United States of America v. Randall Tyrell Steward

Randall 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 1 some objections, but overruled Steward’s

1The Honorable Timothy L. Brooks, United States District Judge for the

Western District of Arkansas.

objection to the categorization of his prior conviction for Oklahoma voluntary

manslaughter, see Okla. Stat. tit. 21, § 711(2), 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.

“We 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

2The Oklahoma statute does not label the various types of first-degree

manslaughter defined in § 711. However, it is clear from the statute that each

subsection describes a separate offense with distinct, non-overlapping elements. Cf.

Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (describing a statutory

provision that “define[s] a single crime”). The relevant definition in this

case—contained in § 711(2)—“is similar to” the federal offense of voluntary

manslaughter, defined in 18 U.S.C. § 1112. See In re Okla. Unif. Jury Inst. for

Juvenile Cases, 116 P.3d 119, 148 (Mem) (Okla. 2005); Campbell v. State, 636 P.2d

352, 357 n.1 (Okla. Crim. App. 1981) (“The distinction between murder and

voluntary manslaughter is found in the dividing line between malicious action on the

one hand and action in the heat of passion on the other . . . .”); Morgan v. State, 536

P.2d 952, 954, 959 (Okla. Crim. App. 1975) (describing voluntary manslaughter),

overruled on other grounds by Walton v. State, 744 P.2d 977 (Okla. Crim. App.

1987); see also Brown v. State, 777 P.2d 1355, 1357 (Okla. Crim. App. 1989)

(referring to “heat of passion first degree manslaughter”). Likewise, § 711(1)

describes “misdemeanor manslaughter,” State v. Ceasar, 237 P.3d 792, 794 (Okla.

Crim. App. 2010), and § 711(3) describes “manslaughter by resisting criminal

attempt,” Davis v. State, 268 P.3d 86, 116 (Okla. Crim. App. 2011).

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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 affirm.

In 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.

We are 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 . . .

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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).

Therefore, 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 3 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)).

3“Cleaned up” is a new parenthetical used to eliminate unnecessary explanation

of non-substantive prior alterations. See Jack Metzler, Cleaning Up Quotations, J.

App. Prac. & Process (forthcoming 2018), http://dx.doi.org/10.2139/ssrn.2935374.

This parenthetical can be used when extraneous, residual, non-substantive

information has been removed, in this case, internal quotation marks, brackets,

additional quoting parentheticals and an ellipsis. See also United States v. Reyes, 866

F.3d 316, 321 (5th Cir. 2017).

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Oklahoma’s 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.”4

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.

In 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.

4Because they only serve to narrow the scope of the offense, both of the listed

alternatives—“in a cruel and unusual manner” and “by means of a dangerous

weapon”—do not need to be analyzed under Mathis, 136 S. Ct. at 2251 (contrasting

“elements” and “means”).

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Steward’s 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 5 provides none. We further note,

by way of confirmation, that Oklahoma’s statute is almost identical to the federal

5 Oklahoma’s statute does contain the additional requirement that the defendant

have acted “without a design to effect death.” Okla. Stat. tit. 21, § 711(2). However,

our review of the case law indicates that that language has been interpreted to further

emphasize the necessary level of “passion” for this quasi-defense to apply—in other

words, to downgrade the offense from murder—rather than as a separate or additional

element. See Davis, 286 P.3d at 111 (“The heat of passion must render the mind

incapable of forming a design to effect death before the defense of manslaughter is

established.”) (citing Allen v. State, 821 P.2d 371, 374 (Okla. Crim. App. 1991));

Eizember v. State, 164 P.3d 208, 236 (Okla. Crim. App. 2007) (“The ‘passion’

necessary to support a manslaughter instruction must be so great as to ‘render the

mind incapable of forming a design to effect death.’” (quoting Charm v. State, 924

P.2d 754, 760 (Okla. Crim. App. 1996))); see also Bryson v. Ward, 187 F.3d 1193,

1208 (10th Cir. 1999) (citing Charm, 924 P.2d at 760 for the same proposition).

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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.

Oklahoma 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, there is no Ex Post Facto Clause

issue as to Steward’s sentence, and he was properly sentenced as a career offender.

The judgment of the district court is affirmed.