Published on: Tuesday, December 4, 2018

The en banc Fifth Circuit recently found it “necessary to overrule” 18 of its precedents in deciding United States v. Reyes-Contreras, No. 16-41218 (5th Cir. Nov. 30, 2018)—a case which tackles a sentencing enhancement for a crime of violence (COV).  Here are some of the highlights:

     Fredis Reyes-Contreras pleaded guilty of illegal reentry. Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence (“COV”). Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement. Burdened by binding caselaw that required us to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing. The court granted the government’s petition for rehearing en banc, thus vacating the panel opinion. Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence.


     As with many legal standards, decisions are difficult at the margins. But this case is nowhere near the margin. Except as otherwise directed by the Supreme Court, sentencing should not turn on “reality-defying distinctions.” United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied139 S. Ct. 63 (2018). The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs. A more realistic approach comports with reason and common sense.

   In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisible. Using the modified categorical approach, Reyes-Contreras was convicted under Subdivision (1), which is generic manslaughter, a COV. In the alternative, even if Section 565.023.1 were not divisible, we hold that the statute as a whole is a COV because Subdivision (2) satisfies the use-of-force requirement and thus is independently a COV.

     In finding “use of force” for purposes of identifying COVs, the distinction between direct and indirect force is abolished. Likewise for the now-repudiated distinction between causing injury and using direct force. We show that the Missouri assisted-suicide statute satisfies the use-of-force requirement. And we hold that, even if it did not, there is not the realistic probability of enforcement.

(footnotes omitted). The Training Division provides sentencing resources specifically on enhancements for crimes of violence and violent felonies to help you argue for the best possible sentence for your client.