stating that when the court considers whether a crime of conviction falls within the list of enumerated offenses, it does so without regard for whether the crime meets the requirement of the application note’s alternative residual clause element test
How later courts described this case
- stating that when the court considers whether a crime of conviction falls within the list of enumerated offenses, it does so without regard for whether the crime meets the requirement of the application note’s alternative residual clause element test
- recognizing that under California law, violating section 23140 is equivalent to “driving a vehicle while under the influence of drugs or alcohol in violation of the California vehicle code”
- holding that a crime of violence under 18 U.S.C. § 16 “must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission”
- stating that to be a “crime of violence” under § 16(b), “the underlying offense must require proof of . . . a substantial risk that force will be intentionally used during its commission”
Written by the judges who cited it.
The opinion
O’SCANNLAIN, Circuit Judge,
concurring in part and dissenting 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 months, thus excluding him from a sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A).
However, notwithstanding the government’s concession to the contrary, I respectfully disagree with the court’s articulation 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 violence” 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. l(B)(iii) of the Guidelines unequivocally lists manslaughter as a “[c]rime of violence.” “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 included.’ ” United States v. Dominguez-Ochoa, 386 F.3d 639, 648 (5th Cir.2004) (Pickering, J., dissenting).
The government’s concession that Gomez-Leon’s conviction 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). FemandezRuiz, 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)(l)(A)(ii). Rather, there we construed the meaning of “crime of violence” under 18 U.S.C. § 16 (a), see FemandezRuiz, 466 F.3d at 1132 , which does not include a similar provision listing enumerated qualifying offenses. Accordingly, Femandez-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 violence” 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 l(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.