United States of America v. Dominguez-Hernandez

U.S. Court of Appeals for the Fifth Circuit

2004 U.S. App. LEXIS 10676

Petitioner Israel Dominguez-Hernandez (“Dominguez”), a Mexican citizen, appeals the retroactive application of the 2002 U.S. Sentencing Guidelines that increased his 2001 offense from level eight to twenty-four.  In 1987, Dominguez was convicted of involuntary manslaughter in Texas and received a six-year prison sentence.  In 1990, he was deported to Mexico.  In 2001, an immigration official found Dominguez in the U.S. while he was serving a yearlong sentence for possession of cocaine.  Dominguez pled guilty to the offense of being illegally present in the U.S. subsequent to deportation.

The probation officer handling Dominguez’ case applied the 2002 Sentencing Guidelines and recommended a sixteen-level enhancement because of Dominguez’ involuntary manslaughter conviction.  Dominguez objected to the adjustment and argued that the 2000 Guidelines effective at the time of his 2001 offense should apply.  The district court overruled Dominguez’ objection, holding that the increase applied under both sets of the Guidelines and sentenced Dominguez to 80 months imprisonment. 

The Court of Appeals for the Fifth Circuit distinguished the two sets of Guidelines.  The 2002 Guidelines specifically categorize manslaughter as a “crime of violence,” triggering the sixteen-level enhancement.  In contrast, the 2000 Guidelines provide for a four-level adjustment unless the underlying crime is an “aggravated felony,” (also defined as a “crime of violence”), in which case the sixteen-level enhancement applies.  The Court rejected the government’s argument that Dominguez failed to preserve his objection on appeal by not specifically referring to the ex post facto clause.  The ex post facto clause of the U.S. Constitution prohibits the retroactive application of a law if it would result in a more severe penalty than the law in effect when the offense was committed.  The Court found that the basis of Dominguez’ objection was evident and valid and that the 2000 Guidelines should apply to Dominguez’ case.

The Fifth Circuit held that under Texas law, involuntary manslaughter does not constitute a “crime of violence,” inherently involving the intentional use, attempted or threatened use, or the substantial risk of physical force against another’s person or property.  Texas defines involuntary manslaughter as recklessly causing another’s death.  Because Dominguez’ offense was not a “crime of violence,” the sixteen-level enhancement was inappropriate.  The Court vacated the district court’s opinion and remanded for resentencing.