     Case: 13-20482   Document: 00512944783      Page: 1   Date Filed: 02/23/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                 No. 13-20482                             FILED
                                                                   February 23, 2015
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA                                                  Clerk

                                            Plaintiff-Appellee
v.

JUAN GARCIA-PEREZ, also known as Juan Garcia, also known
as Johnny Garcia, also known as Guadalupe Garcia

                                            Defendant-Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Juan Garcia-Perez was convicted of being illegally in the United States
after deportation following commission of an aggravated felony. The district
court applied a 16-level increase to the base offense level because it determined
Mr. Garcia-Perez’s prior manslaughter conviction was a “crime of violence”
under Sentencing Guideline § 2L1.2(b)(1)(A). Mr. Garcia-Perez argues that
manslaughter as defined by the Florida statute of conviction does not qualify
as a crime of violence, and thus the increase was error. We agree, vacate, and
remand for resentencing.
                                       I.
      Juan Garcia-Perez was brought to the United States as an infant in
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                                       No. 13-20482
1969.       In 1996, Mr. Garcia-Perez pled no contest to manslaughter under
Florida Statute § 782.07. He was deported and re-entered the United States
several times. In 2013, Mr. Garcia-Perez pled guilty without a plea agreement
to being an alien unlawfully present in the United States after deportation
following an aggravated felony.           The probation officer calculated the base
offense level as 8 under United States Sentencing Guidelines § 2L1.2(a) (2012)
and increased the base level by 16 under § 2L1.2(b)(1)(A)(ii) because she found
that the 1996 Florida manslaughter conviction was a “crime of violence.” After
an acceptance of responsibility adjustment, the final offense level was 21.
        Mr. Garcia-Perez objected to the 16-level increase in the PSR on the
ground that manslaughter as defined by the Florida statute was not a “crime
of violence.”     At sentencing, defense counsel renewed Mr. Garcia-Perez’s
objection, but the district court overruled it. The court sentenced Mr. Garcia-
Perez to 87 months in prison, the top of the guideline range, noting that it was
tempted to depart upwards, but not doing so. 1
                                              II.
        “Generally, this Court reviews the district court's application of the
Sentencing Guidelines de novo…. When a defendant objects to his sentence on
grounds different from those raised on appeal, we review the new arguments
raised on appeal for plain error only.” 2 In contrast, an argument is preserved
when the basis for objection presented below “gave the district court the




        1ROA.68
        2United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). Objections
supported below by a given argument cannot preserve a completely different argument on
appeal. See, e.g., United States v. Tang, 718 F.3d 476, 480-82 (5th Cir. 2013) (argument below
that restriction would prevent defendant accessing Internet did not preserve argument on
appeal that district court failed to explain the reasons for the restriction); United States v.
Ellis, 720 F.3d 220, 224, 227 (5th Cir. 2013) (argument below that restriction imposed was
excessive did not preserve argument on appeal that restriction was vague).
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                                       No. 13-20482
opportunity to address” the gravamen of the argument presented on appeal. 3
The “objection must be sufficiently specific to alert the district court to the
nature of the alleged error and to provide an opportunity for correction.” 4
       The government argues that Mr. Garcia-Perez has changed his
argument on appeal, and that we should review only for plain error. We
disagree. On appeal, as below, Mr. Garcia-Perez argues that the 16-level
increase did not apply because the prior conviction which qualified him for the
enhancement was not a “crime of violence” under the Sentencing Guidelines.
Both below and on appeal, his argument was that Florida’s manslaughter
definition has no element of force and is not equivalent to “generic
contemporary manslaughter.”              While his argument has been refined on
appeal, 5 its essence was fairly presented to the district court. As such, we
review de novo.
                                             III.
       United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2012)
provides for a 16-level increase if “the defendant previously was deported …
after … a crime of violence.” 6 As the proponent of the increase, it is the
government’s burden to establish “a factual predicate justifying [the]




       3  United States v. Ocana, 204 F.3d 585, 588-89 (5th Cir. 2000) (argument preserved
where, although defendant “did not specifically cite to the USSG section which the PSR
applied, she did make a general objection that notified the court of her disagreement with
the use of [a prior] offense in her sentencing”); see also, e.g., United States v. Cortez-Rocha,
552 F. App'x 322, 324 (5th Cir. 2014) (objection to crime-of-violence enhancement preserved
issue for appeal, although it was “short of the specific articulation and citation to authority
of the arguments before us”).
        4 United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
        5 Most saliently, in his earlier objection Mr. Garcia-Perez took no position on which of

the three ways of committing Florida manslaughter was the “least culpable” and addressed
them all. On appeal, he takes a position on which prongs represent the “least culpable” acts
under the statute and focuses on those prongs.
        6 Other prior felony convictions receive smaller increases. United States Sentencing

Guidelines Manual § 2L1.2(b)(1)(B)-(D) (2012).
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sentencing adjustment, here that the offense constitutes a crime of violence.” 7
An offense may qualify as a crime of violence for these purposes in one of two
ways: it must either have an element of force or it must fall within the “generic
contemporary meaning” 8 of one of the specifically listed offenses. 9 Thus, if the
Florida manslaughter offense either has an element of force or falls within the
generic contemporary meaning of the term “manslaughter,” which appears in
the list of qualifying offenses, it is a crime of violence.
       In determining whether the Florida offense qualifies for the
enhancement, “we look to state law to determine the offense's nature and
whether its violation is a crime of violence under federal law.” 10 We also “‘look[]
to the elements of the crime, not to the defendant's actual conduct in
committing it.’” 11 Thus we focus on the statute of conviction, though we may
also consult “charging papers to see which of [] various statutory alternatives
were involved in a particular case.” 12 Here, the parties agree that the statute
of conviction is Florida Statute § 782.07(1). At the time of the offense, it stated:
       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


       7 United States v. Herrera-Alvarez, 753 F.3d 132, 135 (5th Cir. 2014) (internal brackets
omitted) (quoting United States v. Bonilla, 524 F.3d 647, 655 (5th Cir.2008)); see also United
States v. Hagman, 740 F.3d 1044, 1048 (5th Cir. 2014) (“‘The government must prove
sentencing enhancements by a preponderance of the evidence.’”); United States v. Herrera-
Solorzano, 114 F.3d 48, 50 (5th Cir. 1997) (“The burden is on the party seeking to adjust the
sentence level to prove ‘by a preponderance of the relevant and sufficiently reliable evidence
the facts necessary to support the adjustment.’”).
       8 See Part III.B infra.
       9 See United States Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii); United

States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir. 2002).
       10 Herrera-Alvarez, 753 F.3d at 137 (quoting United States v. Martinez–Flores, 720

F.3d 293, 297 (5th Cir.2013)).
       11 United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir. 2010) (quoting United

States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc); see also Herrera-Alvarez,
753 F.3d at 137-38.
       12 Andino-Ortega, 608 F.3d at 309 (quoting Calderon-Pena, 383 F.3d at 258); see also

Herrera-Alvarez, 753 F.3d at 138.
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                                       No. 13-20482
       not be excusable homicide or murder, according to the provisions
       of this chapter, shall be deemed manslaughter and shall constitute
       a felony of the second degree…. 13

The current version of the section has been amended slightly for form, but
remains essentially the same.
                                              A.
       We first consider whether the Florida manslaughter offense has an
element of force. 14 In order to qualify an offense as a crime of violence under
the force prong, “the intentional use of force must be a constituent part of [the
prior offense] that must be proved” to convict. 15 “The ‘force’ necessary under
this provision must rise to the level of ‘destructive or violent force.’” 16
       Florida courts have repeatedly set out the elements that must be proved
to convict under the manslaughter statute, and an element of force makes no
appearance. Rather, the state must show that “(1) the victim is dead, (2) the
death was caused by the act, procurement or culpable negligence of the
defendant, and (3) the killing was not justified or excusable homicide.” 17 A
Florida manslaughter conviction simply does not require proof of force.
       Bolstering this conclusion, we have previously held that an “injury to a



       13  Fla. Stat. § 782.07(1) (1995).
       14  Mr. Garcia-Perez argues that it does not, and the government does not attempt to
show otherwise.
        15 United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (internal

quotation marks omitted); see also United States v. Castaneda, 740 F.3d 169, 172-73 (5th Cir.
2013) (unpublished) (finding that a Texas burglary statute did not contain “as an element
the use, attempted use, or threatened use of force”).
        16 Herrera-Alvarez, 753 F.3d at 137.
        17 State v. Richards, 639 So. 2d 680, 681 (Fla. Dist. Ct. App. 1994); see also

Cunningham v. State, 385 So. 2d 721, 722 (Fla. Dist. Ct. App. 1980) (“[T]he two affirmative
elements … are (1) the killing; and (2) a causative link between the death of the victim and
the act, procurement, or culpable negligence of another.”); see also State v. Montgomery, 39
So. 3d 252, 256 (Fla. 2010) (“[W]here one commits an act that results in death, and such an
act is not lawfully justified or excusable, it is manslaughter.”); Eversley v. State, 748 So. 2d
963, 965-66 (Fla. 1999) (defining elements of culpable negligence manslaughter).
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child” offense defined in terms of the causation of injury by intentional act did
not contain a force element. 18 This was because “[i]f any set of facts would
support a conviction without proof of that [force] component, then the
component most decidedly is not an element … of the crime.” 19 Intentional
injury to a child could be committed by poison, for example, which would not
be “use of physical force” for these purposes. 20 This holding logically extends
to offenses defined in terms of the causation of death, such as the Florida
statute at issue. We find that § 782.07(1) does not have an element of force.
                                             B.
       We now turn to the second, closer question: whether Florida’s
manslaughter provision falls within the list of enumerated “crimes of violence”
for purposes of §2L1.2(b)(1)(A).          “Manslaughter” is one of the Guidelines
Manual’s listed “crimes of violence” which qualify for the contested
enhancement, 21 but that observation does not end our inquiry. Rather, we
must determine what the Sentencing Guidelines mean by the term
“manslaughter” and then decide whether the Florida manslaughter offense
falls within that definition. 22 The parties’ dispute centers on the mental state
required with respect to death by the Florida manslaughter statute, so we focus
our discussion on that issue.
       Because the Guidelines Manual does not define “manslaughter” as it
applies to the crime of violence enhancement at issue, “we must define it
according to its generic contemporary meaning, and should rely on a uniform


       18 Andino-Ortega, 608 F.3d at 310-311.
       19 Id. at 311 (quoting Vargas-Duran, 356 F.3d at 605).
       20 Id.; see also Herrera-Alvarez, 753 F.3d at 138-39 (discussing the element of force

and poison with regard to a Louisiana aggravated battery statute).
       21 United States Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii).
       22 See United States v. Bonilla, 524 F.3d 647, 655 (5th Cir. 2008) (finding New York

offense was not a “crime of violence” where it “criminalize[d] a broader range of conduct than
that encompassed by the generic, contemporary offense of manslaughter”).
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                                       No. 13-20482
definition, regardless of the labels employed by the various States’ criminal
codes.” 23 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—“conscious disregard of perceived homicidal
risk.” 24
                                              1.
       We proceed to compare the mental state required by generic
contemporary manslaughter to that required by the Florida manslaughter
statute of conviction. The parties agree that Mr. Garcia-Perez may have been
convicted of manslaughter by act, by procurement, or by culpable negligence.
Because the conviction may rest on any one of these three methods, 25 we must
determine whether the “least culpable” of the three qualifies as generic
contemporary manslaughter. 26            If the least culpable prong of § 782.07(1)
requires either recklessness as to death or intent to kill, then the section as a
whole falls within the definition of generic contemporary manslaughter and
there was no error in imposing the enhancement.
       In Chan-Gutierrez, an unpublished opinion, we held that “[t]he least
culpable act under the Florida manslaughter statute is manslaughter by




       23  United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004) (internal
quotation marks and citations omitted) (referring to the same guideline in the 2002 edition
of the manual). In determining the generic contemporary meaning, we look to sources “such
as the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary
definitions.” Herrera-Alvarez, 753 F.3d at 137 (internal quotation marks omitted).
        24 Bonilla, 524 F.3d at 654 (citing Dominguez-Ochoa, 386 F.3d at 642, 645-46).
        25 See, e.g., Government Br. 26 (“[I]t is unclear from the “charging document, written

plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial
judge to which the defendant assented” what subpart of the statute the defendant
violated….”) (quoting United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008)).
        26 See Moreno-Florean, 542 F.3d at 449 (“If the statute of conviction cannot be

narrowed, we consider ‘whether the least culpable act constituting a violation of that statute
constitutes ‘kidnapping’ for purposes of U.S.S.G. § 2L1.2.’”) (citing United States v. Gonzalez-
Ramirez, 477 F.3d 310, 315-16 (5th Cir. 2007)).
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                                       No. 13-20482
culpable negligence” and that “culpable negligence” is equivalent to generic
contemporary manslaughter’s “recklessness” requirement. 27                         No party
challenges the holding that culpable negligence is equivalent to recklessness.
Instead, Mr. Garcia-Perez argues that Chan-Gutierrez was mistaken in
holding culpable negligence manslaughter to be the least culpable act under
§ 782.07(1).       To the contrary, he argues that act and procurement
manslaughter are less culpable conduct and fall outside of “generic
contemporary manslaughter” because they do not require recklessness as to
death or intent to kill.
                                              2.
                                              a.
       To determine the mental state required for commission of manslaughter
by act, 28 we turn to Florida case law. In line with earlier cases, 29 the Florida
Supreme Court recently confirmed in Montgomery that manslaughter by act
does not require “that the defendant intend to kill the victim. Instead … where
one commits an act that results in death, and such an act is not lawfully
justified or excusable, it is manslaughter.” 30 Driving home the point, the court
restated its holding: “the intent which the State must prove for the purpose of
manslaughter by act is the intent to commit an act that was not justified or




       27   United States v. Chan-Gutierrez, 368 F. App'x 536, 538 (5th Cir. 2010).
       28   Because Mr. Garcia-Perez’s procurement-prong argument is based on a logical
extension of his act-prong argument, we focus on manslaughter by act. See Garcia-Perez
Initial Br. 26-27.
         29 See the cases discussed in Part III.B.2.b infra.
         30 State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010). Before 2010, some Florida

courts had interpreted Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983) to stand for the
principle that intent to kill was required to prove act manslaughter. See Montgomery v. State,
70 So. 3d 603, 604-06 (Fla. Dist. Ct. App. 2009) (noting and explaining the split in authority).
State v. Montgomery dispelled this confusion, which arose from statements about intent to
kill, attempt, and voluntary versus involuntary manslaughter. See id.
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                                       No. 13-20482
excusable, which caused the death of the victim.” 31
                                              b.
       Montgomery makes clear that intent to kill is not required to prove act
manslaughter; it does not state whether recklessness as to the risk of death is
required. The silence as to recklessness in Montgomery leaves undisturbed a
line of cases stretching back over one hundred years which have held that
unexpected deaths caused by intended acts can be enough to prove
manslaughter.
       In 1892 in Baker v. State, considering an earlier, but similar, 32
manslaughter statute, the Florida Supreme Court rejected the idea that death
“must have been not only directly or indirectly caused by the acts of the
defendant, but must have been such as to be one of the reasonable or probable
results of such acts.” 33 Rather, “the fact that it could not reasonably have
occurred to the defendant, or did not occur to him, that death was a probable
result of the act, does not prevent a conviction of manslaughter.” 34 In 1930,
the Florida Supreme Court reaffirmed Baker in a case where a 16-year-old girl
shot her husband in the leg, after which he died of gangrene. The court stated
that “the fact that it did not occur to the defendant that the death … was a




       31  Montgomery, 39 So. 3d at 259-60; see also Haygood v. State, 109 So. 3d 735, 741 (Fla.
2013) (noting that instruction on manslaughter by act was appropriate where “the evidence
in this case supported a finding that [defendant] intentionally committed an act or acts, and
that the act or acts resulted in the victim’s death”).
        32 See Tipton v. State, 97 So. 2d 277, 285 (Fla. 1957) (noting similarities between the

manslaughter statute considered in Baker and the then-contemporary statute, which is in
turn strikingly similar to the present version); Eversley, 748 So. 2d at 965-66 (noting that the
1906 version of the manslaughter statute and the 1995 version contained the same elements);
Maynard v. State, 660 So. 2d 293, 296 (Fla. Dist. Ct. App. 1995) (turning to Baker for guidance
on the required state of mind of the defendant); Rodriguez v. State, 443 So. 2d 286, 289-90 &
n.8 (Fla. 1983) (explaining that the basic definition remained unchanged between 1892 and
1983).
        33 Baker v. State, 11 So. 492, 498 (Fla. 1892).
        34 Id.

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reasonable or probable result of the defendant's assault does not prevent a
conviction of manslaughter.” 35
      In 1957, the Florida Supreme Court decided Tipton v. State 36 which, like
Baker, involved heated words, a battery, and a subsequent death likely related
to the victim’s underlying health condition. The court expressed concern at the
broad wording of the manslaughter statute, 37 and explained that:
      Consideration of the act in its surroundings at the time of its
      commission, not of the results alone, should determine criminal
      responsibility for manslaughter under the Florida homicide
      statute. It is necessary for the act to result in the death of a human
      being under the definition of homicide; but this does not relieve the
      courts of a duty to study the act itself to determine whether the
      punishment for manslaughter should be applied. 38

      Notwithstanding this caution, the court issued a limited holding rather
than drastically altering the interpretation of the manslaughter statute. The
court found that “[t]he statute itself provides [the] guideposts” 39 to determine
what acts should be punished as manslaughter, and analyzed the case in terms
of those statutory exceptions. The court concluded that the battery in Tipton
may have been “excusable homicide” because it constituted a “sudden combat,”
and overruled Baker to the extent that it held the actions in that case were not
excusable “sudden combat.” 40 The court also found the state had not provided
sufficient evidence to prove a causal link between the battery and death. 41
      Tipton signaled that the causation and excuse/justification inquiries
were to be taken seriously. However, the court expressly did not disturb either



      35 Gainer v. State, 129 So. 576, 577 (Fla. 1930).
      36 97 So. 2d 277 (Fla. 1957).
      37 Id. at 281.
      38 Id.
      39 Id.
      40 Id. at 281-82, 285.
      41 Id. at 285.

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Baker’s holding that “the fact that it could not reasonably have occurred to the
defendant, or did not occur to him, that death was the probable result of the
act, does not prevent a conviction of manslaughter” or Gainer’s similar
holding 42 Indeed, the Florida Supreme Court favorably cited Baker again in
1975 in Swan for the proposition that “Criminals take their victims as they
find them.” 43 In the absence of contrary authority, this line of cases establishes
that something less than recklessness as to death is required to prove act
manslaughter.
                                           c.
      In recent years, Florida courts have made clear that the bounds of act
manslaughter are not unlimited. Consistent with Tipton’s serious treatment
of the causation requirement, the Florida Supreme Court explained that
manslaughter convictions require both cause-in-fact and proximate cause
showings. 44 Proximate cause is decided based on an inquiry into “(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.” 45 One
Florida court of appeals has held that both proximate cause prongs are
satisfied where there is medical testimony that a given act “can cause the type
of injury and death which occurred” (first prong), and where none of the
statutory excuses or justifications are present (second prong). 46



      42  Id. at 284 (“[The Baker] holding can be granted as valid without affecting the
decision in the case at bar, therefore we will not discuss Gainer v. State, supra, which
involved the same point.”).
       43 Swan v. State, 322 So. 2d 485, 487 (Fla. 1975).
       44 Eversley v. State, 748 So. 2d 963, 966-67 (Fla. 1999).
       45 Id. at 967.
       46 Weir v. State, 777 So. 2d 1073, 1076 (Fla. Dist. Ct. App. 2001).

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                                       No. 13-20482
       In addition to the causation inquiry, Florida courts have continued to
stress the importance of the excuse and justification exceptions to
manslaughter. Because manslaughter is a “residual offense,” these exceptions
are of fundamental importance to its definition. 47 Killing in defense of self or
others is not manslaughter. 48 Neither is accidental killing in the course of
lawful acts performed “with usual ordinary caution,” accidental killing “in the
heat of passion,” or accidental killing as a result of “sudden combat” without
dangerous weapons. 49 Several cases have focused on defendants who threw a
sudden punch at victims, some in the context of teenage disputes, and found
that such conduct is not covered by any of the excuses. 50
       Both the causation and excuse/justification inquiries limit the scope of
act manslaughter, but neither limits the offense to only acts committed with
conscious disregard of a perceived risk of death. Consistent with these limits,
the Florida courts of appeals have emphasized the state’s causation burden, 51



       47 Montgomery, 39 So. 3d at 258; State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994).
       48 See Fla. Stat. § 782.07(1); Rojas v. State, 552 So. 2d 914, 914 (Fla. 1989) (in
manslaughter case, setting out lower court’s instructions on justifiable homicide and noting
that they “essentially track[] the … Standard Jury Instructions”); Pena v. State, 829 So. 2d
289, 294 (Fla. Dist. Ct. App. 2002) (reciting standard justifiable homicide instruction).
       49 See Fla. Stat. § 782.07(1); Rojas, 552 So. 2d at 914 (in manslaughter case, setting

out lower court’s instruction on excusable homicide which tracked standard jury instruction);
Pena, 829 So. 2d at 294-95 (reciting standard jury instruction for excusable homicide).
       50 See J.J.W. v. State, 892 So. 2d 1189, 1190-92 (Fla. Dist. Ct. App. 2005) (finding that

even if victim was killed by initial single punch of teenage defendant, manslaughter
conviction was sound where there was evidence defendant threw the punch while victim was
unprepared and not a threat); Acosta v. State, 884 So. 2d 112, 115 (Fla. Dist. Ct. App. 2004)
(evidence supported manslaughter verdict where victim killed by a punch by teenage
defendant was unprepared and defendant contemplated fight before it began); Weir, 777 So.
2d at 1075-76 (finding single punch which led to death was not excusable where punch was
sudden and there was no other physical exchange between defendant and victim).
       51 Tyus v. State affirmed a manslaughter conviction where the victim died of heart

attack as a result of defendant’s burglary. The court did not ask whether the defendant
disregarded a known risk but rather whether death was “beyond the scope of any fair
assessment of the danger created.” 845 So. 2d 318, 321-22 (Fla. Dist. Ct. App. 2003).
       Penton v. State found evidence that the theft of a bicycle led to release of fat emboli
and death of the victim was insufficient to support a manslaughter conviction, in part because
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                                        No. 13-20482
as well as the excuse/justification inquiry, 52 but have not undercut Baker’s
holding that unanticipated death can support a negligence conviction. Indeed,
Florida courts of appeal have continued to find that manslaughter can be
committed without conscious disregard of a perceived homicidal risk. 53
       Finally, we note that Florida’s Standard Jury Instructions were
amended in 2011 to exclude from manslaughter “merely negligent act[s].” 54
This change does not on its face purport to limit act manslaughter to only cases
involving conscious disregard of the risk of death. 55                   In any event, the
amendment did not overturn the cases holding that recklessness as to death is
not required to prove manslaughter given that the Florida Supreme Court, in
authorizing the instruction, “express[ed] no opinion on its correctness.” 56


of equivocal medical testimony. 548 So. 2d 273, 274-75 (Fla. Dist. Ct. App. 1989) (basing its
analysis on culpable negligence cases, and part of Tipton that dealt with culpable negligence).
        Todd v. State held that in order to establish causation for manslaughter, the state
must prove at least the legal causation required by tort law. 594 So. 2d 802, 805-06 (Fla.
Dist. Ct. App. 1992). This standard apparently requires the harm to be “foreseeable” but does
not require reckless disregard of a known risk. Id. (listing cases which set out the standard).
        52 See, e.g., J.J.W., 892 So. 2d at 1190-92; Acosta, 884 So. 2d at 115; Weir, 777 So. 2d

at 1075-76; Aiken v. State, 425 So. 2d 641, 643-44 (Fla. Dist. Ct. App. 1983).
        53 See Hall v. State, 951 So. 2d 91, 93, 95-96 (Fla. Dist. Ct. App. 2007) (upholding

manslaughter by act conviction where victim’s death was a “very unusual” reaction to a single
punch to the jaw because it was the unintentional result of an intentional act), abrogated on
different ground, Williams v. State, 123 So. 3d 23 (Fla. 2013); Maynard v. State, 660 So. 2d
293, 296 (Fla. Dist. Ct. App. 1995) (“[T]he fact that the appellant had no way of knowing that
the victim suffered from severe heart disease and that this condition could be fatally
exacerbated by her criminal conduct does not absolve her of liability for manslaughter. …
[T]he fact that it could not reasonably have occurred to the defendant, or did not occur to him,
that death was a probable result of the act, does not prevent a conviction.”) (quoting Baker,
11 So. at 498)). See also supra note 50, listing cases where act manslaughter convictions were
upheld without inquiries into defendants’ mental states as to death.
        54 In re Amendments to Standard Jury Instructions in Criminal Cases--Instruction 7.7,

75 So. 3d 210, 211 (Fla. 2011).
        55 Id. (defining negligence as follows: “Each of us has a duty to act reasonably toward

others. If there is a violation of that duty, without any conscious intention to harm, that
violation is negligence”).
        56 Id. (“In authorizing the publication and use of the instruction, we express no opinion

on its correctness and remind all interested parties that this authorization forecloses neither
requesting additional or alternative instructions nor contesting the legal correctness of the
instruction.”). The instruction had not been amended when Mr. Garcia-Perez was convicted.
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                                       No. 13-20482
                                             3.
       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. The unpublished case relied upon by the government does not
persuade us otherwise. In Chan-Gutierrez, lacking the benefit of the Florida
Supreme Court’s clarifying Montgomery decision, 57 we stated without
explanation that culpable negligence was the least culpable conduct under the
Florida statute. 58 Then, based on analysis of only the culpable negligence
prong, we held that Florida’s manslaughter statute “does not punish any
conduct beyond that covered by ‘generic, contemporary’ manslaughter.” 59
Having now examined the act prong, we are persuaded that Chan-Gutierrez
was mistaken insofar as it held that Florida manslaughter by act punishes only
“generic contemporary manslaughter.”
       Additionally, we note that two federal district courts have held that the
manslaughter offense is a crime of violence for purposes of the career offender
enhancement, but we do not find them persuasive. Johnson v. United States
did not consider the argument that manslaughter by act does not require proof
of recklessness. 60     Cook v. United States based its conclusion entirely on



       57  Montgomery was published one month after Chan-Gutierrez.
       58  United States v. Chan-Gutierrez, 368 F. App'x 536, 538 (5th Cir. 2010).
        59 Id. at 539. We have also stated in dicta and without explanation that act and

procurement manslaughter require more than “ordinary negligence.”                 Charlton v.
Wainwright, 588 F.2d 162, 164 (5th Cir. 1979). The question in Charlton was whether
attempted manslaughter by culpable negligence was a logical impossibility. Id. at 163-64.
The Court’s statements about act and procurement manslaughter were thus unnecessary to
its holding. See id. at 163. Moreover, the statements only loosely relate to the issue at hand
because they are based in the attempt context and do not deal with the “crime of violence”
issue. Even were we to give full effect to Charlton’s dicta, it would not answer the question
whether Florida act manslaughter covers only acts undertaken with recklessness as to death.
        60 Johnson v. United States, No. 09-20996-CIV, 2010 WL 4811075, at *1-2, 4 (S.D. Fla.

Nov. 19, 2010).
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                                       No. 13-20482
Johnson and Chan-Gutierrez. 61
                                             IV.
       Because § 782.07(1) neither has an element of force nor punishes only
generic contemporary manslaughter, it is not a crime of violence for purposes
of Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). It was thus error to enhance Mr.
Garcia-Perez’s offense level by 16 levels on the basis of his manslaughter
conviction.     Had the 16-level “crime of violence” enhancement not been
erroneously applied, Mr. Garcia-Perez would have been subject to, at most, an
8-level “aggravated felony” enhancement under § 2L1.2(b)(1)(C). 62 All else
being equal, the smaller enhancement would produce a total offense level of
13, which, coupled with Mr. Garcia-Perez’s criminal history category of V,
would result in a Guideline range of 30 to 37 months. This range is 50 to 57
months less than the 87-month prison sentence imposed.
       The government bears the burden to “convincingly demonstrate[] both
(1) that the district court would have imposed the same sentence had it not
made the error, and (2) that it would have done so for the same reasons it gave
at the prior sentencing.” 63 The government has made no attempt to meet this
burden, and we doubt that it could given the substantial difference between
the 30 to 37 month Guideline range and the sentence imposed. 64
Notwithstanding the district court’s comments about being tempted to depart
upwards, the record does not show that the court would have “impose[d] the



       61 Cook v. United States, No. 8:05-CR-404-T-24TGW, 2011 WL 5420799, at *8-9 (M.D.
Fla. Nov. 9, 2011).
       62 Mr. Garcia-Perez does not concede that the 8-level enhancement would apply, and

we offer no opinion on the matter.
       63 United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).
       64 See, e.g., United States v. Castaneda, 740 F.3d 169, 175 (5th Cir. 2013) (finding, on

plain error review, that error affected substantial rights and the fairness, integrity, and
public reputation of the proceeding, due to the substantial difference between the
recalculated guidelines and the sentence imposed).
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                                       No. 13-20482
same sentence if there had not been a 16-level enhancement based on the prior
crime of violence.” 65 The error was not harmless.
       We VACATE the judgment of sentence and REMAND for resentencing.




       65United States v. Martinez-Flores, 720 F.3d 293, 300-301 (5th Cir. 2013); see also
Ibarra-Luna, 628 F.3d at 719 (explaining that although the record indicated the district court
would have imposed an above-guidelines sentence even in light of the correct range, it had
not been established with “requisite certainty” that the court “would have imposed precisely
the same sentence” but for the error).
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