Case: 16-41218 Document: 00514337367 Page: 1 Date Filed: 02/06/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-41218 Fifth Circuit FILED February 6, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus FREDIS ALBERTO REYES-CONTRERAS, Also Known as Alberto Contreras-Romero, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas Before JONES, SMITH, and PRADO, Circuit Judges. JERRY E. SMITH, Circuit Judge: Fredis Reyes-Contreras pleaded guilty of illegal reentry under 8 U.S.C. § 1326(a) and (b). Because he had been convicted of manslaughter in Missouri, the court applied the sixteen-level crime-of-violence (“COV”) enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reyes-Contreras appeals the enhance- ment, claiming that Missouri’s manslaughter statute is non-generic under Case: 16-41218 Document: 00514337367 Page: 2 Date Filed: 02/06/2018 No. 16-41218 Mathis. Though we find that the statute is divisible and could warrant an enhancement under the modified categorical approach, the documents of con- viction do not indicate the subsection of conviction, so as required by our caselaw we vacate and remand for resentencing. I. Reyes-Contreras was apprehended after illegally crossing from Mexico. Because he had been deported, he was charged with illegal reentry under 8 U.S.C. § 1326(a) and (b). He admitted to being a citizen of Honduras and entered a guilty plea with no plea agreement. He claims he entered illegally because a gang in Honduras threatened his life if he did not pay them money. A criminal record check revealed two Missouri convictions from 2006: one for voluntary manslaughter in the first degree and a second for armed criminal action. An immigration check showed that Reyes-Contreras had been deported in 2012. Given the above information, the presentence report (“PSR”) assigned Reyes-Contreras a base offense level of 8 under U.S.S.G. § 2L1.2(a) 1 and applied a 16-level COV enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Two levels were subtracted for acceptance of responsibility, and a third level for timely acceptance was subtracted at the sentencing hearing, leaving Reyes- Contreras at a level of 21. The PSR assigned four criminal history points, three for the Missouri convictions and one for a 2001 conviction that was later subtracted because it was more than ten years old. That yielded a Category II criminal history. The Guidelines range for the offense was 41–51 months, and the district court sentenced Reyes-Contreras to 41 months. 1 Reyes-Contreras was sentenced under the 2015 version of the Guidelines. 2 Case: 16-41218 Document: 00514337367 Page: 3 Date Filed: 02/06/2018 No. 16-41218 At issue is the sixteen-level enhancement for a COV given the Missouri conviction for voluntary manslaughter. Reyes-Contreras was seen striking the victim―his brother-in-law―on the head with a baseball bat, causing death. Reyes-Contreras contends he committed the offense in defense of his younger brother because his brother-in-law had attacked his brother with a knife. Reyes-Contreras was charged with second degree murder, a Class A felony. The indictment includes the fact that Reyes-Contreras caused the death of another by striking him with a baseball bat. ...
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