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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-41744                               FILED
                                                                          February 9, 2017

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

LAZARO LOBATON–ANDRADE,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-670-1


Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Lazaro Lobaton–Andrade pleaded guilty to illegal
reentry after deportation and was sentenced to 46 months of imprisonment.
Lobaton–Andrade appeals his sentence, asserting that a 2007 Arkansas
manslaughter conviction does not qualify as “manslaughter,” an enumerated
“crime of violence” offense under United States Sentencing Guidelines § 2L1.2.
Thus, Lobaton–Andrade contends, the district court erred in applying a 16-
level crime of violence sentencing enhancement based on that conviction. We


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         No. 15-41744
agree, and we VACATE his sentence and REMAND to the district court for
resentencing.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2007, Defendant–Appellant Lazaro Lobaton–Andrade pleaded guilty,
pursuant to a plea agreement, to manslaughter in Arkansas. At the time of
Lobaton–Andrade’s commission of that offense, Arkansas’s manslaughter
statute, Arkansas Code § 5-10-104, provided, in pertinent part, that:
      (a) A person commits manslaughter if:
            (1) He causes the death of another person under circumstances
                that would be murder, except that he causes the death under
                the influence of extreme emotional disturbance for which
                there is reasonable excuse. . . .
            (2) He purposely causes or aids another person to commit
                suicide;
            (3) He recklessly causes the death of another person; or
            (4) Acting alone or with one (1) or more persons he commits or
                attempts to commit a felony, and in the course of and in
                furtherance of the felony or in immediate flight therefrom:
                       (A) He or an accomplice negligently causes the death
                       of any person. . . .
The information charged Lobaton–Andrade with violating § 5-10-104(a)(1)
(i.e., charged that he caused the death of another under extreme emotional
disturbance), but also alleged that Lobaton–Andrade “did recklessly cause the
death of [another].” 1         After serving his sentence in Arkansas, Lobaton–




      1   Specifically, the information alleged as follows:
      Count # 1, Offense: 5-10-104(a)(1) ~ MANSLAUGHTER. Class C Felony
      The Defendant on or about, July 18, 2004 in Benton County, Arkansas, he cause[d]
      the death of another person under circumstances that would be murder, except that
      he cause[d] the death under the influence of extreme emotional disturbance for which
      there is reasonable excuse
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Andrade was deported from the United States.
      Lobaton–Andrade was subsequently found by immigration officials in
Brooks County, Texas, and charged with one count of being an alien who was
unlawfully present in the United States after deportation, in violation of
8 U.S.C. § 1326(a) and (b). Lobaton–Andrade pleaded guilty, without a plea
agreement, and a presentence investigation report (“PSR”) was prepared using
the 2014 edition of the United States Sentencing Guidelines.                 The PSR
recommended a base offense level of 8 pursuant to § 2L1.2(a) of the Guidelines.
It also recommended a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii),
concluding that Lobaton–Andrade’s 2007 Arkansas manslaughter conviction
constituted a “crime of violence” for which he received criminal history points.
After reducing Lobaton–Andrade’s offense level by 3 because of his acceptance
of responsibility, the PSR calculated a total offense level of 21. This total
offense level, combined with a criminal history category of III, yielded an
advisory sentencing range of 46 to 57 months of imprisonment.
      Lobaton–Andrade objected to the 16-level enhancement based on the
PSR’s designation of his 2007 Arkansas conviction as a “crime of violence.”
Lobaton–Andrade argued that the Arkansas offense did not constitute the
enumerated offense of “manslaughter” for purposes of § 2L1.2 because
Arkansas permits conviction for manslaughter with a mens rea of only
negligence. See Ark. Code Ann. § 5-10-104(a)(4). The Government argued in
response that the Arkansas manslaughter statute was divisible and the record
documents from Lobaton–Andrade’s prior case established that he was



      to wit: On or about July 18, 2004, defendant did recklessly cause the death of
      Brandon Haley in Benton County, Arkansas by striking him with a vehicle,
      against the peace and dignity of the state of Arkansas.
Lobaton–Andrade’s plea agreement included an agreed statement of facts (which mirrored
the “Prosecutor’s Short Report of Circumstances” attached to the judgment), but does not
identify the particular subsection of the statute to which he pleaded guilty.
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                                 No. 15-41744
convicted for committing the offense with a mens rea of recklessness. See id.
§ 5-10-104(a)(3). At the sentencing hearing, Lobaton–Andrade reaffirmed his
objection, which the district court overruled. The district imposed a sentence
of 46 months of imprisonment, the low end of the advisory range, as well as a
$100 special assessment. Lobaton–Andrade timely appealed.
              II. THE CRIME OF VIOLENCE ENHANCEMENT
      Lobaton–Andrade challenges the application of the district court’s crime
of violence enhancement based on his 2007 Arkansas manslaughter conviction.
Because    Lobaton–Andrade      properly   preserved   his    objection    to   that
enhancement, we review whether his prior conviction qualifies as a crime of
violence under the Guidelines de novo. See United States v. Hinkle, 832 F.3d
569, 574 (5th Cir. 2016).
      Under the Guidelines, a defendant who is convicted of illegal reentry
receives a 16-level enhancement to his base offense if he was previously
deported after a felony conviction for a “crime of violence.”             U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).   The commentary to the Guidelines defines “crime of
violence” to include, in pertinent part, “manslaughter.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). The threshold issue raised by this appeal is whether the Arkansas
manslaughter statute is divisible, such that Lobaton–Andrade’s offense of
conviction might be narrowed to “recklessly caus[ing] the death of another
person,” which is a categorical match for manslaughter under the Guidelines.
Ark. Code Ann. § 5-10-104(a)(3). If the statute is not divisible, the parties
agree that Lobaton–Andrade’s conviction under the Arkansas manslaughter
statute would not qualify for a crime of violence enhancement under the
Guidelines.
A. The Categorical and Modified Categorical Approaches
      The concept of divisibility derives from the so-called “categorical” and
“modified categorical” approaches we use to determine whether a defendant’s
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                                 No. 15-41744
conviction qualifies as an enumerated offense.       We generally employ the
categorical approach in determining whether a prior conviction is included
within an offense enumerated in the Guidelines. See, e.g., United States v.
Howell, 838 F.3d 489, 494 (5th Cir. 2016); Hinkle, 832 F.3d at 572. “Under this
approach, [we] line up the elements of the prior offense with the elements of
the generic [enumerated] offense . . . to see if they match.” Gomez–Perez v.
Lynch, 829 F.3d 323, 326 (5th Cir. 2016). “[I]f the elements of the prior offense
cover conduct beyond what the generic offense covers, then it is not a qualifying
offense.” Id. at 327. Importantly, the categorical approach “do[es] not consider
the actual conduct of the defendant in committing the offense,” Howell, 838
F.3d at 494, but is instead limited to “the fact of conviction and the statutory
definition of the prior offense,” Taylor v. United States, 495 U.S. 575, 602
(1990). Thus, “even if the defendant’s actual conduct (i.e., the facts of the
crime) fits within the generic offense’s boundaries,” a prior conviction is not a
qualifying offense if the statute defines the offense more broadly than the
Guidelines. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).
      Here, the parties agree that Lobaton–Andrade’s conviction does not
qualify as a crime of violence under the categorical approach because the
Arkansas manslaughter statute is broader than—and thus not a categorical
match with—the generic definition of manslaughter. But that does not end the
inquiry because we may apply the modified categorical approach “to narrow an
offense that otherwise would not be a categorical match with an enumerated
offense.” Gomez–Perez, 829 F.3d at 326. However, that approach only applies
when a statute is “divisible,” meaning it “sets out one or more elements of the
offense in the alternative.” Descamps v. United States, 133 S. Ct. 2276, 2281
(2013). In such cases, a court may “consult a limited class of documents . . . to
determine which alternative formed the basis of the defendant’s prior
conviction.” Id. The documents that a court may consult—commonly referred
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to as Shepard documents—include the indictment or information from the
earlier conviction, as well as “the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for the plea
was confirmed by the defendant.” Shepard v. United States, 544 U.S. 13, 26
(2005).
       Recently, in Mathis v. United States, the Supreme Court resolved a split
among the circuits regarding what qualifies as a divisible statute, clarifying
that a statute is only divisible (and, therefore, subject to the modified
categorical approach) if it creates multiple offenses by listing one or more
alternative elements, as opposed to merely listing alternative means of
satisfying a particular element. 2 Mathis, 136 S. Ct. at 2251–54; see also, e.g.,
Gomez–Perez, 829 F.3d at 326–27. “The practical difference being that a jury
has to agree on one of multiple elements that a statute lists, whereas the jury
need not agree on the same alternative means so long all jurors conclude that
the defendant engaged in one of the possible means of committing a crime.”
Gomez–Perez, 829 F.3d at 327. Thus, in light of Mathis, we have recognized
that “[t]he test to distinguish means from elements is whether a jury must
agree.” Howell, 838 F.3d 497; see also Hinkle, 832 F.3d at 575 (“[T]here is a
difference between alternative elements of an offense and alternative means of
satisfying a single element. Elements must be agreed upon by a jury.” (footnote
omitted)).
       When “‘a state court decision definitively answers the [means or
elements] question’” by specifying that there need not be agreement among the
jury as to the alternatively phrased items, “our inquiry is at an end” under



       2 “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the
‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248 (quoting Black’s
Law Dictionary 634 (10th ed. 2014)). “Means,” by contrast, are facts extraneous to the crime’s
legal requirements that “need neither be found by a jury nor admitted by a defendant.” Id.
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Mathis.   Howell, 838 F.3d at 498 (quoting Mathis, 136 S. Ct. at 2256).
Alternatively, as Mathis recognizes, “the statute on its face may resolve the
issue” when, for instance, the statutory alternatives carry different
punishments (and so are elements) or are listed as “illustrative examples” (and
so are means). Mathis, 136 S. Ct. at 2256. “And a statute may itself identify
which things must be charged (and so are elements) and which need not be
(and so are means).” Id.
      State law, however, may fail to provide a clear answer to the means or
elements question. Id. In such cases, Mathis offers courts another tool: it
allows them to consult the Shepard documents “for ‘the sole and limited
purpose of determining whether [the listed items are] element[s] of the
offense.’” Id. (alterations in original) (quoting Rendon v. Holder, 782 F.3d 466,
473–74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh’g en banc));
see also Ibanez–Beltran v. Lynch, --- F. App’x ---, 2017 WL 113916, at *3 (5th
Cir. 2017) (per curiam). If those documents “reiterat[e] all the terms of [the]
law,” then Mathis instructs that “each alternative is only a possible means of
commission, not an element that the prosecutor must prove to a jury beyond a
reasonable doubt.” Mathis, 136 S. Ct. at 2257.          Conversely, the record
documents might indicate that the statute contains elements going toward
separate crimes “by referencing one alternative term to the exclusion of all
others.” Id. Mathis cautions, however, that “such record materials will not in
every case speak plainly, and if they do not, a sentencing judge will not be able
to satisfy ‘[the] demand for certainty’ when determining whether a defendant
was convicted of a generic offense.” Id. (quoting Shepard, 544 U.S. at 21).
B. Divisibility of the Arkansas Manslaughter Statute
      With this background in mind, we turn to the threshold issue presented
by this appeal: whether Arkansas Code § 5-10-104(a) is divisible. As directed
by Mathis, we begin our analysis of this issue with Arkansas law. Arkansas’s
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court of appeals has permitted instructions on more than one manslaughter
alternative under § 5-10-104(a) without apparently requiring a unanimous
jury finding on the particular manslaughter alternative that was proved, see
Worring v. State, 616 S.W.2d 23, 24 (Ark. Ct. App. 1981); see also Albretsen v.
State, 454 S.W.3d 232, 235–36 (Ark. Ct. App. 2015); Donovan v. State, 764
S.W.2d 47, 50 (Ark. Ct. App. 1989), which suggests that the Arkansas
manslaughter statute’s subsections are alternative means of satisfying a single
mens rea element. Indeed, the Arkansas Supreme Court has described the
subsections of the Arkansas manslaughter statute as containing “alternative
grounds,” Wyles v. State, 182 S.W.3d 142, 146 (Ark. 2004), and found that the
two second-degree murder alternatives under Arkansas Code § 5-10-103(a)—
the immediately preceding section—are “two ways” of establishing a single
“mens rea element,” Wyles v. State, 249 S.W.3d 782, 786 (Ark. 2007).
      The Government counters that Arkansas Code § 5-1-102 nonetheless
makes clear that the manslaughter statute’s subsections establish alternative
elements going toward separate crimes. 3 § 5-1-102 defines an “element of [an]
offense” to mean, in pertinent part, “the conduct, the attendant circumstances,
or the result of conduct that . . . [e]stablishes the kind of culpable mental state
required for the commission of the offense.” According to the Government, each
subsection of the manslaughter statute identifies a different “kind of culpable
mental state” and, thus, a separate element. The Government’s argument has
some appeal but ultimately fails under scrutiny. As the Government points
out, Arkansas courts have sometimes analyzed the culpable mental states set
forth in the manslaughter statute separately, see, e.g., Rollins v. State, 347
S.W.3d 20, 26 (Ark. 2009) (analyzing whether the state proved the defendant


      3  Therefore, according to the Government, § 5-10-104(a) actually establishes four
different manslaughter offenses: (1) extreme emotional disturbance manslaughter; (2)
assisted suicide manslaughter; (3) reckless manslaughter; and (4) felony manslaughter.
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                                  No. 15-41744
“recklessly caused the death of another person”), which does support its
position. But in those cases only one subsection of the Arkansas manslaughter
statute appears to have been charged. When more than one subsection was
charged, Arkansas courts have analyzed the culpable mental state identified
in the manslaughter statute’s subsections collectively. See, e.g., Worring, 616
S.W.2d at 24 (analyzing whether there was evidence that the defendant either
recklessly caused her husband’s death or caused his death under extreme
emotional disturbance).      This suggests that Arkansas courts treat the
manslaughter statute’s subsections, collectively, as establishing the “kind of
culpable mental state” required to commit the offense of manslaughter.
Restated, it suggests that Arkansas courts treat the multiple culpable mental
states set forth in the manslaughter statute as alternative means of
establishing a single mens rea element. Under Mathis, this conclusion is likely
sufficient to resolve the issue of divisibility. See, e.g., Howell, 838 F.3d at 498
(recognizing that a court’s inquiry is at an end under Mathis when state law
definitively answers the means or elements question).
      But even examining the text of § 5-10-104(a), as the Government urges
us to do, the result would be same. The Government argues that the Arkansas
manslaughter statute is divisible because it does not offer “illustrative
examples,” which Mathis concluded set forth “only a crime’s means of
commission.” Mathis, 136 S. Ct. at 2256. Mathis did not, however, hold the
converse: that a statute that does not offer illustrative examples sets forth
alternative elements going towards different crimes. See Howell, 838 F.3d at
497–99 (holding that a statute set forth alternative means even though it did
not offer illustrative examples); Gomez–Perez, 829 F.3d at 328 (same). If we
were writing on a clean slate, the absence of illustrative examples might well
support a finding that the Arkansas manslaughter statute’s subsections set
forth alternative elements. See United States v. Uribe, 838 F.3d 667, 670 (5th
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                                  No. 15-41744
Cir. 2016) (relying on the absence of illustrative examples to conclude that
statute set forth alternative elements). But we are not. As discussed supra,
Arkansas courts have already suggested that the multiple mental states listed
in the Arkansas manslaughter statute list alternative means of establishing a
single mens rea element. And this is consistent with what has been described
as “widespread acceptance” for construing analogous first-degree murder
statutes setting forth multiple “mental states as alternative means of
satisfying the mens rea element of the single crime of first-degree murder.”
Schad v. Arizona, 501 U.S. 624, 642 (1991) (plurality opinion).
      If we examine the Shepard documents from Lobaton–Andrade’s 2007
Arkansas conviction, the result is consistent. As discussed supra, the facts of
Lobaton–Andrade’s prior crime are unimportant at this stage, as the Shepard
documents may be consulted only for the narrow purpose of determining
whether the subsections of the Arkansas manslaughter statute are elements
or means. Mathis, 136 S. Ct. at 2256–57. Here, the information alleges that
Lobaton–Andrade “did recklessly cause the death of [another] . . . by striking
him with a vehicle.” At first blush, this suggests that the alternative mental
states listed in § 5-10-104(a) constitute separate elements. See Mathis, 136 S.
Ct. at 2257 (“[A]n indictment . . . could indicate, by referencing one alternative
term to the exclusion of all others, that the statute contains a list of elements,
each one of which goes toward a separate crime.”); see also Ibanez–Beltran, ---
F. App’x at ---, 2017 WL 113916, at *3. Yet the information also charges
Lobaton–Andrade under a completely different subsection of the manslaughter
statute—§ 5-10-104(a)(1), concerning death of another under extreme
emotional disturbance—which suggests that the alternative mental states
listed in § 5-10-104(a) are merely means, rather than elements. Thus, this is
one of those instances where the Shepard documents do not “speak plainly” on
the question of means or elements, and accordingly, they cannot support a
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                                      No. 15-41744
finding of divisibility. Mathis, 136 S. Ct. at 2257 (citing Shepard, 544 U.S. at
21).
         In sum, the Government has failed to demonstrate that the subsections
of the Arkansas manslaughter statute list alternative elements, rather than
means, and that the statute is, therefore, divisible. See, e.g., United States v.
Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam) (recognizing that it
is the Government’s burden to prove that a prior conviction qualifies for a
sentencing enhancement).           Because the Arkansas manslaughter statute
indisputably “cover[s] a greater swath of conduct” than the Guideline’s offense
of manslaughter, Lobaton–Andrade’s 2007 Arkansas manslaughter conviction
cannot otherwise qualify as a “crime of violence” under § 2L1.2(b)(1)(A)(ii) of
the Guidelines. Mathis, 136 S. Ct. at 2251. Therefore, the district court erred
in apply the 16-level crime of violence sentencing enhancement, and Lobaton–
Andrade must be resentenced. 4 We express no opinion as to the appropriate
sentence on remand.
                                 IV. CONCLUSION
         For the foregoing reasons, we VACATE Lobaton–Andrade’s sentence and
REMAND to the district court for resentencing.




         The parties agree that the district court’s error was harmful and that Lobaton–
         4

Andrade’s 2007 Arkansas manslaughter conviction would not qualify as a crime of violence
on the alternative ground that it had an element of force. Accordingly, we do not separately
address those issues here.
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