1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60319

Summary Calendar

VICTOR GARCIA LIZAMA,

Petitioner,

VERSUS

UNITED STATES PAROLE COMMISSION,

Respondent.

Appeal from the Determination of the

United States Parole Commission

April 2, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Petitioner V ictor Lizama is a federal prisoner who was

transferred to the United States from Mexico to continue serving a

Mexican sentence for “Simple Homicide.” The United States Parole

Commission (“Commission”) determined a release date for petitioner

purs uant to 18 U.S.C. § 4106A(b)(1)(A). Petitioner appeals the

Commission’s determination that the federal offense most analogous2

to Lizama’s Mexican crime was second-degree murder. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Lizama, a United States citizen, killed Jose Martin Rios

Hernandez in La Paz, Baja California, Mexico, on November 28, 1996.

According to the Mexican court documents, available to the

Commission in English translation, the following facts were proven

at trial:

...the autopsy, [wherein] the injurie s to the body are

described, stating that JOSE MARTIN RIOS HERNANDEZ, died

due to the described injuries and the autopsy which

determines the cause of death was CRANIAL TRAUMATISM. It

is also determined that said injury was produced by a

contusive object or agent;

. . . . With said documents,

it was undoubtably [sic] proven tha t on November 28,

1996, at approximately ten thirty ho urs, there was a

problem bet ween C. VERONICA SANCHEZ MOLINA and the

defendant/appellant. Therefore the latter began chasing

her in order to harm her; she asked for help and the

deceased JOSE MARTIN RIOS HERNANDEZ came and who after

telling VICTOR LIZAMA to leave VERONICA alone because she

‘had a belly’ [was pregnant], hit him over the head with

a ‘ballena’ bottle, causing h im to bleed and began

running in order to separate himself [Hernandez] from the

defendant but was unable to. VICTOR LIZAMA caught up

with him and beat him, causing injuries which finally led

to his death, therefore the HOMICIDE was du e to the

assaul t he suffered by the deceased. When he [Lizama]

beat the deceased to death, the latter was intoxicated,

which implies he is a danger to society and because of

this, is even more dangerous, justifying then, that the

sentencing judged the same as aggravated due to material

and moral implications of it, considering VICTOR LIZAMA

as an adult criminal, who used his own hands to commit

the crime of SIMPLE INTENTIONAL HOMICIDE.

Lizama was arrested at the scene and detained by Mexican

authorities. He was convicted by a Mexican court on the charge of

Simple Homicide on May 26, 1998 and sentenced to 14 years’3

imprisonment. Lizama transferred to the United States to serve his

sentence, pursuant to a prisoner-exchange treaty between the United

States and Mexico. S ee Treaty on Execution of Penal Sentences,

N ov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399. The Commission

determined a re lease date for Lizama, pursuant to 18 U.S.C. §

4106A (2000), based on the sentencing guidelines “of a similar

offense.” § 4106A(b)(1)(A). The U.S. probation officer who

prepared Lizama’s post-sentence report found that the most

analogous federal offense was voluntary manslaughter, 18 U.S.C. §

1112(a). After holding a hearing, a Commission examiner adopted

the probation officer’s recommendation, and recommended that Lizama

be released after 51 months.

A Commission case reviewer di d not agree with the voluntary

manslaughter dete rmination, and a rehearing was ordered. A

different examiner initially agreed with the voluntary manslaughter

determination, but later changed her mind and recommended that the

m ost analogous offense was second-degree murder. 18 U.S.C. §

1111(a). The Commission adopted this recommendation, determined

that the guideline range was 168-210 months, and sentenced Lizama

to serve 168 months in prison, followed by 60 months or until the

full term date of his foreign sentence, whichever is earlier, on

supervised release.

DISCUSSION

Lizama argues o n appeal that voluntary manslaughter is the4

federal o ffense most analogous to his Mexican crime rather than

second-degree murder as the Commission found.

A. Standard of Review

We decide an appeal of the Commissi ons’s determination, in

accordance with 18 U.S.C. § 3742 , as though the determination

appealed had been a sentence imposed by a United States district

court. 18 U.S.C. § 4106A(b)(2)(B). Accordingly, we review the

Commission’s legal determinations de novo

. M o lano-Garza v. U.S.

Parole Commission

, 965 F.2d 20, 23 (5th Cir. 1992). When reviewing

the Commission’s factual findings, we apply the clearly erroneous

standard. Id.

B. Commission’s Similar Offense Determination

In determining a release da te for a transfer offender, the

C ommission considers the recommendations of the U.S. Probation

Service and any documents from the transferring country. 18 U.S.C.

§ 4106A(b)(1)(B). The regulations also provide that “[t]he

Commission shall take into account the offense definition under

foreign law, the length of the sentence permitted by that law, and

the underlying circumstances of the offense behavior.” 28 C.F.R. §

2.68(g)(1999).

Homicide under Article 123 of the Baja Penal Code states,

“Whomever deprives another of his life commits the crime of

homicide.” The Baja statute establishes three ranges of punishment

for homicide, depending on the defendant’s mens rea and the1 The term “malice” has a different meaning under the Baja Penal

Code, than in United States jurisprudence. K leeman v. U.S. Parole

Comm’n

, 125 F.3d 725, 731 n.7 (9th Cir. 1997). A discussion of

malice by the Mexican courts is not dispositive of whether Lizama

acted with the requisite malice to classify his crime as second

degree murder in the United States. Id.

5 circumstances surrounding the crime: Willful Homicide (“ Homicidio

Calificado ”)

– 16-30 years’ imprisonment; Simple Homicide

(“ Homicidio Simple”)

- 8-15 years’ imprisonment; and Homicide in an

Affray (“ Homicidio en Rina”) - 4-10 years’ imprisonment. Article

147 def ines the most serious homicide, Willful Homicide, as

follows: “It is understood that assault a nd homicide are willful

when they are committed with premeditation, w ith superior

advantage, with malice 1 or treachery.” Article 146 defines affray

for purposes of the least serious homicide provision as follows: “a

physical, not verbal dispute between two or more persons, with the

purpose of causing on e another mutual harm.” Simple Homicide

appears to be the default statute applied if the crime does not

fall into either the more or less serious provisions.

In sentencing Lizama, the Mexican court rejected bot h the

prosecutor’s claim that Lizama had committed willful homicide and

Lizama’s claims that he was responsible only for Homicide in an

Affray and that he acted in self-defense. The court found that,

Lizama’s “behavior can in no way be judged defensive.” The court

also declined to find that Lizama had committed Homicide in an

Affray, because “[t]here was then no intention between the parties6

to cause each other harm, so there is never the typical behavior of

a fight.” The Mexican court therefore concluded that Lizama was

guilty of Simple Homicide and sentenced him to 15 years’

imprisonment.

T he Commission found that the United States federal offense

most analogous to Lizama’s Mexican crime of Simple Homicide was

second-degree murder, in violation of 18 U.S.C. § 1111(a):

Murder is the unlawful killing of a human being with

malice aforethought. Every murder perpetrated by poison,

lying in wait, or any other kind of willful, deliberate,

malicious, and premeditated killing; or committed in the

perpetration of , or attempt to perpetrate, any arson,

rape, burglary, or robbery; or p erpetrated from a

premeditated design unlawfully and maliciously to effect

the death of any human being other than him who is

killed, is murder in the first degree.

Any other murder is murder in the second degree.

Lizama argues that the Commission erred because voluntary

manslaughter is more analogous than second degree murder to Simple

Homicide under the circumstances of his case. Voluntary

manslaughter is defined in 18 U.S.C. § 1112(a) as:

the unlawful killing of a human being without malice

. . . [u]pon a sudden quarrel or heat of passion.

Specifically, Lizama contends that he killed in a “heat of

passion” induced by Hernandez’s blow to the back of his head, which

negates the existence of malice, an essential elem ent of second

degree murder. A defendant who kills in a heat of passion in

response to adequate provocatio n is guilty only of voluntary

manslaughter. U

nited States v. Browner

, 889 F.2d 549, 552 (5th7

C ir. 1989). A “heat of passion” is a passion of fear or rage in

which the defendant loses his normal self-control as a result of

circumstances that would provoke such a passion in an ordinary

person, but which did not justify the use of deadly force. I d.

However, a blow will not reduce a homicide to voluntary

manslaughter when the defendant “by his own prior conduct (as by

v igorously starting the fracas) was responsible for that violent

blow.” W A YNE R. L A F AVE & A USTIN W. S COTT

, J R

., S UBSTANTIVE C RIMINAL L AW §

7.10(b)(1)(1986).

Lizama contends that he was not responsible for the blow he

received because he had not yet assaulted Hernandez when Hernandez

hit him on th e back of the head with a large beer bottle. The

Mexican court documents belie this position, finding that Hernandez

struck Lizama “because as any citizen, he was defending a woman who

at that time was being assaulted by the sentenced defendant and

because of this, the deceased hit him

. . . and [then] the deceased

ran.” The Commission, giving due deference to the Mexican court’s

finding, rejected Lizama’s position and found that Hernandez struck

Lizama in order to defend Molina, whom Lizama was “chasing and

threatening.” “The examiner does not find that [Lizama] had

adequate provocation for

. . . the assault on the victim.

[Lizama’s] own actions in chasing and threatening Ms. Molina caused

the victim to intercede on her be half.” Lizama’s version of the

events, which would req uire the Commission to contradict the8

Mexican court’s conclusions, were properly rejected by the

examiner.

We find no error in the factual basis of the Commission’s

d ecision and or in the ultimate determination that second deg ree

murder is the crime most analogous to Simple Homicide under the

Baja penal code and the particular facts of this offense. We

therefore affirm the Commission’s ruling.

AFFIRMED.