FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HUGO SALVADOR RIVERA-MUNIZ,

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

for the District of Arizona

Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted December 16, 2016

San Francisco, California

Filed April 20, 2017

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,

and Leslie E. Kobayashi,* District Judge.

Opinion by Judge Kobayashi

* The Honorable Leslie E. Kobayashi, Judge for the United States

District Court for the District of Hawaii, sitting by designation.
2 UNITED STATES V. RIVERA-MUNIZ

SUMMARY**

Criminal Law

Affirming a sentence, the panel held that Cal. Penal Code

§ 192(a) matches the generic definition of “manslaughter”

and is therefore categorically a crime of violence under

§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.

COUNSEL

Stephanie Bond (argued), The Law Offices of Stephanie K.

Bond P.C., Tucson, Arizona, for Defendant-Appellant.

Lauren G. LaBuff (argued), and Christina M. Cabanillas,

Assistant United States Attorneys; Robert L. Miskell,

Appellate Chief; John S. Leonardo, United States Attorney;

United States Attorney’s Office, Tucson, Arizona; for

Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. RIVERA-MUNIZ 3

OPINION

KOBAYASHI, District Judge:

This appeal questions whether a conviction for

manslaughter under California Penal Code section 192(a) is

a categorical crime of violence for purposes of

§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing

Guidelines (“U.S.S.G.” or “Sentencing Guidelines”).1 We

review the district court’s determination that Rivera-Muniz’s

prior conviction constitutes a crime of violence de novo. 

United States v. Marcia-Acosta, 780 F.3d 1244, 1248 (9th

Cir. 2015). We affirm.

I

On July 8, 2015, Rivera-Muniz pleaded guilty to

reentering the United States without authorization after

having been deported or removed in violation of 8 U.S.C.

§ 1326(a), enhanced by § 1326(b)(2). At the sentencing

hearing, the district court considered Rivera-Muniz’s

previous conviction for voluntary manslaughter under

California Penal Code section 192(a) and concluded that it

was an enumerated crime of violence that triggered a 16-level

sentencing enhancement under 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 the Sentencing Guidelines reference the 2014

Guidelines, which were in effect when Rivera-Muniz was sentenced. 

United States v. Thomsen, 830 F.3d 1049, 1071 (9th Cir. 2016). 

Amendments effective November 1, 2016, eliminated the language of

U.S.S.G. § 2L1.2 at issue in the instant appeal. U.S. Sentencing

Guidelines Manual supp. to app. C, amend. 802, at 147–49 (U.S.

Sentencing Comm’n 2016).
4 UNITED STATES V. RIVERA-MUNIZ

months of imprisonment and three years of supervised

release.

Rivera-Muniz challenges the 16-level enhancement,

arguing that California Penal Code section 192(a) is not

categorically a crime of violence.

II

The relevant Sentencing Guideline provides a base level

offense of 8, and a 16-level increase if the defendant was

previously deported after a conviction for, inter alia, a “crime

of violence.” U.S.S.G. § 2L1.2(a)–(b).2 The definition of

2

 U.S.S.G. § 2L1.2 provides:

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or

unlawfully remained in the United States,

after—

(A) a conviction for a felony that is . . . (ii) a

crime of violence . . . , increase by 16

levels if the conviction receives criminal

history points under Chapter Four or by

12 levels if the conviction does not

receive criminal history points[.]
UNITED STATES V. RIVERA-MUNIZ 5

“crime of violence” includes an enumerated list of crimes,

including “manslaughter.”3 Id. § 2L1.2 cmt. n.1(B)(iii).

“The fact that manslaughter is specifically enumerated in

the Sentencing Guidelines’ definition strongly indicates that

the offense of manslaughter qualifies as a ‘crime of violence’

under § 2L1.2(b)(1)(A)(ii).” United States v. MendozaPadilla, 833 F.3d 1156, 1158 (9th Cir. 2016). However, “the

Supreme Court has directed us to look beyond the label

applied to an offense by the state legislature and consider

whether the substance of the offense matches the ‘generally

accepted contemporary meaning of [the] term.’” United

States v. Gomez-Leon, 545 F.3d 777, 790 (9th Cir. 2008)

(alteration in original) (quoting Taylor v. United States,

495 U.S. 575, 596 (1990)). Under this analysis—the

categorical approach—the court examines “only the fact of

conviction and the statutory definition of the prior offense.” 

United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016)

(citation and internal quotation marks omitted). Moreover,

3

 The Application Notes to U.S.S.G. § 2L1.2 state, in relevant part:

“Crime of violence” means any of the following

offenses under federal, state, or local law: murder,

manslaughter, kidnapping, aggravated assault, forcible

sex offenses (including where consent to the conduct is

not given or is not legally valid, such as where consent

to the conduct is involuntary, incompetent, or coerced),

statutory rape, sexual abuse of a minor, robbery, arson,

extortion, extortionate extension of credit, burglary of

a dwelling, or any other offense under federal, state, or

local law that has as an element the use, attempted use,

or threatened use of physical force against the person of

another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).
6 UNITED STATES V. RIVERA-MUNIZ

“we do not look to the specific conduct that was the basis of

a defendant’s state convictions.” United States v. VelasquezReyes, 427 F.3d 1227, 1229 (9th Cir. 2005).4

The statute at issue here, California Penal Code

section 192(a), defines voluntary manslaughter as “the

unlawful killing of a human being without malice . . . upon a

sudden quarrel or heat of passion.”5 Malice “is express when

there is manifested a deliberate intention unlawfully to take

away the life of a fellow creature,” and “implied . . . when no

considerable provocation appears, or when the circumstances

4

If the statute of conviction criminalizes more conduct than the

generic, contemporary definition of the offense, we may use the modified

categorical approach. Gomez-Leon, 545 F.3d at 783–84. Because we

conclude that California Penal Code section 192(a) does not criminalize

more conduct than the generic definition of manslaughter, we need not use

the modified categorical approach.

5

 California Penal Code section 192 provides, in pertinent part:

Manslaughter is the unlawful killing of a human being

without malice. It is of three kinds:

(a) Voluntary-upon a sudden quarrel or heat of

passion.

(b) Involuntary-in the commission of an unlawful

act, not amounting to a felony; or in the

commission of a lawful act which might produce

death, in an unlawful manner, or without due

caution and circumspection. This subdivision shall

not apply to acts committed in the driving of a

vehicle.

(c) Vehicular[.]
UNITED STATES V. RIVERA-MUNIZ 7

attending the killing show an abandoned and malignant

heart.” Cal. Penal Code § 188.

III

On appeal, Rivera-Muniz contends that California Penal

Code section 192(a) is not a categorical crime of violence

under U.S.S.G. § 2L1.2 for two reasons. First, Rivera-Muniz

argues that, because we have held that a conviction under

section 192(a) was not a crime of violence under 18 U.S.C.

§ 16, see Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1306–07

(9th Cir. 2015), the district court should have applied the

same analysis to crimes of violence 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 for a

conviction of voluntary manslaughter as a lesser-included

offense of murder when a defendant acts in unreasonable or

imperfect self-defense.6 According to Rivera-Muniz,

California’s inclusion of imperfect self-defense within the

definition of voluntary manslaughter makes that offense

broader than the generic definition of voluntarymanslaughter,

and, accordingly, not a categorical crime of violence. We

disagree with both reasons and hold that California Penal

Code section 192(a) categorically matches the contemporary,

generic definition of manslaughter.

6 The California Supreme Court has recognized that the terms

“unreasonable self-defense” and “imperfect self-defense” are

interchangeable. See People v. Elmore, 325 P.3d 951, 955 (Cal. 2014).
8 UNITED STATES V. RIVERA-MUNIZ

A

Quijada-Aguilar’s conclusion that a conviction under

section 192(a) is not a crime of violence under 18 U.S.C. § 16

does not resolve this case. There, we held that a conviction

under section 192(a) is not a crime of violence under

18 U.S.C. § 16 because California permits a conviction for

voluntary manslaughter with a mens rea of recklessness,

while 18 U.S.C. § 16 requires “proof of an intentional use of

force or a substantial risk that force will be intentionally used

during its commission.” Quijada-Aguilar, 799 F.3d at 1306. 

Unlike 18 U.S.C. § 16(a), which defines crimes of violence

as those involving the “use, attempted use, or threatened use

of physical force,” the Sentencing Guidelines provide two

avenues by which a crime can constitute a crime of violence. 

First, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) enumerates several

offenses that constitute crimes of violence per se. GomezLeon, 545 F.3d at 788. Second, § 2L1.2 cmt. n.1(B)(iii)

contains a “residual clause” that encompasses crimes that

have “as an element the use, attempted use, or threatened use

of physical force.” The residual clause is “materially the

same as the elements test from 18 U.S.C. § 16(a) and is

subject to the same construction, which means that it covers

only convictions for an offense that requires proof of the

intentional use of force.” Id. (footnote omitted).

We agree that, if we were limited to the “use, attempted

use, or threatened use of physical force against the person of

another” language of 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2

cmt. n.1(B)(iii), Quijada-Aguilar would compel us to

conclude that California Penal Code section 192(a) is not a

crime of violence. However, we are not limited to this

language and must take into account the fact that

manslaughter is an enumerated offense. See Id. at 787.
UNITED STATES V. RIVERA-MUNIZ 9

In Gomez-Leon, we explained that the definition of

“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

includes an enumerated list of offenses that “constitute

‘crimes of violence’ per se.”7Id. at 788. Therefore, if the

predicate offense is manslaughter, “the underlying conviction

need not be for an offense that involves the intentional use of

force.” Id. at 789. Thus, Rivera-Muniz’s argument that a

conviction under section 192(a) is not a crime of violence

because it permits a conviction for voluntary manslaughter

with a mens rea of recklessness is only relevant if the generic

definition of voluntary manslaughter requires something

more than recklessness.

“When the enumerated offense is a traditional crime, such

as manslaughter, we derive its uniform meaning from the

generic, contemporary meaning employed by most states,

guided by scholarly commentary.” Id. at 790. Our previous

cases and those in other circuits establish that a mens rea of

recklessness suffices to sustain a conviction for voluntary

manslaughter under the generally accepted definition. The

meaning of contemporary manslaughter includes both

voluntary and involuntary forms of the offense. Id. at 791. 

We have adopted the Fifth Circuit’s holding in United States

v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004), and

concluded that “the modern view appears to be that

recklessness is an element” of manslaughter. Gomez-Leon,

545 F.3d at 791; see also United States v. Kosmes, 792 F.3d

7 Gomez-Leon references an older version of U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii) that was amended in 2008. See U.S. Sentencing Guidelines

Manual app. C, amend. 722, at 301–02 (U.S. Sentencing Comm’n 2011). 

The amendments, however, did not eliminate the list of enumerated

offenses, and left unchanged the enumerated offense of manslaughter. See

id.
10 UNITED STATES V. RIVERA-MUNIZ

973, 977 (8th Cir. 2015) (“In finding that the Model Penal

Code provides the best generic federal definition, we hold

that ‘manslaughter’ as enumerated in the Guidelines means a

criminal homicide that is committed (a) recklessly or

(b) intentionally if committed under the influence of extreme

mental or emotional disturbance for which there is a

reasonable explanation or excuse.”); United States v. GarciaPerez, 779 F.3d 278, 284 (5th Cir. 2015) (“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.”); 2 Wayne R. LaFave,

Substantive Criminal Law, § 15.4(a) (2d ed. 2007).

Under California law, a mens rea of at least recklessness

is required to sustain a voluntary manslaughter conviction. 

See People v. Lasko, 999 P.2d 666, 672 (Cal. 2000). Thus, at

least when it comes to the mens rea element, there is a

categorical match between California Penal Code section

192(a) and the generic, contemporary meaning of the offense.

B

Rivera-Muniz’s argument that California Penal Code

section 192(a) is broader than the generic definition of

voluntary manslaughter because it encompasses convictions

for unreasonable self-defense also fails. Rivera-Muniz

concedes that section 192(a) is virtually identical to its federal

counterpart, 18 U.S.C. § 1112(a), which reads:

Manslaughter is the unlawful killing of a

human being without malice. It is of two

kinds:
UNITED STATES V. RIVERA-MUNIZ 11

Voluntary—Upon a sudden quarrel or heat of

passion.

Involuntary—In the commission of an

unlawful act not amounting to a felony, or in

the commission in an unlawful manner, or

without due caution and circumspection, of a

lawful act which might produce death.

California Penal Code section 192 reads:

Manslaughter is the unlawful killing of a

human being without malice. It is of three

kinds:

(a) Voluntary-upon a sudden quarrel or heat

of passion.

(b) Involuntary-in the commission of an

unlawful act, not amounting to a felony; or in

the commission of a lawful act which might

produce death, in an unlawful manner, or

without due caution and circumspection. . . .

(c) Vehicular[.]

Because Rivera-Muniz’s conviction was under section

192(a), we need only concern ourselves with the definition of

voluntary manslaughter.8

8

 We have previously held that a conviction under section 192(c)(3)

is not a categorical crime of violence. Gomez-Leon, 545 F.3d at 795–96.
12 UNITED STATES V. RIVERA-MUNIZ

Rivera-Muniz suggests that we should bypass this facial

identity because California permits a conviction under section

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 malice aside from heat-of-passion killings. 

“Punishment is mitigated [for voluntary manslaughter, as] the

law deems [it] less blameworthy than murder because of the

attendant circumstances and their impact on the defendant’s

mental state.” People v. Elmore, 325 P.3d 951, 957 (Cal.

2014). Specifically, “[t]wo factors may preclude the

formation of malice and reduce murder to voluntary

manslaughter: heat of passion and unreasonable selfdefense.” Id. Rivera-Muniz suggests that this judicial

expansion of voluntary manslaughter beyond the statutory

text demonstrates that section 192(a) is not a categorical

match to the generic definition of manslaughter.

Rivera-Muniz ignores cases interpreting 18U.S.C. § 1112

in precisely the same manner. See United States v. Manuel,

706 F.2d 908, 915 (9th Cir. 1983) (“[In] the typical case of

‘imperfect self-defense,’ . . . the defendant intends to use

deadly force in the unreasonable belief that he is in danger of

death or great bodily harm. In this circumstance, the offense

is classed as voluntary manslaughter.”); see also United

States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994) (“Intent

without malice, not the heat of passion, is the defining

characteristic of voluntary manslaughter.”). He also ignores

scholarly commentary suggesting that the generally accepted

definition of voluntary manslaughter includes the concept of

unreasonable self-defense. See 2 LaFave, supra, § 15.3(a)

(collecting cases and statutes making unreasonable self-
UNITED STATES V. RIVERA-MUNIZ 13

defense a variant of voluntary manslaughter); Elizabeth D.

Lauzon, Annotation, Propriety of Lesser-Included-Offense

Charge of Voluntary Manslaughter, 3 A.L.R. 6th 543

(originally published in 2005) (“Voluntary manslaughter has

generally been defined, under common law and various state

statutes, as the intentional, unlawful killing of a human being

by another human being as a result of an honest but

unreasonable belief in the need to exercise self-defense

(unreasonable/imperfect self-defense theory) or as the

intentional, unlawful killing of a human being by another

human being in a sudden heat of passion due to serious

provocation (heat-of-passion theory).”).

In sum, California Penal Code section 192(a) does not

stray from the generic definition of voluntary manslaughter,

which includes the concept of unreasonable self-defense.

IV

California Penal Code section 192(a) matches the generic

definition of “manslaughter,” and is, therefore, categorically

a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the

Sentencing Guidelines.

AFFIRMED.