United States v. Bonilla

Carlos Constantino Bonilla (“Bonilla”) pleaded guilty to being unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326. The district court sentenced Bonilla to serve forty-one months in prison, followed by a three-year term of supervised release. Bonilla contends that the district court erred in adjusting his base offense level upward based upon his prior conviction for attempted manslaughter under New York Penal Law § 125.15. Bonilla also challenges the presumption of reasonableness that attaches to a sentence within a properly calculated guidelines range; and he challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors. These latter two arguments are foreclosed by Supreme Court precedent.1 Although the district court erred in applying the crime of violence enhancement, because it imposed a reasonable alternative non-guideline sentence, we affirm.

I

Bonilla pleaded guilty to his § 1326 offense of illegal reentry without the benefit of a plea agreement. The presentence investigation report (“PSR”) calculated a base offense level of eight pursuant to U.S. SENTENCING GüIDELINES MANUAL (“USSG”) § 2L1.2(a) (2005). The PSR recommended adding sixteen levels under USSG § 2L1.2(b)(l)(A)(ii) because Bonilla’s New York conviction for attempted manslaughter qualified as a “crime of violence.” The PSR then recommended subtracting three levels for acceptance of responsibility under USSG § 3El.l(a) and (b). A total offense level of twenty-one, coupled with Bonilla’s criminal history category of II, resulted in a recommended imprisonment range of forty-one to fifty-one months.

Bonilla lodged objections to the PSR. First, Bonilla objected to the sixteen-level enhancement on the ground that the government had not carried its burden of showing that his prior conviction for attempted manslaughter qualified as a crime of violence under § 2L1.2(b)(l)(A)(ii). The PSR reveals that the crime occurred while the defendant was homeless, and he became embroiled in a fight over mattress space; he struck the victim over the head with a cinder block causing his death. Bonilla’s attempted manslaughter conviction arose from his 1998 violation of § 125.15. Section 125.15 provides that:

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

2. He commits upon a female an abortional act which causes her death, *651unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or2

3. He intentionally causes or aids another person to commit suicide.

N.Y. Penal Law § 125.15 (McKinney 2008). As proof of the conviction, the probation officer submitted the New York criminal information that originally charged Bonilla with committing second-degree manslaughter. There is no evidence that Bonilla was reindicted for the attempt charge. The probation officer also submitted the Certificate of Disposition (“COD”), which is a state record of the defendant’s offense of conviction. The criminal information charged Bonilla with manslaughter in the second degree based on a violation of Section 125.15(1). However, the COD noted only that Bonilla pleaded guilty to attempted manslaughter in the second degree under § 125.15 without identifying the subsection under which Bonilla pleaded guilty. Bonilla contended that the COD did not establish the subdivision he violated and that the criminal information could not be used to establish that fact, as it did not charge the attempt crime to which Bonilla eventually pleaded. Because no particular subdivision could be identified, Bonilla argued that § 125.15 must be analyzed as a whole to determine whether it fits within the guidelines’ definition as a crime of violence. He claimed that when analyzed as such, the statute did not fit within the generic, contemporary definition of manslaughter.

Bonilla raised further objections to the PSR that mirror his remaining arguments on appeal.3 At sentencing, Bonilla reurged these objections but the district court overruled them. The district court found that Bonilla’s violation of Section 125.15 qualified under the guidelines as an enumerated offense of manslaughter, and thus as a crime of violence. The court sentenced Bonilla to a non-guideline sentence of forty-one months in prison, followed by a three-year term of supervised release, and a $100 mandatory assessment. Bonilla timely filed a notice of appeal.

II

Bonilla’s first objection is that the district court erred in applying the crime of violence enhancement to determine his guideline sentence. Determining whether a prior offense qualifies as a crime of violence requires interpretation and application of the sentencing guidelines. We review a district court’s interpretation and application of the guidelines de novo. See United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.2004) (en banc) (review*652ing de novo a district court’s application of USSG § 2L1.2).

The application notes of USSG § 2L1.2 define a “crime of violence” in two different ways. A crime of violence either “(1) has the use, attempted use, or threatened use of physical force against the person of another as an element of the offense, or (2) it qualifies as one of several specifically enumerated offenses [including manslaughter].” United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir.2006) (citing USSG § 2L1.2 cmt. n. l(B)(iii)). Attempts can trigger a crime of violence enhancement. See USSG § 2L1.2 cmt. n. 5 (stating that “[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses”). In this case, the government argues only that Bonilla’s offense under § 125.15 qualifies as the enumerated offense of “manslaughter.” See USSG § 2L1.2 cmt. n. l(B)(iii) (stating that “[c]rime of violence means any of the following ... manslaughter”). The parties dispute how specifically we can define the offense committed by Bonilla, as well as the documents we may use to make such a determination.

A

The New York law at issue here provides three separate subsections, each of which independently constitutes manslaughter in the second degree. To determine which subpart formed the basis of Bonilla’s conviction, we may examine, “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” See United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir.2007) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

Bonilla argues that the district court erred by relying on the COD and the original criminal information charging him with second degree manslaughter to establish that his prior conviction amounted to a crime of violence. Bonilla contends that the district court could not use either document to “pare down” the statute in order to establish the subsection to which Bonilla pleaded guilty. Finally, he argues that Section 125.15, when taken as a whole, does not fit the guidelines definition of manslaughter, and therefore that his crime of violence enhancement was improper. The Government responds by arguing that the district court properly relied on the criminal information as well as the COD. These two documents, contends the Government, show that Bonilla’s prior conviction qualifies as the enumerated offense of manslaughter.

Recent panel decisions of this court confirm Bonilla’s position as to the criminal information. Because the criminal information charges a crime of which Bonilla was not convicted, it cannot be used to “pare down the statute of conviction to determine under which subsection [Bonil-la] pleaded guilty.” United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir.2007); see United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir.2007) (reaching same conclusion when defendant pleaded guilty to attempted kidnapping but indictment charged only aggravated kidnapping); see also United States v. Turner, 349 F.3d 833, 836 (5th Cir.2003) (holding that, in the context of USSG § 4B1.2, “a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted”). Therefore, the district court could not consider the criminal information to establish that Bonilla’s offense qualified as *653a crime of violence.4

As to the COD, we have recognized that New York Certificates of Disposition have “sufficient indicia of reliability” such that they can be used to establish the existence of a prior conviction. See Neri-Hernandes, 504 F.3d at 591-92 (distinguishing between establishing facts underlying prior conviction and existence of pri- or conviction). In Neri-Hernandes, the defendant argued that a COD did not provide sufficient evidence to establish a prior conviction for a crime of violence. We disagreed and noted that the Certificate in Neri-Hernandes’ ease “details [his] guilty plea and sentence, and it specifies a subsection of the statute under which Neri was convicted.” Id. at 591 (emphasis added). Because the COD established the subsection of conviction, the court was able to find that Neri-Hernandes committed a crime of violence. Id. Bonilla’s COD does not provide the same specificity to aid us or the district court. The COD states only that Bonilla pleaded guilty to attempted manslaughter in the second degree under § 125.15. It establishes the fact, of Bonil-la’s conviction under the statute, but it does not provide the specific subsection under which he was convicted.

B

Because the criminal information may not be considered, and the COD provides no aid as to which subsection Bonilla violated, we consider § 125.15 as a whole to determine whether Bonilla’s conviction qualifies as a crime of violence under the guidelines enumerated offense of manslaughter. We determine the meaning of the guidelines’ reference to manslaughter by using a “common sense approach” and looking to the “ordinary, contemporary, [and] common meaning” of the term. Murillo-Lopez, 444 F.3d at 339 (internal quotation marks and citation omitted). “To distill the plain, ordinary meaning, this court looks to sources such as the Model Penal Code, Professor LaFave’s treatise and legal dictionaries.” Mungia-Portillo, 484 F.3d at 816. “When the statute of conviction encompasses prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the conviction is not a crime of violence as a matter of law.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir.2006) (internal citation and quotation marks omitted).

As noted above, § 125.15 provides three different subsections, the violation of each defined as second degree manslaughter under New York law. The first defines second-degree manslaughter as, “recklessly caus[ing] the death of another person.” The second notes that if one commits certain abortional acts that cause a female’s death, then that person may be prosecuted for manslaughter in the second degree. The third subsection provides for a second-degree manslaughter charge against anyone who “intentionally causes or aids another person to commit suicide.” The *654question before us then, is whether the New York statute encompasses behavior beyond that included in the plain, ordinary meaning of manslaughter.

Traditionally, manslaughter has been divided into two categories: voluntary and involuntary manslaughter. This is still the norm in most American jurisdictions. 2 Wayne R. LaFave, SubstaNtive CRIMINAL Law § 15.1 490 (2d ed.2003). “Voluntary manslaughter in most jurisdictions consists of an intentional homicide committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing.” Id. at § 15.2 491. (emphasis added). The Model Penal Code includes a similar definition. See Model Penal Code § 210.3(l)(b) (defining manslaughter as, inter alia, “a homicide which would otherwise be murder” but “is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse”). At least subsections (1) and (2) of 125.15 encompass criminal acts involving a less culpable mens rea than intentional homicide and, therefore, criminalize conduct broader than the plain and ordinary definition of voluntary manslaughter.5 Therefore, we turn our focus to involuntary manslaughter to determine whether New York’s statute is at least as narrow as the generic, contemporary version of that offense. See United States v. Dominguez-Ochoa, 386 F.3d 639, 642 (5th Cir.2004) (noting that Texas’ criminal negligent homicide statute must be analyzed in relation to involuntary manslaughter because voluntary manslaughter requires a “different level of intent”).

As to involuntary manslaughter, the Model Penal Code provides that, “[cjrimi-nal homicide constitutes manslaughter when ... it is committed recklessly.” Model Penal Code § 210.3(l)(a).6 The Model Penal Code’s recklessness standard requires “proof of conscious disregard of perceived homicidal risk.” Dominguez-Ochoa, 386 F.3d at 645 (quoting Model Penal Code § 210.3 cmt. 4 at 53). We have recognized that the recklessness standard adopted in the Model Penal Code provides the minimal necessary mens rea for “generic contemporary manslaughter (including involuntary manslaughter).” Id. at 646; see also LaFave, supra, at § 15.4(a) 523 (noting that most of the comprehensive criminal codes follow the Model Penal Code on this matter). Therefore, § 125.15 will be broader than the plain ordinary definition of manslaughter — and thus not a crime of violence under the guidelines — if one of its subsections requires less than a reckless state of mind.

Section 125.15(1) encompasses all of the conduct contemplated by the Model Penal Code’s reference to manslaughter as reckless homicide. Specifically, it provides that “a person is guilty of manslaughter in the second degree if ... he recklessly causes the death of another person.” N.Y. Penal Law § 125.05(1) (McKinney 2008). The inclusion of subsections (2) and (3) *655indicates that the statute was intended to criminalize a broader swath of conduct than just recklessly caused deaths. Further, subsection (2) indicates that it can be violated by unjustified abortional acts that result in the death of a female. To constitute an “abortional act,” the act must be taken “with intent to cause a miscarriage.” N.Y. Penal Law § 125.05(2) (McKinney 2008). However, the statute says nothing in terms of the defendant’s mental state towards the risk of death created by his behavior. New York law provides that “if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of strict liability.” N.Y. Penal Law § 15.10 (McKinney 2008). This suggests that if an act intended to cause a miscarriage results in a female’s death, a defendant could be prosecuted under subsection (2) irrespective of the defendant’s mental state towards the risk of death posed by his behavior. Therefore, subsection (2) makes § 125.15 broader than the generic, contemporary meaning of involuntary manslaughter. See Dominguez-Ochoa, 386 F.3d at 646 (finding that the lower mens rea requirement of Texas’ criminal negligence statute prevented it from falling within the generic, contemporary definition of involuntary manslaughter which requires at least recklessness).

The government argues that there is no possibility that Bonilla was convicted under subsection (2) because nothing in the record indicates that he committed an abortional act on a female victim. This argument, however, misses the broader point that there is no evidence indicating which of the three subsections applies. Further, the government bears the burden of establishing a factual predicate justifying the adjustment, here that Bonilla’s offense constitutes a crime of violence. See United States v. Rabanal, 508 F.3d 741, 743 (5th Cir.2007) (“The general rule is that the party seeking an adjustment in the sentence level must establish the factual predicate justifying the adjustment.” (internal quotation marks omitted)). Had the government produced useable evidence indicating that Bonilla was convicted under subsection (1), then his conviction certainly would qualify under the contemporary, generic definition of involuntary manslaughter. However, the government cannot rely on a lack of evidence to foreclose the possibility that Bonilla’s conviction fell under another subsection.

For the foregoing reasons, we find that New York Penal Law § 125.15 criminalizes a broader range of conduct than that encompassed by the generic, contemporary offense of manslaughter. Subsections (2) and (3) encompass a broader scope of criminal behavior than the generic offense of voluntary manslaughter, as they cannot be said to require an intentional homicide. And subsection (2) can be violated without the recklessness towards a homicidal risk required under the generic, contemporary version of involuntary manslaughter. Therefore, the district court erred in applying the sixteen-level crime of violence enhancement when calculating Bonilla’s sentence. See Fierro-Reyna, 466 F.3d at 329 (5th Cir.2006).

Ill

Bonilla argues that as a result of the district court’s error in applying the sixteen-level crime of violence enhancement, this court should vacate Bonilla’s sentence and remand for resentencing. For the following reasons, we disagree.

The Supreme Court recently reaffirmed that prior to reviewing a sentence under the abuse-of-discretion standard, we:

*656must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including a deviation from the Guidelines range.

Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). This presents no change to the law. United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir.2006) (noting that before the district court imposes a non-Guideline sentence it must first properly calculate the applicable Guideline range); United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006) (holding that when a district court imposes a non-guidelines sentence, it should provide “fact-specific” reasons “consistent with the sentencing factors enumerated in section 3553(a)”).

Not all errors in determining a defendant’s guideline sentence require reversal.

If the district court makes an error in an application of the Guidelines, we vacate the resulting sentence without reaching the sentence’s ultimate reasonableness. United States v. Duhon, 440 F.3d 711, 716 (5th Cir.2006), (citing United States v. Villegas, 404 F.3d 355, 362 (5th Cir.2005)).... If, however, the district court imposes a non-Guideline sentence and that advisory sentence did not directly “result” from any Guideline error, it need not be vacated. Duhon, 440 F.3d at 716.

Tzep-Mejia, 461 F.3d at 526. In Tzep-Mejia, we held that the district court properly exercised its discretion in imposing a non-guideline sentence. The district court considered the possible guideline ranges that might apply to the defendant with and without a disputed enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A). After rejecting both ranges as alternatively too high and too low, the district court properly applied the individualized, case-specific factors as required by § 3553(a) and sentenced the defendant to a prison term between the two. Accordingly, Tzep-Mejia’s sentence did not “result” from an incorrect application of the guidelines.

We find that the district court followed a similar process in this case and the resulting non-guideline sentence did not result from the district court’s error in applying the crime of violence enhancement. The only aspect of Bonilla’s guideline calculation that was in dispute was the crime of violence enhancement discussed previously. Neither party disagrees with the district court’s guideline calculation before the enhancement. The district court erroneously concluded that the enhancement should apply to the defendant. However, like the district court in Tzep-Mejia, the court in this case imposed an alternative non-guideline sentence stating, “I believe that I have calculated the guidelines correctly, but even if I am wrong about the guidelines, this is the sentence that I would impose in any event.” Although the district court did not comment on the guideline ranges that would apply with and without the enhancement, the record reflects no disagreement between the parties or confusion by the district court about the guidelines range before and after the enhancement. The defendant argued in his objections to the PSR that without the enhancement “he should be scored at Level 6, at a Category I, with a sentencing range of 0-6 months, at Zone A.” At sentencing the district court specifically referenced his consideration of the parties’ arguments made at sentencing and in the *657reports before exercising its discretion to impose a sentence of 41 months. As in Tzep-Mejia, Bonilla’s sentence did not result from an incorrect application of the guidelines.

Bonilla argues that the district court committed an additional procedural error by failing to adequately explain the chosen sentence. Gall, 128 S.Ct. at 597. There is some dispute as to whether plain error review should apply to this issue because Bonilla did not object to the adequacy of the district court’s reasons at sentencing. We need not decide the appropriate level of review, because as explained below, the district court’s reasons were sufficient under any standard.

Prior to Rita, this court held that if a district court imposes a sentence within the properly determined Guidelines range, little explanation is required. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In Rita, the Court indicated that more than a brief statement may be required when a district court is presented with nonfrivolous arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines sentence in that case were, although brief, legally sufficient. Id. at 2469. Specifically, the Court noted that the record made clear that the judge listened to and considered the arguments and evidence but simply found the circumstances insufficient to warrant a sentence below the Guidelines range. Id. The judge said that the range was not “inappropriate” and that a sentence at the bottom of the range was “appropriate.” Id. The Court acknowledged that the judge might have said more, but was not required to do so. Id.

Error does not necessarily result when the district court’s reasons, as in this case, are not clearly listed for our review. As stated in Rita,

The statute does call for the judge to “state” his “reasons.” And that requirement reflects sound judicial practice. Judicial decisions are reasoned decisions. Confidence in a judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.

That said, we cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word “granted,” or “denied” on the face of a motion while relying upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment

Id. (underlining added.) In this case, examining the district court’s statement at sentencing in the context of the full sentencing hearing confirms that the court’s reasons for the non-guideline sentence it imposed were minimally sufficient.

Immediately before imposing sentence, the district court made the following statement:

Okay. Mr. Bonilla, the court has considered the arguments made earlier and as well as the information in the report. And keeping in mind the factors that the court has to consider in imposing a sentence, the court is going to impose a sentence that it believes to be reasonable. And the sentence that the court imposes is one that the court believes to *658be reasonable. And that is true whether or not the court turns out to be wrong about the enhancement.

Because of the district court’s reference to “arguments made earlier” and “information in the report” we must look at the entire sentencing record to determine if those sources provide adequate information about the “factors that the court” considered in imposing sentence to determine whether the district court’s reasons were adequate.

The “arguments made earlier” in the sentencing hearing include the government’s argument that the court consider under its discretionary powers the type of crime the defendant committed that resulted in the conviction for attempted manslaughter. The government pointed out that the victim died as a result of what the defendant did — “And the victim was killed with a brick, Your Honor.” The arguments also included the defendant’s arguments for a non-guideline sentence on the basis of the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). The defense argued that Bonilla was sixty years old, was in this country for several years with no confrontations with the law, and has several children living in the United States. Bonilla concluded by asking the court to impose a sentence “that is reasonable and that is fair.” The government asked for a sentence in the low end of the guideline range, including the enhancement as the appropriate punishment given the defendant’s past history and personal characteristics. The government noted the defendant’s sporadic work and employment history, his problems with alcohol and homelessness. He also noted that the defendant had several arrests related to alcoholism and homelessness that were not prosecuted, a reference to the defendant’s criminal history that the court could take into account when determining the appropriate sentence within the advisory guideline range.

The “reports” referenced by the district court contained an argument by the defendant for a sentence that is sufficient but not greater than necessary based on his arguments under § 3553(a) in Defendant’s Objections to Presentence Report. The objections noted that the defendant entered the country to seek work and visit his children, not to commit further crimes. The “reports” also include the probation office’s recommendation for a sentence of 41 months.

The district court’s reference to these arguments before imposing a non-guideline sentence of 41 months provide the background to clarify the “factors” considered by the district court in determining the chosen sentence and provide adequate reasons for that decision. Clearly the factors the court considered were those argued at sentencing and in previously filed reports — the nature of the circumstances of the offense and the defendant’s history and characteristics, including his unprose-cuted criminal history. 18 U.S.C. § 3553(a)(1). After considering these factors, the district court concluded that a sentence of 41 months was reasonable. “The sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case,” Gall, 128 S.Ct. at 597. Examining the full sentencing record reveals the district court’s reasons for the chosen sentence and allows for effective review by this court. Our task would have been easier had the district court stated its reasons explicitly on the record, a procedure we strongly recommend. A clear statement of reasons on the record also serves to prevent the inefficiency that would result from remand and resentencing if on appeal we had been unable to determine the court’s reasons from the record. In *659this case however, our review makes clear both the reasons for the sentence and their adequacy as a matter of law.

IV

The district court erred in applying a sixteen-level crime-of-violence enhancement based on Bonilla’s conviction for attempted manslaughter under New York Penal Law § 125.15. However, because the district court imposed an alternative non-guideline sentence, the advisory sentence did not result from the guideline error and we need not vacate the sentence on that basis. Based on our examination of the sentencing record, the district court’s reasons for the sentence under the § 3553(a) factors are adequate. Accordingly, we AFFIRM Bonilla’s sentence.

AFFIRMED.