USA v. Raul Gonzalez

Filing

UNPUBLISHED OPINION FILED. [09-40907 Affirmed] Judge: HRD , Judge: FPB , Judge: JWE. Mandate pull date is 11/23/2010 for Appellant Raul Ruelas Gonzalez [09-40907]

USA v. Raul Gonzalezase: 09-40907 C

Document: 00511282158 Page: 1 Date Filed: 11/02/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 2, 2010 N o . 09-40907 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, Plaintiff-Appellee, v. R A U L RUELAS GONZALEZ, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 5:09-cr-00893

B e fo r e DeMOSS, BENAVIDES, and ELROD, Circuit Judges. PER CURIAM:* R u e la s pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326 and a p p e a ls his sentence of fifty-one months of imprisonment and a three-year term o f supervised release based in part on a sixteen-level enhancement from Ruelas's p r e v io u s criminal conviction in Michigan for manslaughter. At issue is whether t h e district court plainly erred by applying the enhancement. We AFFIRM. Ruelas pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The p r o b a t io n officer assessed a sixteen-level enhancement under the U.S.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 09-40907 Document: 00511282158 Page: 2 Date Filed: 11/02/2010

No. 09-40907 S e n te n c in g Commission Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A) because R u e la s had been deported to Mexico following a conviction in Michigan for m a n s la u g h t e r . On appeal, Ruelas objects to the enhancement, arguing that his p r io r conviction is not a "crime of violence" under the guidelines. See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) We review the district court's interpretation of the guidelines de novo and it s factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 7 5 1 , 764 (5th Cir. 2008). Because Ruelas did not object below, he must establish t h a t the district court plainly erred by applying the enhancement. See United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). Plain error is a clear a n d obvious error that affected the defendant's substantial rights, and even t h e n , we may exercise our discretion to correct the error only if "the error s e r io u s ly affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s ." Id. (internal citation omitted). Under the guidelines, an alien convicted of illegal reentry under § 1326 is s u b je c t to a sixteen-level enhancement if he was previously deported after c o m m it t in g a "crime of violence." § 2L1.2(b)(1)(A)(ii). The comments define a " c r im e of violence" as either one of a list of enumerated crimes or "any other o ffe n s e under federal, state, or local law that has as an element the use, a t t e m p t e d use, or threatened use of physical force against the person of a n o t h e r ." § 2L1.2, cmt. n.1(B)(iii). Although "manslaughter" is an enumerated o ffe n s e , a defendant's prior conviction for manslaughter does not necessarily q u a lify as a crime of violence. See United States v. Bonilla, 524 F.3d 647, 652-55 (5 t h Cir. 2008). Instead, whether a prior conviction qualifies as an enumerated " c r im e of violence" requires this court to compare the relevant statute related to t h e offense with the "generic, contemporary meaning" of the offense. See United S ta te s v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006). "When the statute of c o n v ic t io n encompasses prohibited behavior that is not within the plain, 2

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No. 09-40907 o r d in a r y meaning of the enumerated offense, the conviction is not a crime of v io le n c e as a matter of law." United States v. Fierro-Reyna, 466 F.3d 324, 327 (5 t h Cir. 2006) (internal citation and quotation marks omitted). Therefore, the is s u e before us is whether Michigan's manslaughter statute encompasses b e h a v io r within the generic, contemporary meaning of manslaughter. This court has recognized that "the recklessness standard adopted in the M o d e l Penal Code provides the minimal necessary mens rea for generic c o n t e m p o r a r y manslaughter (including involuntary manslaughter)." Bonilla, 5 2 4 F.3d at 654 (internal citation omitted). The recklessness standard requires " p r o o f of conscious disregard of perceived homicidal risk." United States v. D o m in g u e z -O c h o a , 386 F.3d 639, 645 (5th Cir. 2004). Mere criminal negligence, in contrast, requires only that a person "should be aware of a substantial and u n ju s t ifia b le risk" and is insufficient to comport with the definition of plain, o r d in a r y definition of manslaughter. Id. Therefore, a manslaughter statute "w ill be broader than the general, contem p o r a r y definition of

m a n s la u g h t e r -- a n d thus not a crime of violence under the guidelines­if one of it s subsections requires less than a reckless state of mind." Bonilla, 524 F.3d at 654. The Michigan manslaughter statute does not define the crime; it merely p r o v id e s the penalty: "[a]ny person who shall commit the crime of manslaughter s h a ll be guilty of a felony punishable by imprisonment in the state prison, not m o r e than 15 years." M.C.L.A. 750.321. In Michigan, the definition of

m a n s la u g h t e r has been the province of common law. See People v. Steubenvoll, 2 8 N.W. 883, 889 (Mich. 1886). At common law, manslaughter is divided into t w o categories: voluntary and involuntary. People v. Carter, 197 N.W.2d 57, 67 (M ic h . 1972). Under Michigan law, voluntary manslaughter requires the intent t o kill or cause serious bodily harm. See People v. Younger, 158 N.W.2d 493, 495 (M ic h . 1968). As distinguished from murder, voluntary manslaughter is a 3

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No. 09-40907 " h o m ic id e which is not the result of premeditation, deliberation and malice but, r a t h e r , which is the result" of provocation and heat of passion. Id. This

d e fin it io n comports with the generic, contemporary definition of manslaughter a s a crime of violence. However, under Michigan law, involuntary manslaughter is committed by k illin g another by a negligent act or omission, which is also referred to as c r im in a l negligence or "gross negligence." See, e.g., People v. Orr, 220 N.W. 777, 7 7 9 (Mich. 1928). Gross negligence does not require the defendant to "be

p e r s o n a lly aware of the danger" or "knowingly and consciously" create the d a n g e r , only that the danger be "apparent to the ordinary mind." People v. J a c k s o n , 364 N.W.2d 310, 311 (Mich. Ct. App. 1985); see also Orr, 220 N.W. at 7 7 9 (defining mens rea for involuntary manslaughter as the "omission to use s u c h care and diligence to avert the threatened danger when to the ordinary m in d it must be apparent."). Thus, gross negligence in Michigan law is a lower m e n s rea than recklessness, which requires a conscious disregard of a s u b s t a n t ia l risk. See Dominguez-Ochoa, 386 F.3d at 646. H e r e , we must first consider what subpart of the statute, voluntary or in v o lu n t a r y manslaughter, the defendant violated. We can look to the "charging d o c u m e n t , written plea agreement, transcript of the plea colloquy, and any e x p lic it factual findings by the trial judge to which the defendant assented." See U n ite d States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008) (internal c it a t io n s omitted). The Michigan indictment reflects that Ruelas was originally c h a r g e d with second-degree murder by "[w]illfully, feloniously, maliciously, and w it h a design to effect the death of one Pepito Colon did kill and murder the said p e r s o n with a knife said act not being justifiable or excusable but being without p r e m e d it a t io n or deliberation against the peace and dignity of the people of the s t a t e of Michigan." However, the judgment shows that Ruelas was convicted by

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No. 09-40907 a jury of the lesser-included offense of manslaughter. No charging instrument related to the lesser offense of manslaughter appears in the record. In addition to considering the above, a district court can also "use all facts a d m it t e d by the defendant in determining whether the prior conviction qualifies a s an enumerated offense under § 2L1.2." See United States v. MendozaIn

S a n c h e z , 456 F.3d 479, 483 (5th Cir. 2006) (internal citation omitted).

M e n d o z a -S a n c h e z , the defendant admitted, during the rearraignment, that his p r io r state burglary conviction in Arkansas was for entering a house without p e r m is s io n . Id. This court held that, while the Arkansas burglary statute is b r o a d e r than the generic meaning of burglary because it encompasses structures o t h e r than dwellings, the defendant's admission at rearraignment establishes h is conviction as a crime of violence. Id. Similarly, Ruelas's counsel admitted, at the sentencing hearing, that R u e la s "was in a bar fight and of course he did have a knife with him. He says t h e other gentleman had a gun and they had gone outside to engage in mutual c o m b a t , and it resulted in the other gentleman's death, which [Ruelas] had been r e p e n t e n t for his entire life." Ruelas's counsel's statement that Ruelas went o u ts id e the bar to engage in combat with a knife constitutes an admission that R u e la s voluntarily engaged in an altercation with the victim. There is no d is p u t e that the altercation caused the death of the victim. Accordingly, that a d m is s io n , along with the presentence report, precludes finding that the prior c o n v ic t io n was only for a negligent act--involuntary manslaughter. See United S ta te s v. Fambro, 526 F.3d 836, 849-50 (5th Cir. 2008) (holding that, in plain e r r o r context, courts may rely on the presentence report, along with counsel's a d m is s io n s , to establish violent crime offenses in determining armed career c r im in a l classification). Based on these admitted facts, the district court could r e a s o n a b ly conclude that Ruelas's prior conviction was for voluntary m a n s la u g h t e r . As noted above, Michigan's voluntary manslaughter definition 5

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No. 09-40907 c o m p o r t s with the generic, contemporary definition of manslaughter as a crime o f violence. Thus, the district court did not err by applying the sixteen-level en h a n cem en t. Moreover, even if the admitted facts here were not enough to establish t h a t Ruelas's prior conviction was for voluntary, not involuntary, manslaughter, w e would not find plain error. At sentencing, the district court noted that d e fe n d a n t s like Ruelas often do not realize that a prior conviction "bumps them w a y up," but here, where Ruelas had been convicted to forty-one months in 2003 o n a reentry offense, the court thought that should have been "enough to c o n v in c e you that you shouldn't ever come back again." The district court then s t a t e d that "under the circumstances here . . . the court does believe that the g u id e lin e s range provided here [with the sixteen-level enhancement] is a p p r o p r ia te . I am going to sentence you within that range, but I will sentence y o u to a low end to a term of 51 months in custody." In sentencing Ruelas, the district court had (1) noted that Ruelas's prior s e n te n c e s and multiple deportations had not deterred his illegal entry, and (2) h e ld that a man who had killed another man with a knife outside of a bar had c o m m it t e d a crime of violence. Any error here does not seriously affect the fa ir n e s s , integrity, or public reputation of judicial proceedings. See United S ta te s v. Ellis, 564 F.3d 370, 378-79 (5th Cir. 2009) ("[E]ven if an increase in a s e n te n c e [is] seen as inevitably `substantial' in one sense it does not inevitably a ffe c t the fairness, integrity, or public reputation of judicial process and p r o c e e d in g s . To conclude that not correcting the error claimed here casts doubt u p o n the fairness, integrity, or public reputation of the proceeding drains all c o n t e n t from the doctrine of plain error."). For the foregoing reasons, we AFFIRM.

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