United States v. Gomez-Leon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50138

Plaintiff-Appellee,

v.  D.C. No.

CR-04-02230-WQH

JAVIER GOMEZ-LEON,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

March 4, 2008—Pasadena, California

Filed September 24, 2008

Before: John R. Gibson,* Diarmuid F. O’Scannlain, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Gibson;

Partial Concurrence and Partial Dissent by

Judge O’Scannlain

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation.

13487

UNITED STATES v. GOMEZ-LEON 13491

COUNSEL

Lynn H. Ball, Law Office of Lynn H. Ball, San Diego, Cali-

fornia, for the defendant-appellant.

13492 UNITED STATES v. GOMEZ-LEON

Timothy F. Salel, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

OPINION

GIBSON, Circuit Judge:

Javier Gomez-Leon was found guilty by the district court

of attempted entry into the United States after deportation, 18

U.S.C. § 1326, following a non-jury trial. The district court

sentenced Gomez to 84 months’ imprisonment based on an

advisory Guidelines range of 84-105 months. The district

court arrived at that advisory range by beginning with a base

offense level of eight, applying a sixteen-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(A) (prescribing an increase in

sentencing range if the defendant was previously convicted a

“crime of violence” or a “drug trafficking offense for which

the sentence imposed exceeded 13 months”), and granting a

two-level reduction for acceptance of responsibility, U.S.S.G.

§ 3E1.1. Gomez’s total offense level was, therefore, twenty-

two. On appeal, Gomez argues that the district court erred by

applying the sixteen-level enhancement under § 2L1.2(b)(1)

(A)(i) & (ii). We reverse and remand for re-sentencing.

Gomez is a Mexican national with a long history of depor-

tation and unlawful behavior. He entered the country illegally

as early as 1994. In 1998, he came to the attention of immi-

gration authorities when he was convicted for driving a vehi-

cle under the influence of alcohol and without a license. That

same year, he was removed to Mexico following a removal

hearing before an immigration judge. Gomez then reentered

the country illegally. In 1999, he was convicted of violating

California Health & Safety Code section 11379(a), an offense

involving controlled substances. He was removed to Mexico

once again in 1999. Gomez again illegally reentered the coun-

try. He was convicted in 2000 of receiving stolen goods and

UNITED STATES v. GOMEZ-LEON 13493

of driving under the influence. He was removed to Mexico a

third time in 2000. On November 4, 2003, he was convicted

in California state court of vehicular manslaughter while

intoxicated without gross negligence, Cal. Penal Code

§ 192(c)(3) (1998),1 for which he was sentenced to two years’

imprisonment. Following his release, Gomez was once again

removed to Mexico in 2004. Six days later, Gomez was

arrested at the Mexico-United States border and charged with

the instant offense of attempted reentry. Following a non-jury

trial, Gomez was found guilty and sentenced to 84 months’

imprisonment with three years of supervised release.

Gomez’s various appellate arguments stem from a sixteen-

level enhancement that the district court applied to his advi-

sory sentencing range under U.S.S.G. § 2L1.2(b)(1)(A),

which requires such an enhancement

[i]f the defendant previously was deported, or unlaw-

fully remained in the United States, after—

(A) a conviction for a felony that is (i) a drug traf-

ficking offense for which the sentence imposed

exceeded 13 months; (ii) a crime of violence;

(iii) a firearms offense; (iv) a child pornogra-

phy offense; (v) a national security or terror-

ism offense; (vi) a human trafficking offense;

or (vii) an alien smuggling offense . . . .

For the enhancement to apply, the government must show that

the defendant was lawfully removed from the United States

1

The California Code was revised on January 1, 2007, after Gomez was

convicted. The current California Penal Code section 192(c)(3) is materi-

ally different than the version which applied in 2003. We cite to the ver-

sion of the code that was in effect in 2003, when Gomez was convicted.

The current version of California Penal Code section 191.5(b) (2007) is,

in all respects material to this case, substantially the same as the version

of section 192(c)(3) in effect in 2003. See Cal. Penal Code § 192(c)(3)

(1998).

13494 UNITED STATES v. GOMEZ-LEON

after being convicted of a predicate offense. Id. The district

court found that both Gomez’s drug conviction under Califor-

nia Health & Safety Code section 11379(a) and his conviction

for vehicular manslaughter while intoxicated, without gross

negligence, Cal. Penal Code § 192(c)(3), were predicate

offenses, justifying the enhancement.

Gomez challenges each component of these findings. He

urges us to reverse his sentence because the district court

erred by finding that (1) his conviction under California

Health & Safety Code section 11379 was a “drug trafficking

offense for which the sentence imposed exceeded 13 months”;

(2) his California conviction for vehicular manslaughter with-

out gross negligence, Cal. Penal Code § 192(c)(3), was a fel-

ony “crime of violence”; and (3) he was lawfully deported or

unlawfully remained in the country following either of those

convictions.2

“We review de novo the district court’s interpretation of the

United States Sentencing Guidelines . . . , review for clear

error the district court’s factual determinations, and review for

abuse of discretion the district court’s applications of the

Guidelines to the facts.” United States v. Holt, 510 F.3d 1007,

1010 (9th Cir. 2007). We must reverse if the district court

committed a significant procedural error, such as incorrectly

calculating the advisory Guidelines’ sentencing range. Gall v.

United States, 128 S. Ct. 586, 597 (2007); United States v.

Carty, 520 F.3d 984, 991-93 (9th Cir.) (en banc), cert. denied,

128 S. Ct. 2491 (2008).

2

Gomez also argues that his sentence violates the Sixth Amendment

because it requires the district court to find, based upon a preponderance

of the evidence, that he committed a prior felony. The Supreme Court has

made clear that the fact of a prior conviction need not be proved to a jury

beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 244

(2005). Consequently, Gomez’s argument is foreclosed.

UNITED STATES v. GOMEZ-LEON 13495

I.

Gomez argues that even if we hold that one of his convic-

tions was a predicate offense under U.S.S.G. § 2L1.2(b), he

was never “lawfully deported” after either of those convic-

tions because his 1999, 2000, and 2004 removals—those that

occurred after one of the predicate convictions—were autho-

rized by an immigration officer, not an immigration judge.

During the pendency of Gomez’s appeal, this argument has

been foreclosed. In Morales-Izquierdo v. Gonzales, 486 F.3d

484, 498 (9th Cir. 2007) (en banc), we held that removal by

an immigration officer pursuant to a prior removal order is

lawful. Gomez’s initial removal occurred in 1998, following

a hearing before an immigration judge. He returned to the

United States, committed the crimes of conviction, and was

then removed three additional times, the latest removal occur-

ring in July 2004, following his most recent California con-

viction for vehicular manslaughter while intoxicated without

gross negligence. This removal was performed by an immi-

gration officer, but pursuant to the prior removal order. Con-

sequently, the district court committed no legal error in

relying upon the 2004 removal for purposes of the § 2L1.2(b)

enhancement.

II.

Gomez argues that his conviction under California Health

& Safety Code section 11379(a) is not a predicate offense

because it was not for a “drug trafficking offense” and the

sentence imposed for the conviction did not exceed thirteen

months.

A.

[1] In order to determine if Gomez’s California conviction

was for a “drug trafficking offense,” we must apply the Tay-

lor categorical approach, Taylor v. United States, 495 U.S.

575 (1990), wherein we compare the statutory definition of

13496 UNITED STATES v. GOMEZ-LEON

the underlying offense to the Guidelines definition of a “drug

trafficking offense.” Id. at 599; United States v. Navidad-

Marcos, 367 F.3d 903, 907-08 (9th Cir. 2004). The commen-

tary to § 2L1.2 of the Guidelines defines a “drug trafficking

offense” as “an offense under federal, state, or local law that

prohibits the manufacture, import, export, distribution, or dis-

pensing of a controlled substance . . . or the possession of a

controlled substance . . . with intent to manufacture, import,

export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt.

1(B)(iv). We have held that the California offense under sec-

tion 11379(a)3 is broader than the Guidelines’ definition of a

“drug trafficking offense” because the California offense

criminalizes simple transportation of a drug without intent to

distribute it. Navidad-Marcos, 367 F.3d at 907-08; United

States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.

2007). Consequently, we cannot say that all convictions under

section 11379(a) qualify for the enhancement.

[2] Under the Taylor modified categorical approach, when

we encounter a statute that is categorically overbroad as com-

pared to the Guidelines definition, we may make a limited

inquiry into the facts of the underlying conviction to deter-

mine whether the “conviction was based on all of the ele-

ments of a qualifying predicate offense.” Navidad-Marcos,

367 F.3d at 908. Our inquiry under the modified categorical

approach is limited to the “charging document, written plea

agreement, transcript of plea colloquy, and any explicit fac-

tual finding by the trial judge to which the defendant assented

to determine if a prior conviction qualifies for an enhance-

ment.” Almazan-Becerra, 482 F.3d at 1088 (internal quotation

marks omitted). While we may not rely solely upon the charg-

3

California Health & Safety Code section 11379(a) provides that “every

person who transports, imports into this state, sells, furnishes, administers,

or gives away, or offers to transport, import into this state, sell, furnish,

administer, or give away, or attempts to import into this state or transport”

certain controlled substances “shall be punished by imprisonment in the

state prison for a period of two, three, or four years.”

UNITED STATES v. GOMEZ-LEON 13497

ing papers, id., we may rely upon them in conjunction with a

defendant’s written plea agreement or a transcript of the plea

to show that the defendant pled guilty to facts covered by the

Guidelines offense, United States v. Corona-Sanchez, 291

F.3d 1201, 1211 (9th Cir. 2002) (en banc).

[3] In this case, the district court relied upon the criminal

complaint and the defendant’s written plea of guilty. Accord-

ing to the written plea agreement, Gomez pled guilty to Count

Two of the written complaint, which alleged that he “did

unlawfully sell, furnish, administer, give away, or offer to

sell, furnish, administer, and give away . . . controlled sub-

stances.” In other words, Gomez distributed a controlled sub-

stance or attempted to distribute one by offering to do so.

Both distribution and attempted distribution of a controlled

substance are “drug trafficking offenses.” See U.S.S.G.

§ 2L1.2(b)(1)(A) cmts. 1(B)(iv) & 5. Consequently, the dis-

trict court did not err in finding that Gomez’s conviction

under California Health & Safety Code section 11379(a) was

a “drug trafficking offense.”

B.

[4] The more difficult question presented by using the sec-

tion 11379(a) conviction to support the enhancement is

whether a sentence of greater than thirteen months was

imposed. We conclude that it was not. For purposes of

U.S.S.G. § 2L1.2(b), a “sentence imposed” does not include

any part of a sentence that has been suspended. United States

v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003) (inter-

preting U.S.S.G. § 2L1.2 cmt. 1(A)(iv) (2001), having materi-

ally the same text as current § 4A1.2(b)(2), which is

incorporated by reference into current § 2L1.2, see § 2L1.2

cmt. 1(B)(vii)). It does include both a sentence originally

imposed, but not suspended, and any additional sentence of

incarceration ordered as a result of a probation violation. Id.

It also includes a term of incarceration imposed as a condition

of probation. United States v. Hernandez-Valdovinos, 352

13498 UNITED STATES v. GOMEZ-LEON

F.3d 1243, 1248-49 (9th Cir. 2003) (also interpreting prior

version of the Guidelines). Moreover, we ignore any good

behavior credits or other non-judicial adjustments earned by

the defendant. United States v. Benitez-Perez, 367 F.3d 1200,

1204 (9th Cir. 2004).

[5] According to court documents, Gomez’s sentence was

suspended and he was given three years of probation, which

included as a term of probation a 127-day sentence in the cus-

tody of the county sheriff. At the time the conditions of proba-

tion were imposed, Gomez had already earned 127 days of

credit for time served and good behavior awaiting trial. He

was therefore released on May 4, 1999. Sometime thereafter,

Gomez violated a condition of his probation. On March 30,

2000, he appeared in the California trial court; the trial court

revoked Gomez’s probation and then reinstated it with an

added condition, a 365-day term in the custody of the county

sheriff.

Gomez argues that the district court erred by adding the

365-day jail term to the 127-day jail term because the longer

sentence included the shorter one. The state trial court records

provided on appeal are unclear on this point, but they do not

contradict Gomez’s contention. See Cal. Penal Code § 19.2

(providing that a California trial court cannot impose jail time

greater than 365 days in the custody of the county sheriff as

a term of probation); but see People v. Johnson, 147 Cal.

Rptr. 55, 58 (Ct. App. 1978) (providing that a California trial

court can impose up to 365 days of jail time after a probation

violation, if the defendant consents, even if the jail time

imposed as an original condition of probation was 365 days).

The record contains no evidence that Gomez consented to

receiving a total period of jail time in excess of 365 days.

Without such consent, the 365 days would have had to

include the prior 127 days.

[6] Under the modified categorical approach, the govern-

ment bears the burden to demonstrate that the prior conviction

UNITED STATES v. GOMEZ-LEON 13499

was a qualifying offense—here, that the sentence exceeded

thirteen months. See United States v. Kelly, 422 F.3d 889, 895

(9th Cir. 2005) (“Under the modified categorical approach,

the government has the burden to establish clearly and

unequivocally the conviction was based on all of the elements

of a qualifying predicate offense.” (internal quotation marks

omitted)). Because the record does not demonstrate that

Gomez’s sentence exceeded thirteen months, the district court

clearly erred in applying the enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(I) on the basis of Gomez’s drug trafficking

offense.

III.

A.

[7] Alternatively, the district court found that Gomez’s Cal-

ifornia conviction for vehicular manslaughter while intoxi-

cated without gross negligence, Cal. Penal Code § 192(c)(3)

(1998), was also a predicate offense under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because the conviction was a “crime of

violence.” The statute under which Gomez was convicted

(prior to its revision, see supra note 1) punished voluntary,

involuntary, and vehicular manslaughter, according to the

California legislature’s wording. Cal. Penal Code § 192. The

district court found that Gomez was convicted under subsec-

tion (c)(3), which defined the crime as

Driving a vehicle in violation of Section 23140,

23152, or 23153, [i.e., driving while intoxicated,] of

the Vehicle Code and in the commission of an

unlawful act, not amounting to felony, but without

gross negligence; or driving a vehicle in violation of

Section 23140, 23152, or 23153 of the Vehicle Code

and in the commission of a lawful act which might

produce death, in an unlawful manner, but without

gross negligence.

13500 UNITED STATES v. GOMEZ-LEON

Id. The current version of the statute, Cal. Penal Code

§ 191.5(b), refers to this crime as vehicular manslaughter

while intoxicated, without gross negligence. Conviction under

former section 192(c)(3) or current section 191.5 requires

proof of four elements: 1) driving a vehicle while under the

influence of drugs or alcohol in violation of the California

vehicle code,4 2) while also committing another misdemeanor

or infraction or an otherwise lawful act that might cause death,5

3) in a negligent manner, 4) where the negligent conduct

causes the death of another person. See Judicial Council of

California Criminal Jury Instructions, No. 591 (2007) (inter-

preting revised version of offense found in Cal. Penal Code

§ 191.5 (2007)); 6-142 California Criminal Defense Practice

§ 142.02 (2007). The negligence requirement is met if the

defendant commits ordinary (tort) negligence. See People v.

Bussel, 118 Cal. Rptr. 2d 159, 163 (App. Dep’t Super. Ct.

4

Specifically, the defendant must violate section 23140 (unlawful for

person under 21 to drive a vehicle while having 0.05 percent or more, by

weight, of alcohol in his or her blood), 23152 (unlawful for a person to

drive a vehicle while under the influence of alcohol or drugs, having an

unlawful blood alcohol content, or addicted to alcohol or drugs), or 23153

(unlawful for a person to drive a vehicle while under the influence of alco-

hol or drugs or having an unlawful blood alcohol content, concurrent with

neglecting a lawful duty or doing an act forbidden by law where such con-

duct causes bodily injury to another person) of the California Vehicle

Code.

5

The requirement of a lawful, but negligent, act that might cause death

could be interpreted as requiring a higher degree of culpability than ordi-

nary negligence and approaching the standard for criminal negligence.

Despite this peculiar language, the California courts insist that this statute

requires proof of only ordinary negligence. See Davis v. Dennis B. (In re

Dennis B.), 557 P.2d 514, 521 (Cal. 1976); People v. Bussel, 118 Cal.

Rptr. 2d 159, 163 (App. Dep’t Super. Ct. 2002). Moreover, if California

Penal Code section 191.5(a) (2007) (vehicular manslaughter while intoxi-

cated with gross negligence) had been read to require criminal negligence,

it would have been redundant of section 191.5(b) (vehicular manslaughter

while intoxicated without gross negligence, Cal. Penal Code 191.5(b)).

See Judicial Council of California Criminal Jury Instructions, No. 591

(2007) (defining gross negligence to require acts that create high risk of

death or serious bodily injury).

UNITED STATES v. GOMEZ-LEON 13501

2002) (phrase “without gross negligence” means that only

ordinary negligence is required); Cal. Criminal Jury Inst., No.

591.

Gomez argues that because Cal. Penal Code section

192(c)(3) requires proof of only ordinary negligence, it cannot

be a “crime of violence” for purposes of the sixteen-level

enhancement. This question requires us to delve once again

into the murky waters of what is meant by a “crime of vio-

lence.”

B.

Confusingly, the phrase “crime of violence” is used to iden-

tify predicate offenses in a wide variety of contexts,6 but there

are at least four different ways to determine whether an

offense constitutes a “crime of violence.”7 See 18 U.S.C. § 16;

U.S.S.G. § 2L1.2 cmt. 1(B)(iii); U.S.S.G. § 4B1.2. What may

be a predicate offense under one approach is not necessarily

6

See 18 U.S.C. § 924(c)(3) (establishing statutory minimums for firearm

offenses involving crimes of violence); 8 U.S.C. § 1227(a)(2)(E)(i) (autho-

rizing deportation of alien who commits domestic crime of violence); 8

U.S.C. § 1101(a)(43)(F) (crimes of violence constitute “aggravated felo-

nies” for immigration purposes); 18 U.S.C. § 3181 (authorizing extradition

of persons who have commited crimes of violence); 21 U.S.C. § 841(b)(7)

(establishing mandatory maximum sentence for persons who commit a

crime of violence by drugging someone unawares); U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) (enhancing advisory sentencing base offense level by

sixteen for aliens who were deported after committing a crime of violence

and subsequently entered United States unlawfully); U.S.S.G. § 4A1.1(f)

& cmt. 6 (increasing criminal history for crimes of violence not otherwise

counted by the Guidelines); U.S.S.G. § 4B1.2(a) (classifying the defendant

as a career offender based upon having committed crimes of violence); see

also Leocal v. Ashcroft, 543 U.S. 1, 6-7 & n.4 (2004) (collecting uses of

phrase as defined in the Comprehensive Crime Control Act of 1984).

7

For example, compare the statutory definitions under 18 U.S.C. §§ 16

& 924(c)(3) with U.S.S.G. § 4B1.2. Even within the Sentencing Guide-

lines, there are different meanings of the phrase. Compare U.S.S.G.

§ 4B1.2 with § 2L1.2 cmt. 1(B)(iii).

13502 UNITED STATES v. GOMEZ-LEON

a predicate offense under another approach. Generally, the

statute or guideline provision being applied specifies which

approach should be used in the context of that statute or

guideline provision. When the phrase is used in a statutory

context, the statutory definition adopted as part of the Com-

prehensive Crime Control Act of 1984 generally applies. 18

U.S.C. § 16.

[8] Section 16 uses a double-barreled approach, defining

the phrase in two ways, disjunctively. Thus, a “crime of vio-

lence” is

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be

used in the course of committing the offense.

18 U.S.C. § 16. We will refer to the § 16(a) approach as the

element test because it focuses on whether use of force is an

element of the offense. Section 16(b) focuses on the risk that

the offense will involve the use of force. See also Leocal v.

Ashcroft, 543 U.S. 1, 10 (2004) (explaining that §16(b)

“sweeps more broadly than” the element test because it

encompasses offenses where a person merely disregards a risk

that physical force will be used in commission of the offense).

Therefore, we will refer to § 16(b) as the substantial risk/use

of force test. Both tests require that force be “used” “against

the person or property of another.” § 16. In Leocal, the

Supreme Court reasoned that the words “used” “against the

person or property of another” mean the infliction of force

must be volitional in order to qualify as a predicate offense,

requiring proof of “a higher degree of intent than negligent or

merely accidental conduct.” 543 U.S. at 9-11 (holding that

alien’s DUI conviction was not a “crime of violence” under

UNITED STATES v. GOMEZ-LEON 13503

§ 16 because commission of the crime did not require voli-

tional use of force or risk of volitional use of force). We inter-

preted Leocal in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121

(9th Cir. 2006) (en banc), to further exclude from § 16(a)

offenses that may be “committed through the reckless, or

grossly negligent, use of force.” See Fernandez-Ruiz, 466

F.3d at 1132 (holding that Arizona assault statute that may be

committed by recklessly causing injury to a person was not a

“crime of violence”). As a result, only those offenses that

involve “the intentional use of force against the person or

property of another” become predicate offenses under the ele-

ment test. Id. We later held that the same requirement applies

to “crimes of violence” captured by the substantial risk/use of

force test. Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084

(9th Cir. 2007). The effect of our holdings is that in order to

be a predicate offense under either 18 U.S.C. § 16 approach,

the underlying offense must require proof of an intentional

use of force or a substantial risk that force will be intention-

ally used during its commission.

[9] The applicable context in this case, section 2L1.2(b)(1)

(A)(ii) of the United States Sentencing Guidelines, contains

its own approach to defining a crime of violence that is only

partly similar to the 18 U.S.C. § 16 definition. Under U.S.S.G.

§ 2L1.2(b)(1), a crime of violence

means any of the following: murder, manslaughter,

kidnapping, aggravated assault, forcible sex

offenses, statutory rape, sexual abuse of a minor,

robbery, arson, extortion, extortionate extension of

credit, burglary of a dwelling, or

any 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. 1(B)(iii) (paragraph spacing added for conve-

nience). The second phrase of the § 2L1.2(b) definition is

13504 UNITED STATES v. GOMEZ-LEON

materially the same as the element test from 18 U.S.C. § 16(a)8

and is subject to the same construction, which means that it

covers only convictions for an offense that requires proof of

the intentional use of force. See United States v. Narvaez-

Gomez, 489 F.3d 970, 976-77 (9th Cir. 2007) (applying

Fernandez-Ruiz to the element test in § 2L1.2). The first

phrase of the definition describes our third approach by listing

several enumerated offenses that constitute “crimes of vio-

lence” per se. We refer to this approach as the enumerated

offenses approach.

[10] Notably absent from the § 2L1.2(b) definition is the

substantial risk/use of force test. Its absence is explainable by

considering the history of the § 2L1.2 Guidelines provision.

Prior to the 2001 amendments to the Guidelines, § 2L1.2(b)

defined a “crime of violence” by reference to the definition

contained in § 4B1.2, the career offender provision of the

Guidelines. See U.S.S.G. App. C Vol. II, amend. 632 (2003).

The career offender definition for a “crime of violence” con-

tains the element test and our fourth approach, which we will

call the serious risk of injury test. § 4B1.2. Under the serious

risk of injury test, an offense is a “crime of violence” if it

is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of phys-

ical injury to another.

U.S.S.G. § 4B1.2(a)(2) (2000). This approach appears to have

originated in the Armed Career Criminal Act’s definition of

the term “violent felony.” 18 U.S.C. § 924(e)(2)(B)(ii). In

applying the serious risk of injury test in the context of

§ 924(e)(2)(B)(ii), the Supreme Court recently held that the

8

However, it limits predicate offenses to those that contain as an ele-

ment the use of force against another “person” and does not apply to

offenses which require use of force against only “property.” Compare 18

U.S.C. § 16(a) with U.S.S.G. § 2L1.2 cmt. 1(B)(iii).

UNITED STATES v. GOMEZ-LEON 13505

listed offenses, which precede the remainder clause, “illus-

trate the kinds of crimes that fall within the statute’s scope”

and that the remainder clause therefore includes only those

offenses which are similar to the illustrated crimes. Such a

similarity exists where the underlying offense requires “pur-

poseful, violent, and aggressive conduct.” See Begay v.

United States, 128 S. Ct. 1581, 1587 (2008) (holding that fel-

ony DUI is not a violent felony under the serious risk of

injury test because it was not purposeful, violent, and aggres-

sive).

The serious risk of injury test resembles the substantial

risk/use of force test because it is based on the degree of risk

that the commission of the underlying offense will cause a

particular result. We previously followed other circuits in

holding that the serious risk of injury test was more expansive

than the substantial risk/use of force test because it did not

require proof of mens rea. United States v. Rendon-Duarte,

490 F.3d 1142, 1148 (9th Cir. 2007); see Leocal, 543 U.S. at

10 n.7; see also United States v. McCall, 439 F.3d 967, 971

(8th Cir. 2006) (en banc) (holding that felony DUI satisfies

the serious risk of injury test), recognized as overruled,

United States v. Comstock, 531 F.3d 667, 679 (8th Cir. 2008);

United States v. Begay, 470 F.3d 964, 971 (10th Cir. 2006)

(following McCall), rev’d, 128 S. Ct. 1581 (2008). Since

then, however, the Supreme Court decided Begay, in which it

held that the serious risk of injury test includes only offenses

that involve “purposeful, violent, and aggressive” conduct.

Following Begay, it is unclear whether there is any meaning-

ful difference between the two risk-based approaches, but we

need not decide that issue here.

In 2001 the commentary to U.S.S.G. § 2L1.2 was amended

to create the current definition of a “crime of violence,” effec-

tively severing the § 2L1.2 definition from the § 4B1.2 defini-

tion and removing altogether the serious risk of injury test

from § 2L1.2. See U.S.S.G. App. C Vol. II, amend. 632

(2001). This amendment was enacted in order to provide a

13506 UNITED STATES v. GOMEZ-LEON

more graduated sentencing structure under § 2L1.2. Id.; Roger

W. Haines, Frank O. Bowman III & Jennifer C. Woll, Federal

Sentencing Guidelines Handbook § 2L1.2, at 830-31 (2007

ed.). Thus, in order for a defendant to receive a sixteen-level

enhancement for a “crime of violence,” the crime either had

to be an enumerated offense or had to satisfy the element test,

the latter of which includes only crimes which have as an ele-

ment the intentional use of force. Neither risk-based test is a

basis for a sixteen-level enhancement. Rather, offenses satis-

fying the substantial risk/use of force test warrant only an

eight-level enhancement under the aggravated felony provi-

sion of § 2L1.2(b)(1)(C).9 Offenses that satisfy only the seri-

ous risk of injury test then fall into the remainder “any other

felony” provision of U.S.S.G. § 2L1.2(1)(D), which warrants

only a four-level enhancement.

Although the Guideline drafters omitted both risk-based

tests from the sixteen-level enhancement, they did not remove

all risk-based offenses. Instead, they specially listed a number

of offenses as “crimes of violence” and, thus, deserving of the

sixteen-level enhancement, even though some of those crimes

do not contain as an element of their offense the intentional

use of force. See United States v. Pereira-Salmeron, 337 F.3d

1148, 1152 (9th Cir. 2003) (noting that “extortionate exten-

sion of credit and burglary” do not entail use of force but do

involve risk that force may be used during their commission).

Thus, when we consider whether a crime of conviction falls

within the list of enumerated offenses, we do so without

regard for whether those offenses involve the “use, attempted

use, or threatened use of physical force against the person of

another.” See id. Consequently, all convictions for offenses

which constitute “murder, manslaughter, kidnapping, aggra-

vated assault, forcible sex offenses, statutory rape, sexual

9

This is true because the substantial risk/use of force test is part of the

definition of an “aggravated felony.” See § 2L1.2 cmt. 3(A) (incorporating

by reference definition of an “aggravated felony” found in 8 U.S.C.

§ 1101(A)(43), which in turn incorporates 18 U.S.C. § 16).

UNITED STATES v. GOMEZ-LEON 13507

abuse of a minor, robbery, arson, extortion, extortionate

extension of credit, [or] burglary of a dwelling” are treated as

“crimes of violence” for purposes of the sixteen-level

enhancement. U.S.S.G. § 2L1.2 cmt. 1(B)(iii). Moreover,

since the enumerated offenses approach does not require us to

apply either the element test or the substantial risk/use of

force test, the underlying conviction need not be for an

offense that involves the intentional use of force; Leocal does

not apply.

C.

[11] We have identified the four approaches for defining a

“crime of violence” as the element test, the substantial risk/

use of force test, the serious risk of injury test, and the enu-

merated offenses approach. Having identified and defined

each approach, we must apply the appropriate approaches to

this case. Only two of the four approaches are directly rele-

vant in the context of U.S.S.G. § 2L1.2(b), which defines a

“crime of violence” using the element test and an enumerated

offenses approach. The government concedes that the element

test cannot justify the enhancement here because California

Penal Code section 192(c)(3) (1998) does not involve an “in-

tentional use of force.”10 We reached the same conclusion

when we analyzed a current version of the greater California

offense of vehicular manslaughter while intoxicated with

gross negligence. See Lara-Cazares v. Gonzales, 408 F.3d

1217, 1221 (9th Cir. 2005) (holding that offense met neither

element test nor substantial risk/use of force test in context of

review of decision of the Board of Immigration Appeals find-

10

The government concedes that a conviction for vehicular manslaugh-

ter while intoxicated without gross negligence under California Penal

Code section 192(c)(3) does not constitute a “crime of violence” within

the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). But “[w]e are not bound by

a party’s concession as to the meaning of the law, even if that party is the

government and even in the context of a criminal case.” United States v.

Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc).

13508 UNITED STATES v. GOMEZ-LEON

ing petitioner removable for having committed a “crime of

violence”).

[12] During the sentencing hearing, the district court gave

two reasons for applying the enhancement. First, it recited a

passage from our opinion in United States v. O’Neal, 937

F.2d 1369, 1371-72 (9th Cir. 1990), where we held that a con-

viction in California under an even older version of the vehic-

ular manslaughter while intoxicated without gross negligence

statute, Cal. Penal Code § 192.3 (1970), was a “violent felo-

ny” under the serious risk of injury test in the context of man-

datory minimum sentencing under the Armed Career Criminal

Act, 18 U.S.C. § 924(e). This was error because the serious

risk of injury test does not apply in the context of U.S.S.G.

§ 2L1.2(b). In addition to citing O’Neal, the district court

applied the enumerated offenses approach that is authorized

by U.S.S.G. § 2L1.2 cmt. 1(B)(iii), finding that Gomez’s con-

viction for vehicular manslaughter while intoxicated without

gross negligence was one of “manslaughter” and that it, there-

fore, fell within the enumerated offenses.

[13] The district court relied largely upon the fact that the

California offense is called “vehicular manslaughter” to find

that it was “manslaughter.” But the Supreme Court has

directed us to look beyond the label applied to an offense by

the state legislature and consider whether the substance of the

offense matches the “generally accepted contemporary mean-

ing of [the] term.” Taylor v. United States, 495 U.S. 575, 596

(1990); see also United States v. Gomez-Mendez, 486 F.3d

599, 602 (9th Cir.) (asking whether state crime fell within “or-

dinary, contemporary, and common meaning” of “statutory

rape,” enumerated as a “crime of violence” under

§ 2L1.2(b)(1)(ii) (internal quotation marks omitted)), cert.

denied, 128 S. Ct. 545 (2007). Thus, an enumerated offense

must have some “uniform definition independent of the labels

employed by the various States’ criminal codes.” Taylor, 495

U.S. at 592. When the enumerated offense is a traditional

crime, such as manslaughter, we derive its uniform meaning

UNITED STATES v. GOMEZ-LEON 13509

from the generic, contemporary meaning employed by most

states, guided by scholarly commentary. United States v.

Bolanos-Hernandez, 492 F.3d 1140, 1143 (9th Cir.), cert.

denied, 128 S. Ct. 731 (2007).

1.

Contemporary Meaning of Manslaughter

Historically, the common law did not distinguish between

murder and manslaughter. 2 Wayne R. LaFave, Substantive

Criminal Law § 15.4 (2d ed. 2007). Eventually, however, two

distinct crimes emerged. Manslaughter was commonly called

the “unlawful killing of a human being without malice afore-

thought.” Id. § 15.1. “[M]anslaughter itself was subdivided

into two branches—voluntary manslaughter (intended homi-

cide in a heat of passion upon adequate provocation) and

involuntary manslaughter (unintended homicide under certain

circumstance).” Id. § 15.4. According to LaFave, it is the gen-

eral trend for involuntary manslaughter to require the mens

rea element of recklessness. Even though some states have

held that involuntary manslaughter can be established by

proof of ordinary negligence, “the great weight of authority

requires something more.”11 Id. § 15.4(a).

In United States v. Dominguez-Ochoa, 386 F.3d 639, 644-

46 (5th Cir. 2004), the Fifth Circuit agreed with LaFave and

held that the modern view of manslaughter required proof of

recklessness. That case presented the reverse of the question

11

Unlike ordinary negligence, recklessness requires conduct that

involves both (1) “a high degree of risk of death or serious bodily injury,

in addition to the unreasonable risk required for ordinary negligence” or

a gross deviation from the ordinary standard of care and (2) that the defen-

dant be “aware of the fact that his conduct creates this risk.” 2 Wayne R.

LaFave, Substantive Criminal Law § 15.4(a) (2d ed. 2007). Gross negli-

gence or criminal negligence requires something more than ordinary negli-

gence, such as one, and in some cases both, of the additional elements. Id.

§ 5.4.

13510 UNITED STATES v. GOMEZ-LEON

presented here. The Texas offense being reviewed there was

called negligent homicide, but the government argued it was

equivalent to manslaughter and was thus a “crime of vio-

lence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Id. The mens rea

element to that statute was criminal negligence, a degree of

culpability higher than ordinary negligence, but lower than

recklessness. The Fifth Circuit reversed the district court’s

application of the sixteen-level sentencing enhancement,

holding that a prior conviction for negligent homicide that

required only criminal negligence was not manslaughter. Id.

This view is consistent with the Model Penal Code, which

also requires recklessness for the crime of manslaughter and

criminal negligence for the crime of negligent homicide.

§§ 210.3 & 210.4. Criminal negligence is a higher standard

than ordinary negligence; it requires a “substantial risk” and/

or that the failure to perceive such a risk constitutes “a gross

deviation from the standard of care that a reasonable person

would observe in the actor’s situation.” Id. § 2.02(d). Under

the Model Penal Code’s approach, a state would not punish

conduct that amounts to only ordinary negligence, such as the

conduct outlawed by California Penal Code section 192(c)(3)

(1998).

[14] Like California, most states have several homicide

offenses, including an involuntary manslaughter statute. The

Fifth Circuit’s study revealed that at least twenty state crimi-

nal codes require proof of recklessness to convict a person for

the crime of involuntary manslaughter. Dominguez-Ochoa,

386 F.3d at 646. Thus, the modern view appears to be that

recklessness is an element of contemporary manslaughter. 2

LaFave, supra, § 15.4(a). However, at least fifteen states have

a manslaughter statute criminalizing conduct that falls short of

recklessness: twelve of them permit punishment when the

defendant has a mens rea that is akin to criminal or gross negli-

gence,12 but only three states permit punishment on proof of

12

Me. Rev. Stat. Ann. tit. 17, § 203 (offense called “manslaughter,” but

requires recklessness or criminal negligence); Md. Code Ann. Crim. Law

UNITED STATES v. GOMEZ-LEON 13511

only ordinary negligence.13 When we look beyond statutes

that use the term “manslaughter,” we see that another thirty-

four states have created homicide statutes that require a mens

rea of less than recklessness, but call such offenses “negligent

homicide” or something similar.14 Even when we expand the

§ 2-209 (offense called “manslaughter by vehicle or vessel,” but requires

gross negligence); Miss. Code Ann. § 97-3-27 (offense called “man-

slaughter” but requires culpable negligence which is more than ordinary

negligence as interpreted by Johnson v. State, 86 So. 863 (Miss. 1921));

Mo. Rev. Stat. § 565.024 (offense called “involuntary manslaughter” but

requires criminal negligence or recklessness); N.M. Stat. Ann. § 30-2-3

(offense called “involuntary manslaughter” but requires criminal negli-

gence); N.C. Gen. Stat. Ann. § 14-18 (offense called “manslaughter,” but

requires culpable negligence, not ordinary negligence, as interpreted by

State v. Davis, 311 S.E.2d 311 (N.C. 1984)); Okla. Stat. Ann. tit. 21 § 716

(offense called “manslaughter in the second degree,” but requires culpable

negligence); 18 Pa. Cons. Stat. § 2504 (offense called “involuntary man-

slaughter” but requires gross negligence); R.I. Gen. Laws § 11-23-3

(offense called “involuntary manslaughter” but requires criminal negli-

gence as interpreted by State v. Ortiz, 824 A.2d 473, 485-86 (R.I. 2003));

S.C. Code Ann. § 16-3-60 (offense called “involuntary manslaughter,” but

requires criminal negligence); Vt. Stat. Ann. tit. 13, § 2304 (offense called

“manslaughter,” but requires criminal negligence as interpreted by State

v. Stainslaw, 573 A.2d 286, 291 (Vt. 1990)); Wash. Rev. Code

§ 9A.32.070 (offense called “manslaughter in the second degree” but

requires criminal negligence).

13

Idaho Code Ann. § 18-4006 (offense called “manslaughter” and

requires only ordinary negligence as interpreted by Haxforth v. State, 786

P.2d 580, 581 (Idaho Ct. App. 1990)); Nev. Rev. Stat. Ann. § 484.3775

(offense called “vehicular manslaughter” and requires only ordinary negli-

gence); Va. Code Ann. § 18.2-36.1 (offense called “involuntary man-

slaughter” and only requires ordinary negligence if driver is under the

influence of drugs or alcohol, as interpreted by Pollard v. Commonwealth,

455 S.E.2d 283, 286 (Va. 1995)).

14

Ala. Code § 32-5A-192 (1975) (offense called “homicide by vehicle

or vessel” and requires recklessness or criminal negligence as interpreted

by Ex parte Edwards, 816 So. 2d 98, 107 (Ala. 2001)); Alaska Stat.

§ 11.41.130 (offense called “criminally negligent homicide” and requires

criminal negligence); Ariz. Rev. Stat. Ann. § 13-1102 (offense called

“negligent homicide” and requires criminal negligence); Ark. Code Ann.

13512 UNITED STATES v. GOMEZ-LEON

scope of our research to include these “negligent homicide”

statutes, we see only eight more states that permit conviction

when the defendant possesses a mens rea of only ordinary negli-

gence.15 We conclude that it is rare for a state to criminalize

§ 5-10-105(b)(1) (offense called “negligent homicide” and requires negli-

gence that is a “gross deviation” from standard of care as interpreted by

Hunter v. State, 19 S.W.3d 607, 667-68 (Ark. 2000)); Colo. Rev. Stat.

§ 18-3-105 (offense called “criminally negligent homicide” and requires

criminal negligence); Conn. Gen. Stat. § 53a-58 (offense called “crimi-

nally negligent homicide” and requires criminal negligence); Del. Code

Ann. tit. 11, § 631 (offense called “criminally negligent homicide” and

requires criminal negligence); Ga. Code Ann. § 40-6-393 (offense called

“homicide by vehicle” and requires criminal negligence for violation in

the second degree as interpreted by Conyers v. State, 397 S.E.2d 423, 428

(Ga. 1990)); 720 Ill. Comp. Stat. 5/9-3 (offense called “reckless homicide”

and requires recklessness, but recklessness is mandatorily presumed when

driver causes vehicle to become airborne); Kan. Stat. Ann. § 21-3405

(offense called “vehicular homicide” and construed by State v. Gordon,

549 P.2d 886, 896 (Kan. 1976), to require more than simple negligence);

Ky. Rev. Stat. Ann. § 507.040 cmt. (manslaughter no longer allowed “on

the basis of ordinary negligence”); La. Rev. Stat. Ann. § 14:32 (offense

called “negligent homicide” and requires criminal negligence); Mont.

Code Ann. § 45-5-104 cmt. (offense called “negligent homicide” and

requires “gross deviation” from standard of care); N.H. Rev. Stat. Ann.

§ 630:3 (offense called “negligent homicide” and requires criminal negli-

gence); N.Y. Penal Law § 125.10 (offense called “criminally negligent

homicide” and requires criminal negligence); N.D. Cent. Code § 12.1-16-

03 (offense called “negligent homicide” and requires “gross deviation

from acceptable standards of conduct” as defined by N.D. Cent. Code

§ 12.1-02-02); Ohio Rev. Code Ann. § 2903.06 (“vehicular manslaughter”

contained in statute title, but referred to as vehicular homicide within stat-

ute, and requires more than ordinary negligence as construed by State v.

Self, 679 N.E.2d 1173, 1177 (Ohio Ct. App. 1996)); Or. Rev. Stat.

§ 163.145 (offense called “criminally negligent homicide” and requires

criminal negligence); Tenn. Code Ann. § 39-13-212 (offense called “crim-

inally negligent homicide” and requires criminal negligence); Tex. Penal

Code Ann. § 19.05 (offense called “criminally negligent homicide” and

requires criminal negligence); Utah Code Ann. § 76-5-206 (offense called

“negligent homicide” and requires criminal negligence); Wis. Stat.

§ 940.10 (offense called “negligent homicide” and requires criminal negli-

gence).

15

D.C. Code § 50-2203.01 (offense called “negligent homicide,” and

requires only ordinary negligence as interpreted by Butts v. United States,

UNITED STATES v. GOMEZ-LEON 13513

ordinary homicide where the defendant’s mens rea is only

ordinary negligence.16 Moreover, only a handful of those

states classify such offenses as “manslaughter.”17

[15] Of course, Gomez was not convicted of ordinary

involuntary or vehicular manslaughter, as California defines

it; he was convicted of vehicular manslaughter while intoxi-

cated, a particular type of manslaughter. Some states have

created special statutes to punish drunk driving homicides as

“a number of states have enacted statutes creating the new

crime of homicide by automobile.” See 2 LaFave, supra,

§ 15.4(e) (stating that such a statute is “related to the crime of

manslaughter but is not manslaughter proper”). Typically,

such statutes require proof of intoxication while driving a

vehicle and are punished less severely than manslaughter. 2

LaFave, supra, § 15.4(e). Commensurate with lesser punish-

ment is a lesser mens rea requirement, where the state often

permits conviction under the statute when the defendant has

a mens rea that is less than recklessness. Id.

[16] We identify, however, only five states that have stat-

utes similar to California’s, requiring proof of only ordinary

negligence18 or less19 and defining the offense as a type of

822 A.2d 407, 416 (D.C. 2003)); Haw. Rev. Stat. § 707-704 (offense cal-

led “negligent homicide in the third degree” and requires only ordinary

negligence); Mass. Gen. Laws Ann. ch. 90, § 24G (offense called “homi-

cide by motor vehicle” and requires only ordinary negligence as inter-

preted by Commonwealth v. Carlson, 849 N.E.2d 790, 795 (Mass. 2006),

and distinguishes involuntary manslaughter as much more serious); Mich.

Comp. Laws § 750.324 (offense called “negligent homicide” and requires

only ordinary negligence); S.D. Codified Laws § 22-16-41 (offense called

“vehicular homicide” and requires only ordinary negligence as interpreted

by State v. Two Bulls, 547 N.W.2d 764, 766 (S.D. 1996)).

16

Supra notes 13 (manslaughter statutes that require mens rea of ordi-

nary negligence) and 15 (negligent homicide statutes that require same).

17

Supra note 13.

18

Va. Code Ann. § 18.2-36.1 (offense called “involuntary manslaugh-

ter” and only requires ordinary negligence if driver is under the influence

13514 UNITED STATES v. GOMEZ-LEON

manslaughter. Two additional states punish homicide where

the defendant had a mens rea of ordinary negligence, but both

classify the offense as something other than manslaughter.20

Eleven more states have drunk driving homicide statutes that

require no mens rea at all or presume the necessary mens rea

exists when the driver of a vehicle is intoxicated; none of

these states classifies the offense as manslaughter.21 Even

of drugs or alcohol, as interpreted by Pollard v. Commonwealth, 455

S.E.2d 283, 286 (Va. 1995)).

19

N.Y. Penal Law § 125.12 (offense called “vehicular manslaughter in

the second degree” and requires no element of mens rea if driver was

intoxicated and intoxication resulted in killing of another person according

to the “Practice Commentary” found at N.Y. Penal Law ch. 40, pt. Three,

2005 amends., under the subheading “vehicular manslaughter”); Conn.

Gen. Stat. § 53a-56b (offense called “manslaughter in the second degree

with a motor vehicle” and does not require proof of mens rea when driver

is intoxicated as interpreted by State v. Kristy, 528 A.2d 390, 482-83

(Conn. Ct. App. 1987)); Tex. Penal Code Ann. § 49.08 (offense called “in-

toxication manslaughter” and requires no culpable mental state if driver

was operating motor vehicle while intoxicated); Fla. Stat. § 316.193(3)

(offense called “DUI manslaughter” and requires no proof of mens rea as

interpreted by State v. Hubbard, 751 So. 2d 552, 562-64 (Fla. 1999)).

20

Minn. Stat. § 609.21 (offense called “criminal vehicular homicide”

and requires only ordinary negligence when driver of vehicle is under the

influence); Md. Code Ann. Crim. Law § 2-503 (offense called “homicide

by motor vehicle or vessel while under the influence of alcohol” and

requires ordinary negligence).

21

Haw. Rev. Stat. § 707-702.5 (offense called “negligent homicide in

the first degree” and requires only proof of driving while intoxicated);

Neb. Rev. Stat. Ann. § 28-306 (offense called “motor vehicle homicide”

and strict liability for driving while under the influence of alcohol as inter-

preted by State v. Ring, 447 N.W.2d 908, 910-12 (Neb. 1989) (per

curiam)); Iowa Code § 707.6A (offense called “homicide or serious injury

by vehicle” and provides no mental state for convicting driver of vehicle

who is intoxicated at time of accident); Wis. Stat. Ann. § 940-09 (offense

called “homicide by intoxicated use of vehicle or firearm” and requires

only driving of vehicle while intoxicated); N.H. Rev. Stat. Ann. § 630:3.II

(offense called “negligent homicide” where negligence is per se shown by

driving under the influence which causes death); La. Rev. Stat. Ann.

§ 14:32.1 (offense called “vehicular homicide” and no negligence need be

proven if driver was intoxicated as interpreted by State v. Taylor, 463 So.

UNITED STATES v. GOMEZ-LEON 13515

among three additional states criminalizing homicide by

drunk driving that require proof of a culpable mental state

greater than ordinary negligence, only one defines the offense

as manslaughter.22 It appears there is a growing trend of at

least twenty states23 that punish drunk driving homicides when

the defendant possesses no culpable mental state or his mens

rea is only ordinary negligence. But it is still exceedingly rare

for such offenses to be classified as manslaughter.24 Instead,

it appears more common for state legislatures to create new

offenses, such as vehicular homicide, to cover such conduct.

See 2 LaFave, supra, § 15.4(e). This comports with the gen-

eral trend, noted by LaFave and evident in the Model Penal

Code, that the notion of manslaughter is reserved for conduct

2d 1274, 1275 (La. 1985)); Colo. Rev. Stat. § 18-3-106 (offense of “vehic-

ular homicide” is a strict liability crime if death occurs as a proximate

cause of driver being under influence of drugs and/or alcohol); Wis. Stat.

Ann. § 940.09 (offense called “homicide by intoxicated use of a vehicle”

and applies negligence per se when driving under the influence); Wyo.

Stat. Ann. § 6-2-106 (offense called “aggravated homicide by vehicle” and

requires only that person was intoxicated as predecessor statute was inter-

preted by in Armijo v. State, 678 P.2d 864, 869-70 (Wyo. 1984)); Utah

Code Ann. § 76-5-207(2)(a) (offense called “automobile homicide, a third

degree felony” and requires proof of intoxication and simple negligence);

N.J. Stat. Ann. § 2C:11-5 (offense called “vehicular homicide” and

requires recklessness, but recklessness presumed by virtue of intoxica-

tion).

22

Utah Code Ann. § 76-5-207(3)(a) (offense called “automobile homi-

cide, a second degree felony” and requires criminal negligence and proof

of intoxication); Mont. Code Ann. § 45-5-106 (offense of “vehicular

homicide while under influence” and requires negligence that is a gross

deviation from the standard of care as negligently is defined under Mont.

Code Ann. § 45-2-101); Ind. Code § 35-42-1-5 (offense of “involuntary

manslaughter” requires more than negligence even when defendant intoxi-

cated as interpreted by Demmond v. State, 333 N.E.2d 922, 924 (Ind. Ct.

App. 1975)).

23

Supra notes 18-21 (collecting statutes that require no proof of mens

rea or proof of ordinary negligence to punish drunk driving homicides).

24

Supra note 18-19 (only five states besides California).

13516 UNITED STATES v. GOMEZ-LEON

that includes a more culpable mental state than mere negli-

gence. Id. § 15.4(a).

2.

Guidelines Treatment of Manslaughter

[17] In its brief, the government argues that even if the con-

temporary meaning of manslaughter includes a mens rea that

is greater than ordinary negligence, the drafters of the Sen-

tencing Guidelines clearly intended for the term manslaughter

to include Gomez’s conviction. See, e.g., Dominguez-Ochoa,

386 F.3d at 647 (Pickering J., dissenting). We conclude the

contrary is true; when the Guidelines have reason to distin-

guish between degrees of involuntary manslaughter, they rec-

ognize only two types: criminally negligent manslaughter and

reckless manslaughter. See U.S.S.G. § 2A1.4 (providing dis-

tinct base offense levels for federal crime of involuntary man-

slaughter according to whether the defendant possessed mens

rea of recklessness or criminal negligence); see also

Dominguez-Ochoa, 386 F.3d at 643-44 (holding that § 2A1.4

should not be read as expression of drafters’ intent to define

manslaughter because drafters were merely creating base

offense levels for federal crime of involuntary manslaughter).

Consequently, even if we were to look to § 2A1.4 for guid-

ance in this case, it would only strengthen our conclusion that

a homicide which requires proof of only ordinary negligence

is not manslaughter.

[18] If the drafters of § 2L1.2 cmt. 1(b)(iii) intended all

homicides to be treated as “crimes of violence,” then they

would have listed “homicide” as the enumerated offense. As

it stands, they listed only “murder” and “manslaughter.” Id.

This limitation is consistent with the goal of the 2001 amend-

ments to provide more graduated sentencing enhancements

under § 2L1.2, where the drafters removed from the sixteen-

level enhancement definition of a “crime of violence” both

risk-based tests that capture less culpable defendants. It is

UNITED STATES v. GOMEZ-LEON 13517

unsurprising, then, that we should conclude that homicide

committed with a mens rea of only ordinary negligence is not

included among the enumerated offenses listed in § 2L1.2(b).

D.

[19] Since Gomez’s conviction under California Penal

Code section 192(c)(3) (1998) for “vehicular manslaughter

while intoxicated without gross negligence” is an offense that

requires only proof of ordinary negligence, it cannot fall

within the contemporary meaning of manslaughter as enumer-

ated in U.S.S.G. § 2L1.2 cmt. 1(B)(iii). Therefore, the district

court erred in finding that it was a “crime of violence” for the

purposes of applying a sixteen-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

IV.

[20] Neither Gomez’s conviction for a “drug trafficking

offense” nor his conviction under California Penal Code sec-

tion 192(c)(3) justifies the application of a sixteen-level

enhancement under U.S.S.G. § 2L1.2(b). Consequently,

Gomez’s sentence is vacated and the case is remanded to the

district court for re-sentencing in a manner consistent with our

opinion.

REVERSED and REMANDED.

O’SCANNLAIN, Circuit Judge, concurring in part and dis-

senting in part:

I concur in the court’s holding in Part I that Gomez-Leon

was “lawfully deported” under U.S.S.G. § 2L1.2(b), and in its

conclusion in Part II that his state sentence for violating Cal.

Health & Safety Code § 11379 did not exceed thirteen

13518 UNITED STATES v. GOMEZ-LEON

months, thus excluding him from a sentencing enhancement

under U.S.S.G. § 2L1.2(b)(1)(A).

However, notwithstanding the government’s concession to

the contrary, I respectfully disagree with the court’s articula-

tion in Part III that Gomez-Leon’s conviction for vehicular

manslaughter without gross negligence under Cal. Penal Code

§ 192(c)(3) (1998) does not constitute a felony “crime of vio-

lence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). As engaging

as I find the court’s historical analysis of the requisite mens

rea for a conviction of manslaughter and the court’s exegesis

of state law, the plain language of the Sentencing Guidelines

speaks for itself. Section 2L1.2 cmt. 1(B)(iii) of the Guide-

lines unequivocally lists manslaughter as a “[c]rime of vio-

lence.” “If the Guidelines writers had intended for

manslaughter to be limited, they could easily have inserted the

word ‘voluntary’ in front of the word ‘manslaughter’ or

inserted a parenthetical, ‘involuntary manslaughter not includ-

ed.’ ” United States v. Dominguez-Ochoa, 386 F.3d 639, 648

(5th Cir. 2004) (Pickering, J., dissenting).

The government’s concession that Gomez-Leon’s convic-

tion does not rise to the level of a “crime of violence” rests

on its assertion that this case is controlled by Fernandez-Ruiz

v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc).

Fernandez-Ruiz, however, was not a sentencing case, nor did

it involve a construction of the term “crime of violence” under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Rather, there we construed the

meaning of “crime of violence” under 18 U.S.C. § 16(a), see

Fernandez-Ruiz, 466 F.3d at 1132, which does not include a

similar provision listing enumerated qualifying offenses.

Accordingly, Fernandez-Ruiz is irrelevant to an assessment of

whether Gomez-Leon’s conviction under Cal. Penal Code

§ 192(c)(3) (1998) constitutes an enumerated “crime of vio-

lence” under the Sentencing Guidelines.

Because the Guidelines writers did not make a distinction

between types of manslaughter in U.S.S.G. § 2L1.2 cmt

UNITED STATES v. GOMEZ-LEON 13519

1(B)(iii), even though they explicitly did so elsewhere in the

Guidelines, see, e.g., U.S.S.G. § 2A1.4 (delineating between

negligent and reckless involuntary manslaughter), I cannot

join the court’s decision to reverse the sentence imposed by

the district court in this case.