and Submitted June 15, 2016 San Francisco, California
from the United States District Court for the District of
Arizona, D.C. No. 4:14-cr-01336-JGZ-BGM-1 Jennifer G. Zipps,
District Judge, Presiding
Hariette P. Levitt, Tucson, Arizona, for Defendant-Appellant.
Rosaleen O'Gara (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; John S.
Leonardo, United States Attorney; United States
Attorney's Office, Tucson, Arizona; for
Before: Richard C. Tallman, Richard R. Clifton, and Sandra S.
Ikuta, Circuit Judges.
a sentence and remanding for resentencing, the panel held
that manslaughter, as defined by Florida Statute §
782.07, does not constitute a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A) because Florida manslaughter
by act, which does not require a mens rea of at
least recklessness, criminalizes conduct that goes beyond the
contemporary generic definition of manslaughter.
TALLMAN, CIRCUIT JUDGE
Mendoza-Padilla pled guilty to one count of illegal re-entry
after deportation. The district court applied a 16-level
increase to Mendoza-Padilla's base offense level based on
his prior manslaughter conviction under Florida law. We now
consider in light of United States Supreme Court guidance
whether manslaughter, as defined by Florida Statute §
782.07, constitutes a crime of violence under the United
States Sentencing Guidelines § 2L1.2(b)(1)(A). We hold
that it does not. Accordingly, we vacate
Mendoza-Padilla's sentence and remand for resentencing.
Mendoza-Padilla came to the United States as a teenager in
1998. In 2003, he was convicted of manslaughter under Florida
Statute § 782.07. Mendoza-Padilla was deported and
re-entered the United States several times. In 2014,
Mendoza-Padilla pled guilty without a plea agreement to one
count of illegal re-entry after deportation, in violation of
8 U.S.C. § 1326. The probation officer calculated the
base offense level as 8 under the United States Sentencing
Guidelines § 2L1.2(a) and increased the base level by 16
under § 2L1.2(b)(1)(A) because he understandably
believed that Mendoza-Padilla's Florida manslaughter
conviction was a "crime of violence." After an
acceptance of responsibility adjustment, the final offense
level was 21.
objected to the 16-level increase in the Presentence Report
on the ground that manslaughter under Florida law, as
interpreted by the Florida courts, was not a "crime of
violence" under federal sentencing law. At sentencing,
the district judge agreed with the probation officer,
overruled Mendoza-Padilla's objection, and sentenced him
to 57 months in prison. Mendoza-Padilla timely appealed.
asserts that the application of the 16-level enhancement was
improper because Florida manslaughter requires a mens
rea only of negligence, which does not meet the generic
definition of the crime. We review de novo the district
court's decision. United States v.
Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).
2L1.2(b)(1)(A)(ii) permits a sentencing court to increase a
defendant's offense level by sixteen levels if "the
defendant previously was deported . . . after . . . a crime
of violence." The Application Notes to §
2L1.2(b)(1)(A)(ii) list a number of specifically enumerated