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United States Court of Appeals for the Fifth Circuit
November 30, 2018, Filed
[*172] Fredis Reyes-Contreras pleaded guilty of illegal reentry. Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence ("COV"). Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement. Burdened by binding caselaw that required [*173] us [**2] to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing.3 The court granted the government's petition for rehearing en banc, thus vacating the panel opinion.4 Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence.
Reyes-Contreras was deported in 2012 and was apprehended in 2016 immediately upon reentry from Mexico. He admitted to being a citizen of Honduras and pleaded guilty, without a plea agreement, of being found in the United States unlawfully after having been deported, in violation of 8 U.S.C. § 1326(a) and (b) (2012).
Reyes-Contreras had two Missouri convictions in 2006: one for voluntary manslaughter in the first degree and a second for armed criminal action. The presentence report assigned a base offense level of 8 under U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2L1.2(a) (2015)5 and, deeming the voluntary manslaughter conviction to be a COV, applied a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).6
With respect to the manslaughter conviction, the indictment states that Reyes-Contreras struck the victim with a baseball bat, causing death. Although he was charged with second-degree murder, a Class A felony, Reyes-Contreras [**3] pleaded guilty of voluntary manslaughter, a Class B felony. The plea includes neither an elaboration of the facts nor the subsection of conviction. Because the Missouri manslaughter statute criminalizes generic manslaughter as well as knowingly assisting another in self-murder, Reyes-Contreras asserted that the statute is indivisible and overbroad under Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016).7
] The Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A)(ii), call for a sixteen-level enhancement for "a crime of violence." The Commentary to subsection (b)(1) contains a "[d]efinitions" segment, Application Note 1(B)(iii), which defines "[c]rime of violence" to encompass both an enumerated list of crimes, including "manslaughter," [*174] and "any other offense . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another." Our main task is to decide whether Reyes-Contreras's state conviction is for a COV under one or both of those definitions.
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910 F.3d 169 *; 2018 U.S. App. LEXIS 33640 **
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FREDIS ALBERTO REYES-CONTRERAS, Also Known as Alberto Contreras-Romero, Defendant-Appellant.
Prior History: [**1] Appeal from the United States District Court for the Southern District of Texas.
United States v. Reyes-Contreras, 882 F.3d 113, 2018 U.S. App. LEXIS 2885 (5th Cir. Tex., Feb. 6, 2018)
indictment, use of force, generic, indirect, manslaughter, sentencing, guilty plea, convicted, knowingly, enhancement, voluntary manslaughter, categorical, physical force, en banc, violent, domestic violence, district court, lesser-included, assisting, burglary, suicide, murder, use of physical force, bodily injury, violent crime, intentionally, instructions, use-of-force, decisions, realistic
Criminal Law & Procedure, Adjustments & Enhancements, Criminal History, Prior Felonies, Governments, Courts, Judicial Precedent