IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20482

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN GARCIA-PEREZ, also known as Juan Garcia, also known

as Johnny Garcia, also known as Guadalupe Garcia

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Juan Garcia-Perez was convicted of being illegally in the United States 

after deportation following commission of an aggravated felony. The district 

court applied a 16-level increase to the base offense level because it determined 

Mr. Garcia-Perez’s prior manslaughter conviction was a “crime of violence” 

under Sentencing Guideline § 2L1.2(b)(1)(A). Mr. Garcia-Perez argues that 

manslaughter as defined by the Florida statute of conviction does not qualify 

as a crime of violence, and thus the increase was error. We agree, vacate, and 

remand for resentencing.

I.

Juan Garcia-Perez was brought to the United States as an infant in 

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2015

Lyle W. Cayce

Clerk

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1969. In 1996, Mr. Garcia-Perez pled no contest to manslaughter under 

Florida Statute § 782.07. He was deported and re-entered the United States 

several times. In 2013, Mr. Garcia-Perez pled guilty without a plea agreement 

to being an alien unlawfully present in the United States after deportation 

following an aggravated felony. The probation officer calculated the base 

offense level as 8 under United States Sentencing Guidelines § 2L1.2(a) (2012) 

and increased the base level by 16 under § 2L1.2(b)(1)(A)(ii) because she found 

that the 1996 Florida manslaughter conviction was a “crime of violence.” After 

an acceptance of responsibility adjustment, the final offense level was 21.

Mr. Garcia-Perez objected to the 16-level increase in the PSR on the 

ground that manslaughter as defined by the Florida statute was not a “crime 

of violence.” At sentencing, defense counsel renewed Mr. Garcia-Perez’s 

objection, but the district court overruled it. The court sentenced Mr. GarciaPerez to 87 months in prison, the top of the guideline range, noting that it was 

tempted to depart upwards, but not doing so.1

II.

“Generally, this Court reviews the district court's application of the 

Sentencing Guidelines de novo.... When a defendant objects to his sentence on 

grounds different from those raised on appeal, we review the new arguments 

raised on appeal for plain error only.”2 In contrast, an argument is preserved 

when the basis for objection presented below “gave the district court the 

1 ROA.68

2 United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). Objections 

supported below by a given argument cannot preserve a completely different argument on 

appeal. See, e.g., United States v. Tang, 718 F.3d 476, 480-82 (5th Cir. 2013) (argument below 

that restriction would prevent defendant accessing Internet did not preserve argument on 

appeal that district court failed to explain the reasons for the restriction); United States v. 

Ellis, 720 F.3d 220, 224, 227 (5th Cir. 2013) (argument below that restriction imposed was 

excessive did not preserve argument on appeal that restriction was vague).

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opportunity to address” the gravamen of the argument presented on appeal.3

The “objection must be sufficiently specific to alert the district court to the 

nature of the alleged error and to provide an opportunity for correction.”4

The government argues that Mr. Garcia-Perez has changed his 

argument on appeal, and that we should review only for plain error. We 

disagree. On appeal, as below, Mr. Garcia-Perez argues that the 16-level 

increase did not apply because the prior conviction which qualified him for the 

enhancement was not a “crime of violence” under the Sentencing Guidelines. 

Both below and on appeal, his argument was that Florida’s manslaughter 

definition has no element of force and is not equivalent to “generic 

contemporary manslaughter.” While his argument has been refined on 

appeal,5 its essence was fairly presented to the district court. As such, we 

review de novo.

III.

United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2012) 

provides for a 16-level increase if “the defendant previously was deported ... 

after ... a crime of violence.”6 As the proponent of the increase, it is the 

government’s burden to establish “a factual predicate justifying [the]

3 United States v. Ocana, 204 F.3d 585, 588-89 (5th Cir. 2000) (argument preserved 

where, although defendant “did not specifically cite to the USSG section which the PSR 

applied, she did make a general objection that notified the court of her disagreement with 

the use of [a prior] offense in her sentencing”); see also, e.g., United States v. Cortez-Rocha, 

552 F. App'x 322, 324 (5th Cir. 2014) (objection to crime-of-violence enhancement preserved 

issue for appeal, although it was “short of the specific articulation and citation to authority 

of the arguments before us”).

4 United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). 5 Most saliently, in his earlier objection Mr. Garcia-Perez took no position on which of 

the three ways of committing Florida manslaughter was the “least culpable” and addressed 

them all. On appeal, he takes a position on which prongs represent the “least culpable” acts 

under the statute and focuses on those prongs.

6 Other prior felony convictions receive smaller increases. United States Sentencing 

Guidelines Manual § 2L1.2(b)(1)(B)-(D) (2012).

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sentencing adjustment, here that the offense constitutes a crime of violence.”7 

An offense may qualify as a crime of violence for these purposes in one of two 

ways: it must either have an element of force or it must fall within the “generic 

contemporary meaning”8 of one of the specifically listed offenses.9 Thus, if the

Florida manslaughter offense either has an element of force or falls within the 

generic contemporary meaning of the term “manslaughter,” which appears in 

the list of qualifying offenses, it is a crime of violence. 

In determining whether the Florida offense qualifies for the 

enhancement, “we look to state law to determine the offense's nature and 

whether its violation is a crime of violence under federal law.”10 We also “‘look[]

to the elements of the crime, not to the defendant's actual conduct in 

committing it.’”11 Thus we focus on the statute of conviction, though we may 

also consult “charging papers to see which of [] various statutory alternatives

were involved in a particular case.”12 Here, the parties agree that the statute

of conviction is Florida Statute § 782.07(1). At the time of the offense, it stated:

The killing of a human being by the act, procurement, or culpable

negligence of another, without lawful justification according to the

provisions of chapter 776 and in cases in which such killing shall 

7 United States v. Herrera-Alvarez, 753 F.3d 132, 135 (5th Cir. 2014) (internal brackets 

omitted) (quoting United States v. Bonilla, 524 F.3d 647, 655 (5th Cir.2008)); see also United 

States v. Hagman, 740 F.3d 1044, 1048 (5th Cir. 2014) (“‘The government must prove 

sentencing enhancements by a preponderance of the evidence.’”); United States v. HerreraSolorzano, 114 F.3d 48, 50 (5th Cir. 1997) (“The burden is on the party seeking to adjust the 

sentence level to prove ‘by a preponderance of the relevant and sufficiently reliable evidence 

the facts necessary to support the adjustment.’”). 8 See Part III.B infra.

9 See United States Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii); United 

States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir. 2002). 10 Herrera-Alvarez, 753 F.3d at 137 (quoting United States v. Martinez–Flores, 720 

F.3d 293, 297 (5th Cir.2013)). 11 United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir. 2010) (quoting United 

States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc); see also Herrera-Alvarez, 

753 F.3d at 137-38.

12 Andino-Ortega, 608 F.3d at 309 (quoting Calderon-Pena, 383 F.3d at 258); see also

Herrera-Alvarez, 753 F.3d at 138.

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not be excusable homicide or murder, according to the provisions 

of this chapter, shall be deemed manslaughter and shall constitute 

a felony of the second degree....13 

The current version of the section has been amended slightly for form, but 

remains essentially the same.

A.

We first consider whether the Florida manslaughter offense has an 

element of force.14 In order to qualify an offense as a crime of violence under 

the force prong, “the intentional use of force must be a constituent part of [the 

prior offense] that must be proved” to convict.15 “The ‘force’ necessary under 

this provision must rise to the level of ‘destructive or violent force.’”16 

Florida courts have repeatedly set out the elements that must be proved

to convict under the manslaughter statute, and an element of force makes no 

appearance. Rather, the state must show that “(1) the victim is dead, (2) the 

death was caused by the act, procurement or culpable negligence of the 

defendant, and (3) the killing was not justified or excusable homicide.”17 A 

Florida manslaughter conviction simply does not require proof of force.

Bolstering this conclusion, we have previously held that an “injury to a 

13 Fla. Stat. § 782.07(1) (1995).

14 Mr. Garcia-Perez argues that it does not, and the government does not attempt to 

show otherwise. 

15 United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (internal 

quotation marks omitted); see also United States v. Castaneda, 740 F.3d 169, 172-73 (5th Cir. 

2013) (unpublished) (finding that a Texas burglary statute did not contain “as an element 

the use, attempted use, or threatened use of force”). 16 Herrera-Alvarez, 753 F.3d at 137.

17 State v. Richards, 639 So. 2d 680, 681 (Fla. Dist. Ct. App. 1994); see also 

Cunningham v. State, 385 So. 2d 721, 722 (Fla. Dist. Ct. App. 1980) (“[T]he two affirmative 

elements ... are (1) the killing; and (2) a causative link between the death of the victim and 

the act, procurement, or culpable negligence of another.”); see also State v. Montgomery, 39 

So. 3d 252, 256 (Fla. 2010) (“[W]here one commits an act that results in death, and such an 

act is not lawfully justified or excusable, it is manslaughter.”); Eversley v. State, 748 So. 2d 

963, 965-66 (Fla. 1999) (defining elements of culpable negligence manslaughter).

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child” offense defined in terms of the causation of injury by intentional act did 

not contain a force element.18 This was because “[i]f any set of facts would 

support a conviction without proof of that [force] component, then the 

component most decidedly is not an element ... of the crime.”19 Intentional 

injury to a child could be committed by poison, for example, which would not 

be “use of physical force” for these purposes.20 This holding logically extends 

to offenses defined in terms of the causation of death, such as the Florida 

statute at issue. We find that § 782.07(1) does not have an element of force.

B.

We now turn to the second, closer question: whether Florida’s 

manslaughter provision falls within the list of enumerated “crimes of violence”

for purposes of §2L1.2(b)(1)(A). “Manslaughter” is one of the Guidelines 

Manual’s listed “crimes of violence” which qualify for the contested 

enhancement,21 but that observation does not end our inquiry. Rather, we 

must determine what the Sentencing Guidelines mean by the term 

“manslaughter” and then decide whether the Florida manslaughter offense

falls within that definition.22 The parties’ dispute centers on the mental state 

required with respect to death by the Florida manslaughter statute, so we focus 

our discussion on that issue.

Because the Guidelines Manual does not define “manslaughter” as it 

applies to the crime of violence enhancement at issue, “we must define it 

according to its generic contemporary meaning, and should rely on a uniform 

18 Andino-Ortega, 608 F.3d at 310-311. 19 Id. at 311 (quoting Vargas-Duran, 356 F.3d at 605).

20 Id.; see also Herrera-Alvarez, 753 F.3d at 138-39 (discussing the element of force 

and poison with regard to a Louisiana aggravated battery statute).

21 United States Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii).

22 See United States v. Bonilla, 524 F.3d 647, 655 (5th Cir. 2008) (finding New York 

offense was not a “crime of violence” where it “criminalize[d] a broader range of conduct than 

that encompassed by the generic, contemporary offense of manslaughter”).

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definition, regardless of the labels employed by the various States’ criminal 

codes.”23 The inquiry is simple for our purposes because we have already held 

that generic contemporary manslaughter requires a mental state of either 

intent to kill or recklessness—“conscious disregard of perceived homicidal 

risk.”24 

1.

We proceed to compare the mental state required by generic 

contemporary manslaughter to that required by the Florida manslaughter 

statute of conviction. The parties agree that Mr. Garcia-Perez may have been 

convicted of manslaughter by act, by procurement, or by culpable negligence. 

Because the conviction may rest on any one of these three methods,25 we must 

determine whether the “least culpable” of the three qualifies as generic 

contemporary manslaughter.26 If the least culpable prong of § 782.07(1) 

requires either recklessness as to death or intent to kill, then the section as a 

whole falls within the definition of generic contemporary manslaughter and

there was no error in imposing the enhancement. 

In Chan-Gutierrez, an unpublished opinion, we held that “[t]he least 

culpable act under the Florida manslaughter statute is manslaughter by 

23 United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004) (internal 

quotation marks and citations omitted) (referring to the same guideline in the 2002 edition 

of the manual). In determining the generic contemporary meaning, we look to sources “such 

as the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary 

definitions.” Herrera-Alvarez, 753 F.3d at 137 (internal quotation marks omitted). 24 Bonilla, 524 F.3d at 654 (citing Dominguez-Ochoa, 386 F.3d at 642, 645-46).

25 See, e.g., Government Br. 26 (“[I]t is unclear from the “charging document, written 

plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial 

judge to which the defendant assented” what subpart of the statute the defendant 

violated....”) (quoting United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008)).

26 See Moreno-Florean, 542 F.3d at 449 (“If the statute of conviction cannot be 

narrowed, we consider ‘whether the least culpable act constituting a violation of that statute 

constitutes ‘kidnapping’ for purposes of U.S.S.G. § 2L1.2.’”) (citing United States v. GonzalezRamirez, 477 F.3d 310, 315-16 (5th Cir. 2007)).

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culpable negligence” and that “culpable negligence” is equivalent to generic 

contemporary manslaughter’s “recklessness” requirement.27 No party 

challenges the holding that culpable negligence is equivalent to recklessness. 

Instead, Mr. Garcia-Perez argues that Chan-Gutierrez was mistaken in 

holding culpable negligence manslaughter to be the least culpable act under 

§ 782.07(1). To the contrary, he argues that act and procurement 

manslaughter are less culpable conduct and fall outside of “generic 

contemporary manslaughter” because they do not require recklessness as to 

death or intent to kill. 

2.

a.

To determine the mental state required for commission of manslaughter 

by act,28 we turn to Florida case law. In line with earlier cases,29 the Florida 

Supreme Court recently confirmed in Montgomery that manslaughter by act 

does not require “that the defendant intend to kill the victim. Instead ... where 

one commits an act that results in death, and such an act is not lawfully 

justified or excusable, it is manslaughter.”30 Driving home the point, the court 

restated its holding: “the intent which the State must prove for the purpose of 

manslaughter by act is the intent to commit an act that was not justified or 

27 United States v. Chan-Gutierrez, 368 F. App'x 536, 538 (5th Cir. 2010). 28 Because Mr. Garcia-Perez’s procurement-prong argument is based on a logical 

extension of his act-prong argument, we focus on manslaughter by act. See Garcia-Perez 

Initial Br. 26-27.

29 See the cases discussed in Part III.B.2.b infra.

30 State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010). Before 2010, some Florida 

courts had interpreted Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983) to stand for the 

principle that intent to kill was required to prove act manslaughter. See Montgomery v. State, 

70 So. 3d 603, 604-06 (Fla. Dist. Ct. App. 2009) (noting and explaining the split in authority). 

State v. Montgomery dispelled this confusion, which arose from statements about intent to 

kill, attempt, and voluntary versus involuntary manslaughter. See id.

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excusable, which caused the death of the victim.”31 

b.

Montgomery makes clear that intent to kill is not required to prove act 

manslaughter; it does not state whether recklessness as to the risk of death is 

required. The silence as to recklessness in Montgomery leaves undisturbed a 

line of cases stretching back over one hundred years which have held that 

unexpected deaths caused by intended acts can be enough to prove 

manslaughter.

In 1892 in Baker v. State, considering an earlier, but similar,32

manslaughter statute, the Florida Supreme Court rejected the idea that death 

“must have been not only directly or indirectly caused by the acts of the 

defendant, but must have been such as to be one of the reasonable or probable 

results of such acts.”33 Rather, “the fact that it could not reasonably have 

occurred to the defendant, or did not occur to him, that death was a probable 

result of the act, does not prevent a conviction of manslaughter.”34 In 1930, 

the Florida Supreme Court reaffirmed Baker in a case where a 16-year-old girl 

shot her husband in the leg, after which he died of gangrene. The court stated 

that “the fact that it did not occur to the defendant that the death ... was a 

31 Montgomery, 39 So. 3d at 259-60; see also Haygood v. State, 109 So. 3d 735, 741 (Fla. 

2013) (noting that instruction on manslaughter by act was appropriate where “the evidence 

in this case supported a finding that [defendant] intentionally committed an act or acts, and 

that the act or acts resulted in the victim’s death”). 32 See Tipton v. State, 97 So. 2d 277, 285 (Fla. 1957) (noting similarities between the 

manslaughter statute considered in Baker and the then-contemporary statute, which is in 

turn strikingly similar to the present version); Eversley, 748 So. 2d at 965-66 (noting that the 

1906 version of the manslaughter statute and the 1995 version contained the same elements); 

Maynard v. State, 660 So. 2d 293, 296 (Fla. Dist. Ct. App. 1995) (turning to Baker for guidance 

on the required state of mind of the defendant); Rodriguez v. State, 443 So. 2d 286, 289-90 & 

n.8 (Fla. 1983) (explaining that the basic definition remained unchanged between 1892 and 

1983). 

33 Baker v. State, 11 So. 492, 498 (Fla. 1892). 34 Id.

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reasonable or probable result of the defendant's assault does not prevent a 

conviction of manslaughter.”35

In 1957, the Florida Supreme Court decided Tipton v. State36 which, like 

Baker, involved heated words, a battery, and a subsequent death likely related 

to the victim’s underlying health condition. The court expressed concern at the 

broad wording of the manslaughter statute,37 and explained that: 

Consideration of the act in its surroundings at the time of its 

commission, not of the results alone, should determine criminal 

responsibility for manslaughter under the Florida homicide 

statute. It is necessary for the act to result in the death of a human 

being under the definition of homicide; but this does not relieve the 

courts of a duty to study the act itself to determine whether the 

punishment for manslaughter should be applied.38

Notwithstanding this caution, the court issued a limited holding rather 

than drastically altering the interpretation of the manslaughter statute. The 

court found that “[t]he statute itself provides [the] guideposts”39 to determine 

what acts should be punished as manslaughter, and analyzed the case in terms 

of those statutory exceptions. The court concluded that the battery in Tipton

may have been “excusable homicide” because it constituted a “sudden combat,” 

and overruled Baker to the extent that it held the actions in that case were not 

excusable “sudden combat.”40 The court also found the state had not provided

sufficient evidence to prove a causal link between the battery and death.41 

Tipton signaled that the causation and excuse/justification inquiries 

were to be taken seriously. However, the court expressly did not disturb either 

35 Gainer v. State, 129 So. 576, 577 (Fla. 1930). 36 97 So. 2d 277 (Fla. 1957). 37 Id. at 281.

38 Id.

39 Id.

40 Id. at 281-82, 285.

41 Id. at 285.

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Baker’s holding that “the fact that it could not reasonably have occurred to the 

defendant, or did not occur to him, that death was the probable result of the 

act, does not prevent a conviction of manslaughter” or Gainer’s similar 

holding42 Indeed, the Florida Supreme Court favorably cited Baker again in 

1975 in Swan for the proposition that “Criminals take their victims as they 

find them.”43 In the absence of contrary authority, this line of cases establishes

that something less than recklessness as to death is required to prove act 

manslaughter.

c.

In recent years, Florida courts have made clear that the bounds of act 

manslaughter are not unlimited. Consistent with Tipton’s serious treatment 

of the causation requirement, the Florida Supreme Court explained that 

manslaughter convictions require both cause-in-fact and proximate cause 

showings.44 Proximate cause is decided based on an inquiry into “(1) whether 

the prohibited result of the defendant's conduct is beyond the scope of any fair 

assessment of the danger created by the defendant's conduct and (2) whether 

it would be otherwise unjust, based on fairness and policy considerations, to 

hold the defendant criminally responsible for the prohibited result.”45 One 

Florida court of appeals has held that both proximate cause prongs are 

satisfied where there is medical testimony that a given act “can cause the type 

of injury and death which occurred” (first prong), and where none of the 

statutory excuses or justifications are present (second prong).46

42 Id. at 284 (“[The Baker] holding can be granted as valid without affecting the 

decision in the case at bar, therefore we will not discuss Gainer v. State, supra, which 

involved the same point.”). 

43 Swan v. State, 322 So. 2d 485, 487 (Fla. 1975). 44 Eversley v. State, 748 So. 2d 963, 966-67 (Fla. 1999). 45 Id. at 967.

46 Weir v. State, 777 So. 2d 1073, 1076 (Fla. Dist. Ct. App. 2001).

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In addition to the causation inquiry, Florida courts have continued to 

stress the importance of the excuse and justification exceptions to 

manslaughter. Because manslaughter is a “residual offense,” these exceptions 

are of fundamental importance to its definition.47 Killing in defense of self or 

others is not manslaughter.48 Neither is accidental killing in the course of 

lawful acts performed “with usual ordinary caution,” accidental killing “in the 

heat of passion,” or accidental killing as a result of “sudden combat” without 

dangerous weapons.49 Several cases have focused on defendants who threw a 

sudden punch at victims, some in the context of teenage disputes, and found 

that such conduct is not covered by any of the excuses.50

Both the causation and excuse/justification inquiries limit the scope of 

act manslaughter, but neither limits the offense to only acts committed with 

conscious disregard of a perceived risk of death. Consistent with these limits, 

the Florida courts of appeals have emphasized the state’s causation burden,51

47 Montgomery, 39 So. 3d at 258; State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994). 48 See Fla. Stat. § 782.07(1); Rojas v. State, 552 So. 2d 914, 914 (Fla. 1989) (in 

manslaughter case, setting out lower court’s instructions on justifiable homicide and noting 

that they “essentially track[] the ... Standard Jury Instructions”); Pena v. State, 829 So. 2d 

289, 294 (Fla. Dist. Ct. App. 2002) (reciting standard justifiable homicide instruction). 

49 See Fla. Stat. § 782.07(1); Rojas, 552 So. 2d at 914 (in manslaughter case, setting 

out lower court’s instruction on excusable homicide which tracked standard jury instruction);

Pena, 829 So. 2d at 294-95 (reciting standard jury instruction for excusable homicide).

50 See J.J.W. v. State, 892 So. 2d 1189, 1190-92 (Fla. Dist. Ct. App. 2005) (finding that 

even if victim was killed by initial single punch of teenage defendant, manslaughter 

conviction was sound where there was evidence defendant threw the punch while victim was 

unprepared and not a threat); Acosta v. State, 884 So. 2d 112, 115 (Fla. Dist. Ct. App. 2004)

(evidence supported manslaughter verdict where victim killed by a punch by teenage 

defendant was unprepared and defendant contemplated fight before it began); Weir, 777 So. 

2d at 1075-76 (finding single punch which led to death was not excusable where punch was 

sudden and there was no other physical exchange between defendant and victim).

51 Tyus v. State affirmed a manslaughter conviction where the victim died of heart 

attack as a result of defendant’s burglary. The court did not ask whether the defendant 

disregarded a known risk but rather whether death was “beyond the scope of any fair 

assessment of the danger created.” 845 So. 2d 318, 321-22 (Fla. Dist. Ct. App. 2003).

Penton v. State found evidence that the theft of a bicycle led to release of fat emboli 

and death of the victim was insufficient to support a manslaughter conviction, in part because 

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as well as the excuse/justification inquiry,52 but have not undercut Baker’s

holding that unanticipated death can support a negligence conviction. Indeed, 

Florida courts of appeal have continued to find that manslaughter can be 

committed without conscious disregard of a perceived homicidal risk.53

Finally, we note that Florida’s Standard Jury Instructions were

amended in 2011 to exclude from manslaughter “merely negligent act[s].”54

This change does not on its face purport to limit act manslaughter to only cases 

involving conscious disregard of the risk of death.55 In any event, the 

amendment did not overturn the cases holding that recklessness as to death is 

not required to prove manslaughter given that the Florida Supreme Court, in 

authorizing the instruction, “express[ed] no opinion on its correctness.”56

of equivocal medical testimony. 548 So. 2d 273, 274-75 (Fla. Dist. Ct. App. 1989) (basing its 

analysis on culpable negligence cases, and part of Tipton that dealt with culpable negligence). 

Todd v. State held that in order to establish causation for manslaughter, the state 

must prove at least the legal causation required by tort law. 594 So. 2d 802, 805-06 (Fla. 

Dist. Ct. App. 1992). This standard apparently requires the harm to be “foreseeable” but does

not require reckless disregard of a known risk. Id. (listing cases which set out the standard).

52 See, e.g., J.J.W., 892 So. 2d at 1190-92; Acosta, 884 So. 2d at 115; Weir, 777 So. 2d 

at 1075-76; Aiken v. State, 425 So. 2d 641, 643-44 (Fla. Dist. Ct. App. 1983). 53 See Hall v. State, 951 So. 2d 91, 93, 95-96 (Fla. Dist. Ct. App. 2007) (upholding 

manslaughter by act conviction where victim’s death was a “very unusual” reaction to a single 

punch to the jaw because it was the unintentional result of an intentional act), abrogated on 

different ground, Williams v. State, 123 So. 3d 23 (Fla. 2013); Maynard v. State, 660 So. 2d 

293, 296 (Fla. Dist. Ct. App. 1995) (“[T]he fact that the appellant had no way of knowing that 

the victim suffered from severe heart disease and that this condition could be fatally 

exacerbated by her criminal conduct does not absolve her of liability for manslaughter. ... 

[T]he fact that it could not reasonably have occurred to the defendant, or did not occur to him, 

that death was a probable result of the act, does not prevent a conviction.”) (quoting Baker, 

11 So. at 498)). See also supra note 50, listing cases where act manslaughter convictions were 

upheld without inquiries into defendants’ mental states as to death.

54 In re Amendments to Standard Jury Instructions in Criminal Cases--Instruction 7.7, 

75 So. 3d 210, 211 (Fla. 2011). 55 Id. (defining negligence as follows: “Each of us has a duty to act reasonably toward 

others. If there is a violation of that duty, without any conscious intention to harm, that 

violation is negligence”).

56 Id. (“In authorizing the publication and use of the instruction, we express no opinion 

on its correctness and remind all interested parties that this authorization forecloses neither 

requesting additional or alternative instructions nor contesting the legal correctness of the 

instruction.”). The instruction had not been amended when Mr. Garcia-Perez was convicted.

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3.

We are persuaded that Florida manslaughter by act covers more than 

just those acts committed with intent to kill or recklessness as to death. 

Section 782.07(1) thus falls outside the definition of generic contemporary 

manslaughter. The unpublished case relied upon by the government does not 

persuade us otherwise. In Chan-Gutierrez, lacking the benefit of the Florida 

Supreme Court’s clarifying Montgomery decision,57 we stated without 

explanation that culpable negligence was the least culpable conduct under the 

Florida statute.58 Then, based on analysis of only the culpable negligence 

prong, we held that Florida’s manslaughter statute “does not punish any 

conduct beyond that covered by ‘generic, contemporary’ manslaughter.”59 

Having now examined the act prong, we are persuaded that Chan-Gutierrez

was mistaken insofar as it held that Florida manslaughter by act punishes only 

“generic contemporary manslaughter.” 

Additionally, we note that two federal district courts have held that the 

manslaughter offense is a crime of violence for purposes of the career offender 

enhancement, but we do not find them persuasive. Johnson v. United States

did not consider the argument that manslaughter by act does not require proof 

of recklessness.60 Cook v. United States based its conclusion entirely on 

57 Montgomery was published one month after Chan-Gutierrez. 58 United States v. Chan-Gutierrez, 368 F. App'x 536, 538 (5th Cir. 2010). 59 Id. at 539. We have also stated in dicta and without explanation that act and 

procurement manslaughter require more than “ordinary negligence.” Charlton v. 

Wainwright, 588 F.2d 162, 164 (5th Cir. 1979). The question in Charlton was whether 

attempted manslaughter by culpable negligence was a logical impossibility. Id. at 163-64. 

The Court’s statements about act and procurement manslaughter were thus unnecessary to 

its holding. See id. at 163. Moreover, the statements only loosely relate to the issue at hand 

because they are based in the attempt context and do not deal with the “crime of violence” 

issue. Even were we to give full effect to Charlton’s dicta, it would not answer the question 

whether Florida act manslaughter covers only acts undertaken with recklessness as to death.

60 Johnson v. United States, No. 09-20996-CIV, 2010 WL 4811075, at *1-2, 4 (S.D. Fla. 

Nov. 19, 2010).

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Johnson and Chan-Gutierrez.61

IV.

Because § 782.07(1) neither has an element of force nor punishes only

generic contemporary manslaughter, it is not a crime of violence for purposes 

of Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). It was thus error to enhance Mr.

Garcia-Perez’s offense level by 16 levels on the basis of his manslaughter 

conviction. Had the 16-level “crime of violence” enhancement not been 

erroneously applied, Mr. Garcia-Perez would have been subject to, at most, an 

8-level “aggravated felony” enhancement under § 2L1.2(b)(1)(C).62 All else 

being equal, the smaller enhancement would produce a total offense level of 

13, which, coupled with Mr. Garcia-Perez’s criminal history category of V, 

would result in a Guideline range of 30 to 37 months. This range is 50 to 57 

months less than the 87-month prison sentence imposed. 

The government bears the burden to “convincingly demonstrate[] both 

(1) that the district court would have imposed the same sentence had it not 

made the error, and (2) that it would have done so for the same reasons it gave 

at the prior sentencing.”63 The government has made no attempt to meet this 

burden, and we doubt that it could given the substantial difference between 

the 30 to 37 month Guideline range and the sentence imposed.64 

Notwithstanding the district court’s comments about being tempted to depart 

upwards, the record does not show that the court would have “impose[d] the 

61 Cook v. United States, No. 8:05-CR-404-T-24TGW, 2011 WL 5420799, at *8-9 (M.D. 

Fla. Nov. 9, 2011). 62 Mr. Garcia-Perez does not concede that the 8-level enhancement would apply, and 

we offer no opinion on the matter.

63 United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). 64 See, e.g., United States v. Castaneda, 740 F.3d 169, 175 (5th Cir. 2013) (finding, on 

plain error review, that error affected substantial rights and the fairness, integrity, and 

public reputation of the proceeding, due to the substantial difference between the 

recalculated guidelines and the sentence imposed).

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same sentence if there had not been a 16-level enhancement based on the prior

crime of violence.”65 The error was not harmless. 

We VACATE the judgment of sentence and REMAND for resentencing.

65 United States v. Martinez-Flores, 720 F.3d 293, 300-301 (5th Cir. 2013); see also

Ibarra-Luna, 628 F.3d at 719 (explaining that although the record indicated the district court 

would have imposed an above-guidelines sentence even in light of the correct range, it had 

not been established with “requisite certainty” that the court “would have imposed precisely 

the same sentence” but for the error).

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