No
Nebraska case thereafter required a reckless mens rea under the Jones interpretation.
Cf. State v. Woods, 542 N.W.2d 410, 416 (Neb. 1996) (following Jones, and
instructing the district court on remand “to remove the word ‘intent’ from the
manslaughter instruction”). Under the categorical approach, we cannot conclude
Roblero-Ramirez’s Nebraska manslaughter conviction, as interpreted by the Nebraska
Supreme Court at the time, equates to the generic federal crime of manslaughter.

        We recognize the Nebraska Supreme Court later overruled Jones, and reinstated
Pettit, in State v. Smith, 806 N.W.2d 383, 394 (Neb. 2011) (holding “an intentional
killing committed without malice upon a ‘sudden quarrel,’ as that term is defined by
our jurisprudence, constitutes the offense of manslaughter”). Although a Nebraska
manslaughter conviction under the Smith-Pettit interpretation probably meets the
mens rea requirement for generic federal manslaughter, see Armijo, 651 F.3d at 1236,
the Smith-Pettit interpretation was not Nebraska law when Roblero-Ramirez was
convicted in 2006.



                                         -7-
        We also recognize the district court was not made aware, during its thorough
sentencing analysis, of the Nebraska Supreme Court’s unusual interpretation in 2006
of manslaughter under § 28-305. Roblero-Ramirez’s federal public defender advised
the district court that no precedent allowed the court to “look at case law such as the
. . . Nebraska v. Smith case.” However, the Nebraska manslaughter law for sudden
quarrel in 2006 was overinclusive.

       The district court’s imposition of a sixteen level criminal history category
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) was a “‘non-harmless error,’”
United States v. Tomac, 567 F.3d 383, 386 (8th Cir. 2009) (quoting United States v.
Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008)) (alteration omitted). Roblero-Ramirez
is entitled to a new sentencing. See United States v. Barrientos, 670 F.3d 870, 873
(8th Cir. 2012) (remanding for resentencing because the district court incorrectly
calculated the defendant’s criminal history points under the Guidelines).

III.  CONCLUSION
      We reverse and remand for resentencing, consistent with the Nebraska Supreme
Court’s manslaughter precedent at the time of Roblero-Ramirez’s 2006 conviction and
with our opinion today. On remand, the district court may apply further the modified
categorical approach as may be appropriate.
                       ______________________________




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