Thursday, March 12, 2015

Florida Manslaughter Not § 2L1.2 COV Because Requires Less than Recklessness as to Death

The Fifth Circuit reminds us again that the name of a state conviction is not dispositive as to whether it is a crime of violence (COV).  In this case, Garcia-Perez was convicted of illegal reentry, and the district court assessed a 16-level enhancement for his conviction of manslaughter in Florida. 

Florida manslaughter, at the time of the offense, encompassed the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification….”  Fla. Stat. § 782.07(1) (1995).  Proof of manslaughter does not require proof of force, so the conviction does not meet the § 2L1.2 COV elements program.

“Manslaughter” is one of the enumerated § 2L1.2 COV offenses, however.  The generic definition of manslaughter requires a mental state of either intent to kill or recklessness, a “conscious disregard of perceived homicidal risk.”  United States v. Bonilla, 524 F.3d 647, 654 (5th Cir. 2008).  The panel reviewed Florida case law and determined that Florida manslaughter does not require intent to kill and that a long line of cases held that “unexpected deaths caused by intended acts can be enough to prove manslaughter.”  Indeed, the fact that a defendant could not have reasonably believed that death was a probable result of an intentional act does not defeat a manslaughter conviction in Florida. 

Because Florida manslaughter is not limited to acts committed with conscious disregard of a perceived risk of death, it is broader than the definition of generic contemporary manslaughter.  The district court erred by enhancing Garcia-Perez’s offense level, and the error was not harmless.  The panel vacates the sentence and remands for resentencing.

The updated § 2L1.2 Crime of Violence list is available on

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