     Case: 09-40907 Document: 00511282158 Page: 1 Date Filed: 11/02/2010




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

                                                 FILED
                                                                          November 2, 2010

                                       No. 09-40907                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

RAUL RUELAS GONZALEZ,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:09-cr-00893


Before DeMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Ruelas pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326 and
appeals his sentence of fifty-one months of imprisonment and a three-year term
of supervised release based in part on a sixteen-level enhancement from Ruelas’s
previous criminal conviction in Michigan for manslaughter. At issue is whether
the district court plainly erred by applying the enhancement. We AFFIRM.
     Ruelas pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The
probation officer assessed a sixteen-level enhancement under the U.S.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-40907

Sentencing Commission Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A) because
Ruelas had been deported to Mexico following a conviction in Michigan for
manslaughter. On appeal, Ruelas objects to the enhancement, arguing that his
prior conviction is not a “crime of violence” under the guidelines. See U.S.S.G.
§ 2L1.2, cmt. n.1(B)(iii)
      We review the district court’s interpretation of the guidelines de novo and
its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). Because Ruelas did not object below, he must establish
that the district court plainly erred by applying the enhancement. See
United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). Plain error is a clear
and obvious error that affected the defendant’s substantial rights, and even
then, we may exercise our discretion to correct the error only if “the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal citation omitted).
      Under the guidelines, an alien convicted of illegal reentry under § 1326 is
subject to a sixteen-level enhancement if he was previously deported after
committing a “crime of violence.” § 2L1.2(b)(1)(A)(ii). The comments define a
“crime of violence” as either one of a list of enumerated crimes 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.” § 2L1.2, cmt. n.1(B)(iii). Although “manslaughter” is an enumerated
offense, a defendant’s prior conviction for manslaughter does not necessarily
qualify as a crime of violence. See United States v. Bonilla, 524 F.3d 647, 652-55
(5th Cir. 2008). Instead, whether a prior conviction qualifies as an enumerated
“crime of violence” requires this court to compare the relevant statute related to
the offense with the “generic, contemporary meaning” of the offense. See United
States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006). “When the statute of
conviction encompasses prohibited behavior that is not within the plain,

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ordinary meaning of the enumerated offense, the conviction is not a crime of
violence as a matter of law.” United States v. Fierro-Reyna, 466 F.3d 324, 327
(5th Cir. 2006) (internal citation and quotation marks omitted). Therefore, the
issue before us is whether Michigan’s manslaughter statute encompasses
behavior within the generic, contemporary meaning of manslaughter.
        This court has recognized that “the recklessness standard adopted in the
Model Penal Code provides the minimal necessary mens rea for generic
contemporary manslaughter (including involuntary manslaughter).” Bonilla,
524 F.3d at 654 (internal citation omitted). The recklessness standard requires
“proof of conscious disregard of perceived homicidal risk.” United States v.
Dominguez-Ochoa, 386 F.3d 639, 645 (5th Cir. 2004). Mere criminal negligence,
in contrast, requires only that a person “should be aware of a substantial and
unjustifiable risk” and is insufficient to comport with the definition of plain,
ordinary definition of manslaughter. Id. Therefore, a manslaughter statute
“will    be   broader   than   the   general,    contem porary     definition   of
manslaughter—and thus not a crime of violence under the guidelines–if one of
its subsections requires less than a reckless state of mind.” Bonilla, 524 F.3d at
654.
        The Michigan manslaughter statute does not define the crime; it merely
provides the penalty: “[a]ny person who shall commit the crime of manslaughter
shall be guilty of a felony punishable by imprisonment in the state prison, not
more than 15 years.”       M.C.L.A. 750.321.     In Michigan, the definition of
manslaughter has been the province of common law. See People v. Steubenvoll,
28 N.W. 883, 889 (Mich. 1886). At common law, manslaughter is divided into
two categories: voluntary and involuntary. People v. Carter, 197 N.W.2d 57, 67
(Mich. 1972). Under Michigan law, voluntary manslaughter requires the intent
to kill or cause serious bodily harm. See People v. Younger, 158 N.W.2d 493, 495
(Mich. 1968).    As distinguished from murder, voluntary manslaughter is a

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“homicide which is not the result of premeditation, deliberation and malice but,
rather, which is the result” of provocation and heat of passion.        Id.   This
definition comports with the generic, contemporary definition of manslaughter
as a crime of violence.
      However, under Michigan law, involuntary manslaughter is committed by
killing another by a negligent act or omission, which is also referred to as
criminal negligence or “gross negligence.” See, e.g., People v. Orr, 220 N.W. 777,
779 (Mich. 1928).    Gross negligence does not require the defendant to “be
personally aware of the danger” or “knowingly and consciously” create the
danger, only that the danger be “apparent to the ordinary mind.” People v.
Jackson, 364 N.W.2d 310, 311 (Mich. Ct. App. 1985); see also Orr, 220 N.W. at
779 (defining mens rea for involuntary manslaughter as the “omission to use
such care and diligence to avert the threatened danger when to the ordinary
mind it must be apparent.”). Thus, gross negligence in Michigan law is a lower
mens rea than recklessness, which requires a conscious disregard of a
substantial risk. See Dominguez-Ochoa, 386 F.3d at 646.
      Here, we must first consider what subpart of the statute, voluntary or
involuntary manslaughter, the defendant violated. We can look to 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.” See
United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008) (internal
citations omitted). The Michigan indictment reflects that Ruelas was originally
charged with second-degree murder by “[w]illfully, feloniously, maliciously, and
with a design to effect the death of one Pepito Colon did kill and murder the said
person with a knife said act not being justifiable or excusable but being without
premeditation or deliberation against the peace and dignity of the people of the
state of Michigan.” However, the judgment shows that Ruelas was convicted by



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a jury of the lesser-included offense of manslaughter. No charging instrument
related to the lesser offense of manslaughter appears in the record.
      In addition to considering the above, a district court can also “use all facts
admitted by the defendant in determining whether the prior conviction qualifies
as an enumerated offense under § 2L1.2.”         See United States v. Mendoza-
Sanchez, 456 F.3d 479, 483 (5th Cir. 2006) (internal citation omitted).          In
Mendoza-Sanchez, the defendant admitted, during the rearraignment, that his
prior state burglary conviction in Arkansas was for entering a house without
permission. Id. This court held that, while the Arkansas burglary statute is
broader than the generic meaning of burglary because it encompasses structures
other than dwellings, the defendant’s admission at rearraignment establishes
his conviction as a crime of violence. Id.
      Similarly, Ruelas’s counsel admitted, at the sentencing hearing, that
Ruelas “was in a bar fight and of course he did have a knife with him. He says
the other gentleman had a gun and they had gone outside to engage in mutual
combat, and it resulted in the other gentleman’s death, which [Ruelas] had been
repentent for his entire life.” Ruelas’s counsel’s statement that Ruelas went
outside the bar to engage in combat with a knife constitutes an admission that
Ruelas voluntarily engaged in an altercation with the victim. There is no
dispute that the altercation caused the death of the victim. Accordingly, that
admission, along with the presentence report, precludes finding that the prior
conviction was only for a negligent act—involuntary manslaughter. See United
States v. Fambro, 526 F.3d 836, 849-50 (5th Cir. 2008) (holding that, in plain
error context, courts may rely on the presentence report, along with counsel’s
admissions, to establish violent crime offenses in determining armed career
criminal classification). Based on these admitted facts, the district court could
reasonably conclude that Ruelas’s prior conviction was for voluntary
manslaughter. As noted above, Michigan’s voluntary manslaughter definition

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comports with the generic, contemporary definition of manslaughter as a crime
of violence. Thus, the district court did not err by applying the sixteen-level
enhancement.
      Moreover, even if the admitted facts here were not enough to establish
that Ruelas’s prior conviction was for voluntary, not involuntary, manslaughter,
we would not find plain error. At sentencing, the district court noted that
defendants like Ruelas often do not realize that a prior conviction “bumps them
way up,” but here, where Ruelas had been convicted to forty-one months in 2003
on a reentry offense, the court thought that should have been “enough to
convince you that you shouldn’t ever come back again.” The district court then
stated that “under the circumstances here . . . the court does believe that the
guidelines range provided here [with the sixteen-level enhancement] is
appropriate. I am going to sentence you within that range, but I will sentence
you to a low end to a term of 51 months in custody.”
      In sentencing Ruelas, the district court had (1) noted that Ruelas’s prior
sentences and multiple deportations had not deterred his illegal entry, and (2)
held that a man who had killed another man with a knife outside of a bar had
committed a crime of violence. Any error here does not seriously affect the
fairness, integrity, or public reputation of judicial proceedings. See United
States v. Ellis, 564 F.3d 370, 378-79 (5th Cir. 2009) (“[E]ven if an increase in a
sentence [is] seen as inevitably ‘substantial’ in one sense it does not inevitably
affect the fairness, integrity, or public reputation of judicial process and
proceedings. To conclude that not correcting the error claimed here casts doubt
upon the fairness, integrity, or public reputation of the proceeding drains all
content from the doctrine of plain error.”).
      For the foregoing reasons, we AFFIRM.




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