FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S TA T E S O F A ME R I C A , Plaintiff-Appellee ,

v
. H U G O S ALV

AD O R RI VE R

A -M U N I Z , AKA Hugo Salvador Rivera, AKA Hugo Salvadore Rivera,

Defendant-Appellant. No. 15-10560
D.C. No. 4:14-cr-01930- JGZ -LAB-1

OPINION

Appeal from

the United States District Court f or the District of Arizona Jennifer G. Zipps, District Judge, Presiding Argued and Subm itted December 16, 2016 San Francisco, California Filed April 20, 2017 Before: Jay S. Bybee and N. Randy Sm ith, Circuit Judges, and Leslie E. Kobayashi, * District Judge. Opinion by Judge Kobayashi

* The H on o rable Leslie E. K obayashi, Judge for the United States District Court for the District of Hawaii, sitting by designation.U N I T E D S TA T E S V

. RIVE R A -M U N I Z 2
SUMMARY * *

Criminal Law
Affirm ing a sentence, the panel held that Cal. Penal Code § 192(a) ma tches the g eneric definition of “m anslaughter” and is therefore categoric a l ly a crim e of violence under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.

C OUNSEL Stephanie Bond (argue d ) , The Law Offices of S tephanie K

. Bond P.C., Tucson, Arizona, for Defendant-Appellant.
Lauren G. LaBuff (argued), and Christi n a M

. C abanillas, Assistant Uni t e d States Attorneys; Robert L. Miskell, Appellate Chief; John S

. L eonardo, United States Attorney; United S tates Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S TA T E S V

. RIVE R A -M U N I Z 3
OPINION KOBAYASHI, District Judge:
This appeal q

uestions whether a convictio n for
m anslaughter under California Penal Code sect i o n 192(a) is
a cate g o r i ca l c ri me o f v i o lence for purposes o f § 2L1.2(b)(1)(A)(ii) of the United Stat e s Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”). 1 W e review the district court’s determ ination that Rivera-Muniz’s pr i o r c onviction constitutes a crim e of violence de novo. United States v. Marcia-Acosta , 780 F. 3 d 1244, 1248 (9th Cir. 2015). W e affirm

. I
On Ju l y 8, 2015, Rivera-Muniz pleaded guilty to reentering the Un ited States without authorization after having b een deported o r r emoved in violation of 8 U.S.C. § 1326(a), enhanced b y § 1326(b)(2). At the sentencing hearing, the district court considere d Rivera-Muniz’s previous conviction for v oluntary man s laughter under California Penal Code section 192(a) and concluded that it
was an enum erated crim e of v iolence that triggered a 16-level
senten cin g e nh an cem e nt un d er U

. S

. S.G. § 2L1.2(b )(1 )(A )(ii). However, the district court also applied a 7-level downward variance, thus sentencing Rivera-Muniz to twenty-seven

1 Citations to t

he Sentencing Guidelines reference the 2014 Guidelines, which w ere in effect when Rivera-Muniz was sentenced. United States v. Thomsen , 830 F.3d 1049 , 1 0 7 1 (9th Cir. 2016). Am endm ents effective Novem ber 1, 2016 , elim inated the language o f U.S.S.G. § 2L1.2 at issue in the i n s t ant appeal. U.S. S entencing G uidelines Manual supp. to app. C, am end. 802, at 147– 4 9 (U

. S. Sentencing Comm ’n 2016).U N I T E D S TA T E S V

. RIVE R A -M U N I Z 4

m onths of im

prisonm ent and three years o f supervised release.
Rivera-Muniz challenges the 16-level e nhancem ent, arguing that California Penal Code section 192(a) i s n o t categorically a crim e of violence.

II
The relevant Sentencing Guideline provides a base level offense of 8, and a 16-level increa s e i f the defendant was previously deported after a conviction for, inter alia , a “crim e of viole n c e. ” U.S.S.G. § 2L1.2(a)–(b). 2 The definition o f

2 U.S.S.G. § 2L1.2 provides: (a) Base Offense Level: 8 (b) Specific Offense Characteristic (1) Apply the Greatest:
If the d efendant previously was d eported, or unlawfully rem ained in the United Stat e s, after— (A) a conviction for a felony t hat is

. . . (ii) a crim e of violence

. . . , increase by 1 6 levels if the conviction receives crim i nal history p oints under Chapter Four or b y 12 levels if t

he conviction does not receive crim inal history points[.]U N I T E D S TA T E S V

. RIVE R A -M U N I Z 5
“crim e of violence” includes an enum erated list of crimes, including “m anslaughter.” 3 Id. § 2L1.2 cmt. n.1(B)(iii).
“The f act that m anslaughter is specifically enum erated in the Sentencing Guidelines’ definition strongly indicates that the offense of m anslaughter qualifies as a ‘crim e of v iolence’ under § 2L1.2(b)(1 ) ( A) (ii).” United S tates v. MendozaPadilla , 833 F.3d 1156, 1 158 (9th Cir. 2016). However, “the Suprem e Co urt has directed us to look beyond the label applied to an offen s e by the state legislature and consider whether the s ub stance of the offense m atches the ‘generally accepted contem

porary m eaning of [ the] term .’” Un i ted States v. Gomez-Leon , 5 45 F .3d 777, 790 (9th Cir. 2 008) (alteration in original) (quo t ing T aylor v. United States , 495 U.S. 575, 596 (1990)). Under this anal y s is—the categorical ap p r oach—the court exam ines “only the fact o f conviction and the statutory definiti on of the prior offense.” United States v. Parnell , 818 F. 3 d 9 7 4 , 978 (9th Cir. 2 016) (citation and internal qu o tation m arks o m itted). Moreover,

3 The Application Notes to U.S.S.G. § 2L1.2 state, in relevant part:
“Crim e of violence” m eans any of the following offenses under federal, state, or local law: m urder,
m a n sl a u g h t er , k i d

n ap p i n g , ag g r av at ed a ssaul t , f o r cib l e sex offenses (including where consent to the conduct is not given or is n ot legally valid, such as where consent to the conduct is involuntary, incom petent, or coerced), statutory rape, sexual abuse of a m inor, robbery, arson, extortion, extortionate extension of credit , burglary o f
a dwelling, or any other offense under federal, state, o r local l aw that has as an elem ent t he use, attem

pted use, or threatened use of p hysical force against the person o f another. U.S.S.G. § 2L1.2 cm t. n.1(B)(iii) (em phasis added).U N I T E D S TA T E S V

. RIVE R A -M U N I Z 6
“we d o not look to the specific conduct that was the b asis o f
a defendant’s state convictions.” United States v. VelasquezReyes , 427 F.3d 1227, 1229 (9th Cir. 2005). 4
The statute at issue here, California Pen a l Code section 1 9 2(a), defi nes voluntary m anslaughter as “the unlawful killing of a hum an being without m alice

. . . upon a sudden quarrel or h eat of passion.” 5 Malice “is express when the r e i s m anifested a deliberate intention unlawfully to take away the life of a fellow creature,” and “im plied

. . . when no considerable p rovocation appears, or when the circum stances

4 If the statute of conviction crim inalizes m ore conduct than the generic, contem

p orary definition of t

he offense, we m ay use the m odified categorical approach. Gomez-Leon , 545 F.3d at 783–84. Because w e conclude that Cal i fo rnia P enal Code section 192(a) does not crim inalize
m ore conduct than the generic definition of m anslaughter, we need not u se the m odified categorical approach.

5 California Penal Code section 192 provides, in pertinent part: Manslaughter is the unlawful killing of a hum an being without m alice. It is of three kinds: (a) Voluntary-upo n a sudden quarrel or heat o f passion. (b) Involuntary-in the comm ission of an unlaw fu l act, not am ounting to a felony; or in the
comm ission of a lawful act wh ich m ight produce death, in an unlawful m anner, or w i th out d ue cau t i o n and circum spection. This subdivision shal l not apply t o a c t s comm i tted i n the driving of a vehicle. (c) Vehicular[.]U N I T E D S TA T E S V

. RIVE R A -M U N I Z 7 attending the killing show an abandoned and m ali g n ant heart.” Cal. Penal Code § 188.

III
On appeal, Rivera-Muniz contends that California Penal Code section 1 92(a) is not a categorical cr ime o f violence under U.S.S.G. § 2L1.2 for two reasons. First, Rivera-Muniz
ar g u es that, because we have h eld that a conviction und e r section 192(a) was n ot a crim e of v io l en c e un der 1 8 U.S.C. § 16, see Quijada-Aguilar v. Lynch , 799 F.3d 1303, 1306–07 (9th Ci r. 2 0 1 5 ), the d istrict court should have applied the
sam e analysis to crim es of viol e nce as defined by U.S.S.G. § 2L1.2. Second, Rivera-Muniz argues that the district court should have considered case law and jury instructions, which
make it clear that the California statute allows fo r a conviction of v o l untary m anslaughter as a lesser-included offense of m

urder whe n a d efendant acts in unreasonable o r im perfect self-defense. 6 According t o Rivera-Muniz, California’s inclu s ion of im perfect self-defense within the definition of voluntary m anslaughter m akes that o ffense broader th an th e g en eric d ef in itio n o f v o lu

ntary m an slau g hter, and, accord i ngly, not a categorical crim e of violence. W e disagree with both reasons and h old that California Penal Code section 192(a) categorically m atches the contem porary, generic definition of m anslaughter.

6 The California Suprem e Court has recognized that the term s

“ un re a s o n ab l e s e l f

- d e f e n s e ” a n d “ i mp e r f

e c t s e l f

- d e fe n s e ” a r e interchangeable. See People v. Elmore , 325 P.3d 951, 955 (Cal. 2014).U N I T E D S TA T E S V

. RIVE R A -M U N I Z 8
A Quijada-Aguilar ’s conclusion that a conviction under section 192(a) is not a crim e of violence under 18 U.S.C. § 16 d oe s n o t resolve this case. There, we held that a convicti o n under section 192(a) is not a cr im e of violence under 18 U.S.C. § 16 because California perm its a c o n v i c tion for voluntary m anslaughter with a mens rea of recklessness, while 18 U.S.C. § 16 requires “proof of an intentional use o f force or a substantial risk that f orce w ill be intentionally used during its comm ission.” Q uijada-Aguilar , 799 F.3d at 1306. Unlike 18 U.S.C. § 16(a), which d e fi nes crim es of violence
as those involving the “use, attem pted use, or threatened use of physi c a l force,” the Sentencing Guidelines provide two avenues by which a crim e can constitute a crim e of violence. First, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) e nume rates several offenses that constitute crim es of v i o l ence per se. GomezLeon , 545 F.3d at 7 88. Second, § 2L1.2 cmt. n.1(B)(iii) contains a “residu al clause” that encom passes crim es that have “as an elem ent the use, attem p ted u se, or threatened use of physical fo r c e.” T he residual clause is “m aterially the
same a s the elem ents test from 18 U.S.C. § 16(a) and is subject to the sam e construction, which m eans that it covers only conv i ct i o n s for an offense that requires proof of the intentional use of force.” Id. (footnote om itted).
W e agree that , if we were lim ited to the “use, attem pted use, or threatened u se o f p hysical f orce against the p erson o f another” language of 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 cmt

. n.1(B)(iii), Quijada-Aguilar would com pel us to conclude th a t California Penal C ode section 192(a) is not a crim e of violence. However, w e are not lim ited to this language and m

ust take into account the f a c t that
m anslaughter is an enum erated offense. See Id. at 787.U N I T E D S TA T E S V

. RIVE R A -M U N I Z 9
In Gomez-Leon , w e explained that the definition o f “crim e of violence” und e r U .S.S.G. § 2L1.2(b)(1)(A)(ii) includes an enum erated list of offens e s th at “constitute ‘crim es of violence’ per se.” 7 Id. at 7 88. Ther e fo re, if the p redi cate o f

fense is m anslaughter, “the underlying convictio n need not be for an offense that involves the intentional u se o f force.” Id. at 789. Thus, Rivera-Muniz’s ar g um ent that a conviction un der section 192(a) is not a c r i me o f violence because it perm its a conviction for vol un t ary m anslaughter with a mens rea of recklessness is only relevant if the g eneric definition of voluntary m anslaughter requires som ething
m ore than recklessness.
“When the enum erated offense is a traditional crim e, such
as m anslaughter, we derive its uniform m ean i ng from the generic, contem

porary m eaning em

ployed by m o st stat e s , guided by scholarly comm entary.” Id. at 790. Our p revious
cases and those in o th er c ircuits establish that a mens rea o f recklessness suffices to s us t ain a conviction for voluntary
m anslaughter under the generally accepted d efinition. The
m eaning of contem

porary m anslaugh t e r includes both vol un tary and involuntary form s of the offense. Id. at 791. W e have adopted the Fifth Circuit’s h olding in U nited States
v. Dominguez-Ochoa , 386 F.3d 639 (5th C ir. 2004), and
con c l u d ed that “the m odern v iew appears to be that recklessness is an elem ent” of man sl aughter. Gomez-Leon , 545 F.3d at 791; see also United States v. Kosmes , 792 F.3d

7 Gomez-Leon references an ol de r v e rsion of U.S.S.G. § 2L1.2 cm t. n.1(B)(iii) that w a s a m e n ded in 2 008. See U.S. Sentencing Guidelines Manual app. C, am end. 722, at 3 01–02 (U.S. Sentencing Comm ’n 2011). The am endm ents, however, did not elim i nate the list o f enum erated offenses, and left unchanged t he enum erated offense of m anslaughter. See id.U N I T E D S TA T E S V

. RIVE R A -M U N I Z 10
9 73 , 9 7 7 (8th Cir. 2015) (“In f inding that the Model Pe n al Code provides the best g eneric federal definition, we h o ld that ‘m anslaughter’ as enum erated in the Guidelines m eans a c rim inal hom icide that is comm itted (a) recklessl y o r (b) intentionally if comm itted under the influence of extrem e m ental o r em otional disturbance for which there i s a reasonable explanation or excuse.”); United States v. GarciaPe r ez , 779 F.3d 278, 284 (5th Cir. 2015) (“The inquiry i s s imp l e f or our purposes because we have already held th at gen eric contem

porary m anslaughter requires a m ental state o f either intent to kill or recklessness.”); 2 W ayne R

. La Fave, Substantive Criminal Law , § 15.4(a) (2d ed. 2007).
Under California law, a mens rea o f at least recklessness is required to sustain a voluntary m anslaughter c o n v i ction. See People v. Lasko , 999 P.2d 666, 672 (Cal. 2000). Thus, at least wh en it com es to the mens rea elem ent, there is a categorical m atch b etween California P enal Code section 192(a) and the generic, contem porary m eaning of the offense.

B
Rivera-Muniz’s argum ent that California Pen al Code
s ection 192(a) is broader than the generic definiti on of voluntary m anslaughter b ecause it encom passes convictions for unreasonable self-defense also fails. Ri v e ra-Muniz concedes that section 1 92(a) is v irtually identical to its federal counterpart, 18 U.S.C. § 1112(a), which reads:

M an s l aughter is the unlawful killing of a hum an being without m alice. It is of two kinds:U N I T E D S TA T E S V

. RIVE R A -M U N I Z 11 Voluntary—Upon a sudden quarrel or h eat o f passion.
Involunt ary—In the comm ission o f an unlawful act not am ounting to a felony , o r i n the comm ission in an un l awful m anner, o r without due caution and circum spection, of a lawful act which m ight produce death.
California Penal Code section 192 reads:
Ma n sl aughter is the unlawful killing of a hum an being without m alice. It is o f three kinds: (a) Voluntary-upon a sudden q uarrel or heat of passion. (b) Involuntary-in th e comm ission of an unlawful act, not am o unting to a felony; or in the comm ission of a lawful act which m ight produce death, in an un l awful m anner, o r without due caution and circum spection. . . . (c) Vehicular[.]
Because Rivera-Muniz’s conviction was under secti o n 192(a), we need only concern ourselves with the definition o f voluntary m anslaughter. 8

8 W e have previously held that a conviction under section 192(c)(3) is not a categorical crim e of v iolence. Gomez-Leon , 545 F.3d at 7 95–96.U N I T E D S TA T E S V

. RIVE R A -M U N I Z 12 Rivera-Muniz suggests that we should bypass this facial id entity b e cau se C alif

o rn ia perm its a conviction under sectio n 192(a) for unreasonable self-defense, which goes beyond “a sudden quarrel or heat of passion.” Cal. Penal Code § 192(a). Unreasonable self-defense is not explicitly stated in California Penal Code section 192(a). Rather, California case law provides that unreasonable self-defense is an alternative way of negating m alice aside from heat-of-passion killings. “Pun ishm ent is m itigated [for voluntary m anslaughter, as] the law deem s [it] less blam eworthy than m urder because of the attendant circum stances and their impact on the defendant’s
m ent a l s t a t e.” People v. Elmore , 3 25 P.3d 951, 9 5 7 (Cal. 2014). Specifically, “[t]wo factors m ay preclude th e form ation of m alice and reduce m urder to voluntary
m anslaughter: heat of passion and unreasonable selfdefe n s e.” Id. Rivera-Muniz suggests that this judicial expansion of v oluntary m anslaughter b eyond the statutory text dem onstrates tha t s ection 192(a) is not a categorical
m atch to the generic definition of m anslaughter.

Ri vera-Muniz ignores cases interp r etin g 1 8 U

. S

. C

. § 1 1 1 2 in pre c i sely the sam e m anner. See United States v. Manuel , 7 06 F .2d 908, 915 (9th Cir. 1983) (“[In] the typical c a s e of ‘im p erfect self-defense,’

. . . the defendan t intends to use deadly force in the unreasonable belief that he is in danger o f death or great bodily harm

. In this circum stance, the o ffense is classed as v o l untary m anslaughter.”); see also United States v. Quintero , 21 F.3d 885, 890 (9th Cir. 1 9 94) (“Intent without m alice, not the h e a t o f passion, is the defining characteristic of voluntary m anslaughter.”). He also ignores scholarly comm entary suggesting that the generally accepted definition of v oluntary m anslaughter includes the concept o f unreasonable self-defense. S ee 2 LaFave, supra , § 1 5

. 3(a) ( c o llecting cases and statutes m aking unreasonable self-U N I T E D S TA T E S V

. RIVE R A -M U N I Z 13
defense a variant of voluntary m anslaughter); Elizabeth D

. Lauzon, Annotation, Propriety o f Lesser-Included-Offense Charge of Voluntary Manslaughter , 3 A.L.R. 6 th 543 (originally published in 2005) (“Voluntary m anslaughter has generally been defined, under comm on law and various state statutes, as the intentional, unlawful killing of a hum an being by another hum an being as a result of an h o nest but unreasonable belief in the n eed to exercise self-defense (unreas o n able/imperfect self-defense theory) o r as the i n t e ntional, unlawful killing of a hum an being by another hum an being in a sudden heat of pas s i o n d ue to serious provocation (heat-of-passion theory).”).

In sum , Californi a Pe n al C ode section 192(a) d oes not stray fromthe generic definition of voluntary m anslaughter, which includes the concept of unreasonable self-defense.
IV
California Penal Code section 192(a) m atches the g eneric definition of “m anslaughter,” and is, therefore, categorically
a crim e of violence for purposes o f § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.
AFFIRMED.