Thursday, May 15, 2008

NY 2d Degree Manslaughter Is Non-Generic, Doesn't Necessarily Constitute 16-Level COV Under U.S.S.G. §2L1.2

United States v. Bonilla, No. 06-40894 (5th Cir. Apr. 10, 2008) (Jones, Davis; Garza, dissenting)

This is the first of two posts on this case. I'm addressing the two issues resolved by the opinion separately, because they both merit their own discussion, and considering them both at the same time would make for too long a post. In Episode One, we'll look at how the court resolved a crime-of-violence issue. There's nothing new or remarkable in the court's analysis, but it's good to go through it because it so clearly illustrates some fundamentals of the Taylor/Shepard categorical approach.

Bonilla pleaded guilty to illegal reentry. He had a prior New York conviction for attempted second-degree manslaughter, which according to the probation officer triggered a 16-level crime-of-violence enhancement under guideline §2L1.2(b)(1)(A)(ii). In support, the probation officer offered two documents: 1) a copy of the criminal information charging Bonilla with actual second-degree manslaughter, rather than an attempt, and 2) a "Certificate of Disposition" identifying the statute of conviction, but not the particular subsection of the statute.

Bonilla objected to the enhancement, arguing that the state court documents failed to establish that he was convicted of an offense constituting a crime of violence because they did not identify the specific staututory subsection under which he was convicted, and at least some of the alternative ways of committing attempted second degree manslaughter don't satisfy guideline §2L1.2's 16-level COV definition.

The district court overruled Bonilla's objection, and sentenced him at the bottom of the resulting 41- to 51-month Guidelines range. Bonilla challenged that determination on appeal.

New York's second degree manslaughter statute, N.Y. Penal Law § 125.15, has three separate subsections each defining a separate way in which the offense can be committed: 1) recklessly causing another's death, 2) committing an unauthorized abortional act that causes the woman's death, or 3) intentionally causing or aiding a suicide. The court of appeals agreed with Bonilla that the two documents from his prior conviction did not pare down the statute to a particular subsection. Although the criminal information charged him with a reckless killing under subsection (1) of the statute, that document could not be used to pare down the statute because he was not convicted of that charge. Instead, Bonilla was convicted of attempted manslaughter. The COD could be used to identify N.Y. Penal Law § 125.15 as the statute of conviction (see United States v. Neri-Hernandez), but since it did not specify a particular statutory subsection, it did not pare down the statute.

Consequently, the court had to determine whether there was any conduct encompassed by N.Y. Penal Law § 125.15 that falls outside the generic definition of manslaughter. And it turns out that there is some. Both subsections (1) and (2) require a mens rea less than intent, so they fall outside the generic definition of voluntary manslaughter, which requires an intentional homicide. Involuntary manslaughter, as we know from United States v. Dominguez-Ochoa, requires a mens rea of at least recklessness, so § 125.15(1) meets that standard. But § 125.15(2)---performing an unauthorized abortional act resulting in the woman's death---does not. Under New York law, subsection (2) requires that the abortional act be taken "with intent to cause a miscarriage, but the death element is strict liability. "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."

The Government argued that there was no evidence that Bonilla had in fact been convicted under § 125.15(2). But as the court pointed out, the Government bears the burden of establishing the factual predicate necessary for the enhancement. Consequently, the lack of evidence identifying which subsection of § 125.15 formed the basis for Bonilla's conviction means the Government failed to carry its burden of proof. "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."

But as you'll see in the next post on this case, the district court's error didn't result in vacation of the sentence. Tune in next time to find out why.

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