     Case: 09-40154     Document: 00511040093          Page: 1    Date Filed: 03/02/2010




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

                                                  FILED
                                                                            March 2, 2010

                                       No. 09-40154                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

SEBASTIAN FELIPE CHAN-GUTIERREZ,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:07-CR-922


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        Sebastian Felipe Chan-Gutierrez (“Gutierrez”) appeals his sentence,
arguing that the district court erroneously concluded that his prior Florida
conviction for manslaughter was a “crime of violence” under U.S.S.G. §
2L1.2(b)(1)(A)(ii). We affirm.
                                   I. BACKGROUND
        Gutierrez pled guilty to illegal reentry after removal, in violation of 8
U.S.C. § 1326. Over Gutierrez’s objection, the district court concluded that his

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40154    Document: 00511040093      Page: 2   Date Filed: 03/02/2010

                                  No. 09-40154

prior Florida conviction for manslaughter constituted a “crime of violence”
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).      This resulted in a sixteen-level
enhancement to the base offense level of 8.        After a 2-level reduction for
acceptance of responsibility, this resulted in a total offense level of 22, which
when combined with his criminal history category of V, produced a Guidelines
range of 77-96 months. The district court sentenced Gutierrez to 57 months.
                               II. DISCUSSION
      “We review de novo the district court’s interpretation and application of
the guideline.” United States v. Pillado-Chaparro, 543 F.3d 202, 204 (5th Cir.
2008). Section 2L1.2(b)(1)(A) of the Guidelines authorizes a 16-level increase
if a defendant illegally reenters the United States after having been convicted
of a felony that is a “crime of violence.” When Gutierrez was sentenced, “crime
of violence” was defined as any number of enumerated offenses, including
manslaughter. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (stating that “[c]rime of
violence means any of the following . . . manslaughter . . . .”)
      A defendant’s prior state offense, while labeled “manslaughter,” does not
necessarily qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). 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 actual statute of conviction 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 generic, contemporary definition 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). The question before us, then, is whether
Florida’s manslaughter statute encompasses behavior beyond that included in
the “generic, contemporary” meaning of manslaughter.

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      “We have 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 citations omitted). The recklessness standard requires “proof of
conscious disregard of perceived homicidal risk.” Id. Criminal negligence, in
contrast, requires only that a person “should be aware of a substantial and
unjustifiable risk” and is insufficient to comport with generic, contemporary
manslaughter. United States v. Dominguez-Ochoa, 386 F.3d 639, 645 (5th Cir.
2004). Thus, Florida’s manslaughter statute “will be broader than the general,
contemporary definition of manslaughter—and thus not a [crime of violence]
under the guideline—if one of its subsections requires less than a reckless state
of mind.” Bonilla, 524 F.3d at 654.
      Like here, where it 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, this court considers “whether the least culpable act
constituting a violation of that statute constitutes [manslaughter] for purposes
of U.S.S.G. § 2L1.2.” United States v. Moreno-Florean, 542 F.3d 445, 449 (5th
Cir. 2008) (internal citations omitted).
      The least culpable act under the Florida manslaughter statute is
manslaughter by culpable negligence. F LA. S TAT. A NN. § 782.07. Gutierrez
argues that manslaughter by culpable negligence requires a mens rea less than
recklessness. He contends that the culpable negligence standard is more akin
to criminal negligence, because Florida’s culpable negligence standard does not
require the disregard of an actual perceived risk but instead merely requires
conduct that the defendant should have known would produce death or serious
injury.



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        Although the statute does not define culpable negligence, Florida courts
have consistently defined culpable negligence under the manslaughter statute
as: (1) of gross and flagrant character, evincing reckless disregard of human life
or of safety of persons exposed to its dangerous effects; (2) the entire want of care
which would raise a presumption of indifference to consequences; (3) such
wantonness or recklessness or grossly careless disregard of safety and welfare
of the public; or (4) the reckless indifference to the rights of others, which is
equivalent to an intentional violation of them. Hunt v. State, 87 So. 2d 584, 585
(Fla. 1956); Maxey v. State, 64 So. 2d 677, 678 (Fla. 1953); Walter v. State, 26
So. 2d 821 (Fla. 1946); Brickle v. State, 874 So. 2d 1199 (Fla. Dist. Ct. App.
2004).    Similarly, this court has noted that “Florida has defined culpable
negligence to involve a state of mind so wanton or reckless that the behavior it
produces may be regarded as intentional.” Charlton v. Wainwright, 588 F.2d
162, 164 (5th Cir. 1979).
        Though the Florida Supreme Court and a Florida appellate court have cast
doubt on the idea that culpable negligence is the equal of intent in all contexts,
see, e.g., Taylor v. State, 444 So. 2d. 931, 934 (Fla. 1993); Maynard v. State, 660
So. 2d 293 (Fla. Dist. Ct. App. 1995), they have never disturbed Charlton’s
central holding: that culpable negligence involves a mental state equivalent to
at least recklessness.      Therefore, this court’s opinion in Charlton, which
established that manslaughter by culpable negligence under Florida law
requires at least a mental state of recklessness, is dispositive of the issue in this
case.
        Because the Florida manslaughter statute does not punish any conduct
beyond that covered by “generic, contemporary” manslaughter, Gutierrez’s
manslaughter conviction is a crime of violence under § 2L1.2(b)(1)(A)(ii). The
district court’s application of a sixteen-level enhancement to his offense was
appropriate, and the sentence was not imposed as a result of guideline error.

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                        III. CONCLUSION
   For the foregoing reasons, we affirm the district court’s sentence.




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