                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3886
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

 Randall Tyrell Steward, also known as Randall Stewart, also known as Trouble

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                           Submitted: September 18, 2017
                              Filed: January 25, 2018
                                  ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

       Randall Steward pleaded guilty to sex trafficking of a child in violation of 18
U.S.C. § 1591. At sentencing, Steward objected to various aspects of the presentence
report. The district court1 sustained some objections, but overruled Steward’s

      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
objection to the categorization of his prior conviction for Oklahoma voluntary
manslaughter, see Okla. Stat. tit. 21, § 711(2),2 as a crime of violence. Using the
United States Sentencing Guidelines (USSG) in effect at the time of sentencing, the
district court found Steward qualified as a career offender under USSG § 4B1.1. The
advisory Guidelines range was 151–188 months, and the district court sentenced
Steward to 151 months of imprisonment. Steward appeals, arguing that his prior
voluntary manslaughter conviction is not a crime of violence.

       “We review de novo a district court’s interpretation and application of the
guidelines.” United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016). Generally,
district courts should apply the Guidelines “that are ‘in effect on the date the
defendant is sentenced.’” Peugh v. United States, 569 U.S. 530, 537–38 (2013)
(quoting 18 U.S.C. § 3553(a)(4)(A)(ii)). However, when the Guidelines have been
amended since the offense occurred such that application of the new Guidelines


      2
        The Oklahoma statute does not label the various types of first-degree
manslaughter defined in § 711. However, it is clear from the statute that each
subsection describes a separate offense with distinct, non-overlapping elements. Cf.
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (describing a statutory
provision that “define[s] a single crime”). The relevant definition in this
case—contained in § 711(2)—“is similar to” the federal offense of voluntary
manslaughter, defined in 18 U.S.C. § 1112. See In re Okla. Unif. Jury Inst. for
Juvenile Cases, 116 P.3d 119, 148 (Mem) (Okla. 2005); Campbell v. State, 636 P.2d
352, 357 n.1 (Okla. Crim. App. 1981) (“The distinction between murder and
voluntary manslaughter is found in the dividing line between malicious action on the
one hand and action in the heat of passion on the other . . . .”); Morgan v. State, 536
P.2d 952, 954, 959 (Okla. Crim. App. 1975) (describing voluntary manslaughter),
overruled on other grounds by Walton v. State, 744 P.2d 977 (Okla. Crim. App.
1987); see also Brown v. State, 777 P.2d 1355, 1357 (Okla. Crim. App. 1989)
(referring to “heat of passion first degree manslaughter”). Likewise, § 711(1)
describes “misdemeanor manslaughter,” State v. Ceasar, 237 P.3d 792, 794 (Okla.
Crim. App. 2010), and § 711(3) describes “manslaughter by resisting criminal
attempt,” Davis v. State, 268 P.3d 86, 116 (Okla. Crim. App. 2011).

                                         -2-
results in a higher sentencing range, the court should apply the Guidelines in effect
at the time of the offense, so as not to violate the Ex Post Facto Clause. Id. at 538.
Here, the definition of crime of violence in USSG § 4B1.2 was amended between the
time Steward committed his offense and the time of his sentencing. As a result, we
must examine both the 2015 and 2016 versions of the Guidelines. If Steward’s prior
offense would qualify as a crime of violence under both versions, there can be no Ex
Post Facto Clause violation and we must affirm.

       In 2015, the definition of crime of violence in the Guidelines included the same
“residual clause” as did the definition of violent felony in the Armed Career Criminal
Act (ACCA): “an offense that ‘involves conduct that presents a serious potential risk
of physical injury to another.’” Beckles v. United States, 137 S. Ct. 886, 890 (2017)
(quoting USSG § 4B1.2(a)(2) (Nov. 2006)). After the Supreme Court held the
residual clause to be unconstitutionally vague in the context of the ACCA, see
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), the Sentencing Commission
amended the Guidelines, removing the residual clause and adding more enumerated
offenses. See USSG Supp. App. C, Amend. 798 (effective August 1, 2016).
Subsequently, however, in Beckles, the Court held that the Guidelines are not subject
to vagueness challenges, thereby confirming the validity of the residual clause under
the pre-2016 Guidelines. 137 S. Ct. at 890.

        We are persuaded that Oklahoma voluntary manslaughter qualifies as a “crime
of violence” under the 2015 Guidelines. Although the district court determined
“without doubt” that the offense satisfied § 4B1.2(a)(1)—the “force clause”—we
need not make a force-clause determination because we conclude that Oklahoma
voluntary manslaughter qualifies as a crime of violence under the residual clause.
Under the 2015 Guidelines, the residual clause was accompanied by commentary that
contained illustrative examples of offenses that met its “serious potential risk of
physical injury to another” test. Manslaughter was one of the offenses contained in
that list. See USSG § 4B1.2, cmt., n.1 (Nov. 2015) (“‘Crime of violence’ includes . . .

                                         -3-
manslaughter . . . .”). The Supreme Court has explained that “commentary in the
Guidelines Manual that interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993). Thus, under the 2015 Guidelines, manslaughter is effectively an enumerated
offense. See United States v. Kosmes, 792 F.3d 973, 975 (8th Cir. 2015) (relying on
the commentary to USSG § 2L1.2(b)(1) to determine that manslaughter was an
enumerated offense); cf. Beckles, 137 S. Ct. at 897 (Ginsburg, J., concurring in the
judgment) (explaining that Beckles’s as-applied challenge should fail because his
prior conviction was “expressly designated” as a crime of violence by the official
commentary).

       Therefore, we follow the categorical approach, looking to see “whether the
state statute defining” voluntary manslaughter “categorically fits within the generic
federal definition of a corresponding crime of violence.” Kosmes, 792 F.3d at 975
(quoting United States v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013)).
“[A] state offense is a categorical match with a generic federal offense only if a
conviction of the state offense necessarily involved facts equating to the generic
federal offense.” Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013))
(cleaned up).3 “By ‘generic’ federal definition of [voluntary manslaughter], we mean
the ‘sense in which the term is now used in the criminal codes of most States.’” Id.
at 976 (quoting Roblero-Ramirez, 716 F.3d at 1125)).


      3
       “Cleaned up” is a new parenthetical used to eliminate unnecessary explanation
of non-substantive prior alterations. See Jack Metzler, Cleaning Up Quotations, J.
App. Prac. & Process (forthcoming 2018), http://dx.doi.org/10.2139/ssrn.2935374.
This parenthetical can be used when extraneous, residual, non-substantive
information has been removed, in this case, internal quotation marks, brackets,
additional quoting parentheticals and an ellipsis. See also United States v. Reyes, 866
F.3d 316, 321 (5th Cir. 2017).


                                         -4-
       Oklahoma’s criminal code defines the offense of manslaughter through the
intersection of three statutory provisions. First, homicide is defined as “the killing
of one human being by another.” Okla. Stat. tit. 21, § 691(A). Homicide is then
divided into four mutually-exclusive categories: murder, manslaughter, excusable
homicide, or justifiable homicide. Id. § 692. Each of those categories is subsequently
defined, and voluntary manslaughter—a further subset of manslaughter—is defined
as “[h]omicide . . . perpetrated without a design to effect death, and in a heat of
passion, but in a cruel and unusual manner, or by means of a dangerous weapon.”4
Id. § 711(2). Thus, we must determine whether this compound definition of voluntary
manslaughter fits within the “generic federal definition” of manslaughter. See
Kosmes, 792 F.3d at 975.

       In Kosmes, we turned to the Model Penal Code for persuasive evidence of what
constituted “generic federal manslaughter,” because “the Model Penal Code provides
the best generic, contemporary, and modern definition, [and] has been widely
adopted.” Id. at 977 (quoting United States v. Peterson, 629 F.3d 432, 436 (4th Cir.
2011)). We did so because the crime with which we were concerned, Guam
involuntary (or reckless) manslaughter, tracked the Model Penal Code exactly.
Compare 9 Guam Code Ann. § 16.50a)(1) (“Criminal homicide constitutes
manslaughter when . . . it is committed recklessly . . . .”) with Model Penal Code
§ 210.3(1)(a) (same). However, Kosmes addressed an issue not relevant to this
appeal, as the defendant there raised a then-undecided question about whether a
manslaughter statute that only required a mens rea of recklessness could qualify as
a crime of violence. 792 F.3d at 976–78.

      4
       Because they only serve to narrow the scope of the offense, both of the listed
alternatives—“in a cruel and unusual manner” and “by means of a dangerous
weapon”—do not need to be analyzed under Mathis, 136 S. Ct. at 2251 (contrasting
“elements” and “means”).


                                         -5-
        Steward’s case, on the other hand, presents a different question. This is
because—unlike involuntary manslaughter, which most often occurs when the
defendant lacks the requisite mental state to commit homicide, see Wayne R. LaFave,
Substantive Criminal Law § 15.4(a) (discussing the lesser mens rea required to
commit involuntary manslaughter)—voluntary manslaughter functions more like a
partial defense to murder, describing conduct undertaken intentionally but in the “heat
of passion.” See LaFave § 15.2(a) n.7 & accompanying text (citing, inter alia, Okla.
Stat. tit. 21, § 711); see also Davis, 268 P.3d at 111 (describing manslaughter as a
“defense”). While the majority of states continue to follow this common law
definition, see LaFave § 15.2(a), the Model Penal Code has modernized the language,
referring to “a homicide which would otherwise be murder [that] is committed under
the influence of extreme mental or emotional disturbance . . . .” Model Penal Code
§ 210.3(1)(b). For our purposes, this linguistic update, from “heat of passion” to
“extreme mental or emotional disturbance,” makes no difference. Having examined
Oklahoma case law, we discern nothing in the state’s application and analysis of the
voluntary manslaughter statute that demonstrates it departs in any meaningful way
from the “generic federal definition,”5 and Steward provides none. We further note,
by way of confirmation, that Oklahoma’s statute is almost identical to the federal

      5
        Oklahoma’s statute does contain the additional requirement that the defendant
have acted “without a design to effect death.” Okla. Stat. tit. 21, § 711(2). However,
our review of the case law indicates that that language has been interpreted to further
emphasize the necessary level of “passion” for this quasi-defense to apply—in other
words, to downgrade the offense from murder—rather than as a separate or additional
element. See Davis, 286 P.3d at 111 (“The heat of passion must render the mind
incapable of forming a design to effect death before the defense of manslaughter is
established.”) (citing Allen v. State, 821 P.2d 371, 374 (Okla. Crim. App. 1991));
Eizember v. State, 164 P.3d 208, 236 (Okla. Crim. App. 2007) (“The ‘passion’
necessary to support a manslaughter instruction must be so great as to ‘render the
mind incapable of forming a design to effect death.’” (quoting Charm v. State, 924
P.2d 754, 760 (Okla. Crim. App. 1996))); see also Bryson v. Ward, 187 F.3d 1193,
1208 (10th Cir. 1999) (citing Charm, 924 P.2d at 760 for the same proposition).


                                         -6-
crime of “voluntary manslaughter.” See 18 U.S.C. § 1112(a) (“Manslaughter is the
unlawful killing of a human being without malice . . . . [u]pon a sudden quarrel or
heat of passion.”); see also Okla. Unif. Jury Inst., 116 P.3d at 148.

       Oklahoma manslaughter also qualifies as a crime of violence under the 2016
Guidelines—which, as of August 1, 2016, made voluntary manslaughter an explicitly
enumerated offense. USSG § 4B1.2(a)(2) (Aug. 2016). We have already determined
that Oklahoma voluntary manslaughter satisfies the “generic federal definition” of
manslaughter. Thus, because Oklahoma voluntary manslaughter qualifies as a crime
of violence under both versions of the Guidelines, there is no Ex Post Facto Clause
issue as to Steward’s sentence, and he was properly sentenced as a career offender.

      The judgment of the district court is affirmed.
                     ______________________________




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