FILED
NOT FOR PUBLICATION MAR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10048
Plaintiff - Appellee, D.C. No. 4:13-cr-00874-JGZ-
DTF-1
v.
EDUARDO MENDOZA-LARES, AKA MEMORANDUM*
Juan Cortez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted March 12, 2015**
San Francisco, California
Before: BERZON, BYBEE, and OWENS, Circuit Judges.
Appellant Eduardo Mendoza-Lares, aka Juan Cortez, pleaded guilty to a
charge of unlawful presence after having been previously deported, a violation of 8
U.S.C. § 1326(a) as enhanced by § 1326(b)(2). He appeals the imposition of a 16-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
level sentence enhancement under section 2L1.2(b)(1)(A)(ii) of the Federal
Sentencing Guidelines (“Guidelines”) on the grounds that the district court erred in
classifying his previous Arizona manslaughter conviction as a crime of violence.
1. The district court did not err in concluding that Mendoza-Lares’s Arizona
manslaughter conviction is a crime of violence for purposes of Guidelines section
2L1.2(b)(1)(A)(ii). Manslaughter is one of several enumerated offenses the
Guidelines specifically identify as a crime of violence. U.S. Sentencing Guidelines
Manual § 2L1.2 app. 1(B)(iii) (2014). The generic definition of manslaughter
incorporates, at most, a mens rea of recklessness. See United States v. Gomez-
Leon, 545 F.3d 777, 791 (9th Cir. 2008).
The Arizona statute under which Mendoza-Lares was convicted defines
manslaughter as, in relevant part, “(1) [r]ecklessly causing the death of another
person; or (2) [c]ommitting second degree murder as prescribed in § 13-1104,
subsection A upon a sudden quarrel or heat of passion resulting from adequate
provocation by the victim.” Ariz. Rev. Stat. § 13-1103(A). To convict a defendant
of manslaughter under section 13-1103(A)(2) for second-degree murder “upon a
sudden quarrel or heat of passion,” the state must prove all “the mandatory
elements of second-degree murder” in addition to a mitigating circumstance of a
sudden quarrel or heat of passion. State v. Ruiz, 340 P.3d 396, 400 (Ariz. Ct. App.
2
2014) (citing Peak v. Acuna, 50 P.3d 833, 834 (Ariz. 2002) (en banc)). The
minimum qualifying mens rea under Arizona’s second degree murder statute is
recklessness “[u]nder circumstances manifesting extreme indifference to human
life,” Ariz. Rev. Stat. § 13-1104(A)(3), a “more culpable mental state” than the
mens rea required by section 13-1103(A)(1).1 State v. Walton, 650 P.2d 1264,
1273 (Ariz. Ct. App. 1982). Thus, the Arizona manslaughter statute, in relevant
part, requires at least a mens rea of recklessness and is categorically a crime of
violence under Guidelines section 2L1.2(b)(1)(A)(ii).
AFFIRMED.
1
Arizona’s definition of recklessness “means, with respect to a result or to a
circumstance described by a statute defining an offense, that a person is aware of
and consciously disregards a substantial and unjustifiable risk that the result will
occur or that the circumstance exists,” where “disregard of such risk constitutes a
gross deviation from the standard of conduct that a reasonable person would
observe in the situation.” Ariz. Rev. Stat. § 13-105(10)(c). That definition
comports with the generic recklessness standard requiring “conduct that involves
both (1) ‘a high degree of risk of death or serious bodily injury, in addition to the
unreasonable risk required for ordinary negligence’ or a gross deviation from the
ordinary standard of care and (2) that the defendant be ‘aware of the fact that his
conduct creates this risk.’’’ Gomez-Leon, 545 F.3d at 791 n.11 (quoting 2 Wayne
R. LaFave, Substantive Criminal Law § 15.4(a) (2d ed. 2007)).
3