Submitted: September 18, 2017
from United States District Court for the Western District of
Arkansas - Fayetteville
COLLOTON, BENTON, and KELLY, Circuit Judges.
Steward pleaded guilty to sex trafficking of a child in
violation of 18 U.S.C. § 1591. At sentencing, Steward
objected to various aspects of the presentence report. The
district court sustained some objections, but overruled
Steward's objection to the categorization of his prior
conviction for Oklahoma voluntary manslaughter, see
Okla. Stat. tit. 21, § 711(2),  as a crime of violence.
Using the United States Sentencing Guidelines (USSG) in
effect at the time of sentencing, the district court found
Steward qualified as a career offender under USSG §
4B1.1. The advisory Guidelines range was 151-188 months, and
the district court sentenced Steward to 151 months of
imprisonment. Steward appeals, arguing that his prior
voluntary manslaughter conviction is not a crime of violence.
review de novo a district court's interpretation and
application of the guidelines." United States v.
Rice, 813 F.3d 704, 705 (8th Cir. 2016). Generally,
district courts should apply the Guidelines "that are
'in effect on the date the defendant is
sentenced.'" Peugh v. United States, 569
U.S. 530, 537-38 (2013) (quoting 18 U.S.C. §
3553(a)(4)(A)(ii)). However, when the Guidelines have been
amended since the offense occurred such that application of
the new Guidelines results in a higher sentencing range, the
court should apply the Guidelines in effect at the time of
the offense, so as not to violate the Ex Post Facto
Clause. Id. at 538. Here, the definition of crime of
violence in USSG § 4B1.2 was amended between the time
Steward committed his offense and the time of his sentencing.
As a result, we must examine both the 2015 and 2016 versions
of the Guidelines. If Steward's prior offense would
qualify as a crime of violence under both versions, there can
be no Ex Post Facto Clause violation and we must
2015, the definition of crime of violence in the Guidelines
included the same "residual clause" as did the
definition of violent felony in the Armed Career Criminal Act
(ACCA): "an offense that 'involves conduct that
presents a serious potential risk of physical injury to
another.'" Beckles v. United States, 137
S.Ct. 886, 890 (2017) (quoting USSG § 4B1.2(a)(2) (Nov.
2006)). After the Supreme Court held the residual clause to
be unconstitutionally vague in the context of the ACCA,
see Johnson v. United States, 135 S.Ct. 2551, 2557
(2015), the Sentencing Commission amended the Guidelines,
removing the residual clause and adding more enumerated
offenses. See USSG Supp. App. C, Amend. 798
(effective August 1, 2016). Subsequently, however, in
Beckles, the Court held that the Guidelines are not
subject to vagueness challenges, thereby confirming the
validity of the residual clause under the pre-2016
Guidelines. 137 S.Ct. at 890.
persuaded that Oklahoma voluntary manslaughter qualifies as a
"crime of violence" under the 2015 Guidelines.
Although the district court determined "without
doubt" that the offense satisfied § 4B1.2(a)(1)-the
"force clause"-we need not make a force-clause
determination because we conclude that Oklahoma voluntary
manslaughter qualifies as a crime of violence under the
residual clause. Under the 2015 Guidelines, the residual
clause was accompanied by commentary that contained
illustrative examples of offenses that met its "serious
potential risk of physical injury to another" test.
Manslaughter was one of the offenses contained in that list.
See USSG § 4B1.2, cmt., n.1 (Nov. 2015)
("'Crime of violence' includes . . .
manslaughter . . . ."). The Supreme Court has explained
that "commentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson v. United States, 508 U.S.
36, 38 (1993). Thus, under the 2015 Guidelines, manslaughter
is effectively an enumerated offense. See United States
v. Kosmes, 792 F.3d 973, 975 (8th Cir. 2015) (relying on
the commentary to USSG § 2L1.2(b)(1) to determine that
manslaughter was an enumerated offense); cf.
Beckles, 137 S.Ct. at 897 (Ginsburg, J., concurring in
the judgment) (explaining that Beckles's as-applied
challenge should fail because his prior conviction was
"expressly designated" as a crime of violence by
the official commentary).
we follow the categorical approach, looking to see
"whether the state statute defining" voluntary
manslaughter "categorically fits within the generic
federal definition of a corresponding crime of
violence." Kosmes, 792 F.3d at 975 (quoting
United States v. Roblero-Ramirez, 716 F.3d 1122,
1125 (8th Cir. 2013)). "[A] state offense is a
categorical match with a generic federal offense only if a
conviction of the state offense necessarily involved facts
equating to the generic federal offense." Id.
(quoting Moncrieffe v. Holder, 569 U.S. 184, 190
(2013)) (cleaned up). "By 'generic' federal
definition of [voluntary manslaughter], we mean the
'sense in which the term is now used in the criminal
codes of most States.'" Id. at 976 (quoting
Roblero-Ramirez, 716 F.3d at 1125)).
criminal code defines the offense of manslaughter through the
intersection of three statutory provisions. First, homicide
is defined as "the killing of one human being by
another." Okla. Stat. tit. 21, § 691(A). Homicide
is then divided into four mutually-exclusive categories:
murder, manslaughter, excusable homicide, or justifiable
homicide. Id. § 692. Each of those categories
is subsequently defined, and voluntary manslaughter-a further
subset of manslaughter-is defined as "[h]omicide . . .
perpetrated without a design to effect death, and in a heat
of passion, but in a cruel and unusual manner, or by means of
a dangerous weapon."Id. § 711(2). Thus, we
must determine whether this compound definition of voluntary
manslaughter fits within the "generic federal
definition" of manslaughter. See Kosmes, 792
F.3d at 975.
Kosmes, we turned to the Model Penal Code for
persuasive evidence of what constituted "generic federal
manslaughter, " because "the Model Penal Code
provides the best generic, contemporary, and modern
definition, [and] has been widely adopted." Id.
at 977 (quoting United States v. Peterson, 629 F.3d
432, 436 (4th Cir. 2011)). We did so because the crime with
which we were concerned, Guam involuntary (or reckless)
manslaughter, tracked the Model Penal Code exactly.
Compare 9 Guam Code Ann. § 16.50a)(1)
("Criminal homicide constitutes manslaughter when . . .
it is committed recklessly . . . .") with Model
Penal Code § 210.3(1)(a) (same). However,
Kosmes addressed an issue not relevant to this
appeal, as the defendant there raised a then-undecided
question about whether a manslaughter statute that only
required a mens rea of recklessness could qualify as a crime
of violence. 792 F.3d at 976-78.
case, on the other hand, presents a different question. This
is because-unlike involuntary manslaughter, which most often
occurs when the defendant lacks the requisite mental state to
commit homicide, see Wayne R. LaFave, Substantive
Criminal Law § 15.4(a) (discussing the lesser mens rea
required to commit involuntary manslaughter)-voluntary
manslaughter functions more like a partial defense to murder,
describing conduct undertaken intentionally but in the
"heat of passion." See LaFave §
15.2(a) n.7 & accompanying text (citing, inter alia,
Okla. Stat. tit. 21, § 711); see also Davis,
268 P.3d at 111 (describing manslaughter as a
"defense"). While the majority of states continue
to follow this common law definition, see LaFave
§ 15.2(a), the Model Penal Code has modernized the
language, referring to "a homicide which would otherwise
be murder [that] is committed under the influence of extreme
mental or emotional disturbance . . . ." Model Penal
Code § 210.3(1)(b). For our purposes, this linguistic
update, from "heat of passion" to "extreme
mental or emotional disturbance, " makes no difference.
Having examined Oklahoma case law, we discern nothing in the
state's application and analysis of the voluntary
manslaughter statute that demonstrates it departs in any
meaningful way from the "generic federal definition,
" and Steward provides none. We further
note, by way of confirmation, that Oklahoma's statute is
almost identical to the federal crime of "voluntary
manslaughter." See 18 U.S.C. § 1112(a)
("Manslaughter is the unlawful killing of a human being
without malice . . . . [u]pon a sudden quarrel or heat of
passion."); see also Okla. Unif. Jury Inst.,
116 P.3d at 148.
manslaughter also qualifies as a crime of violence under the
2016 Guidelines-which, as of August 1, 2016, made voluntary
manslaughter an explicitly enumerated offense. USSG §
4B1.2(a)(2) (Aug. 2016). We have already determined that
Oklahoma voluntary manslaughter satisfies the "generic
federal definition" of manslaughter. Thus, because
Oklahoma voluntary manslaughter qualifies as a crime of
violence under both versions of the Guidelines, ...