Appellate Case: 23-6073 Document: 010111093863 Date Filed: 08/13/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 13, 2024
FOR THE TENTH CIRCUIT Christopher M. Wolpert Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6073
JULIAN MANZANO, a/k/a Julian Manzano, Jr., a/k/a Ju Man,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:22-CR-00176-JD-1) _________________________________
Kyle E. Wackenheim, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.
Steven W. Creager, Assistant United States Attorney, Danielle M. Connolly, Assistant United States Attorney (Robert J. Troester, United States Attorney, with them on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee. _________________________________
Before HOLMES, Chief Judge, and SEYMOUR, and BALDOCK, Circuit Judges. _________________________________
SEYMOUR, Circuit Judge. _________________________________
Mr. Julian Manzano pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). During sentencing, the district court ruled that Mr. Appellate Case: 23-6073 Document: 010111093863 Date Filed: 08/13/2024 Page: 2
Manzano’s prior Oklahoma conviction for second-degree murder qualified as a “crime of
violence” under § 4B1.2(a)(2) of the United States Sentencing Guidelines (“U.S.S.G.”)
and, accordingly, applied a higher base offense level. On appeal, Mr. Manzano challenges
that ruling. Because Oklahoma second-degree murder does not categorically match generic
“murder” under the Guidelines, we reverse.
I.
Just twenty-five days free after serving thirteen years in prison, on March 26, 2022,
Mr. Manzano was pulled over by Oklahoma City police while driving. After approaching
the vehicle, officers observed smoke and smelled the odor of burnt marijuana inside Mr.
Manzano’s car and they requested that he exit the vehicle. Mr. Manzano initially refused
but complied when backup officers subsequently arrived. Officers searched the vehicle and
discovered a .45 caliber pistol and ammunition. Mr. Manzano admitted that the pistol was
his and that he had owned it for approximately four months.
Because of a prior 2009 conviction for Oklahoma second-degree murder, Mr.
Manzano was indicted for, and pled guilty to, one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).1 In anticipation of sentencing, the United
States Probation Office prepared a Presentence Investigation Report (“PSR”) to calculate
Mr. Manzano’s advisory guideline range. The PSR classified Mr. Manzano’s prior
1 Section 922(g)(1) prohibits “any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).
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Oklahoma second-degree murder conviction as a “crime of violence” under U.S.S.G.
§ 2K2.1(a)(4)(A) and, accordingly, recommended a base offense level of 20. See U.S.S.G.
§ 2K2.1(a)(4)(A) (raising a defendant’s base offense level from 12 to 20 if “the defendant
committed any part of the instant offense subsequent to sustaining one felony conviction
[for] a crime of violence” (emphasis added)). A prior conviction is classified as a “crime of
violence” under the Guidelines in one of two ways: either as (1) an offense that “has as an
element the use, attempted use, or threatened use of physical force against the person of
another,” see § 4B1.2(a)(1), or (2) as “murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, arson, [or] extortion,” among other
crimes, see § 4B1.2(a)(2) (emphasis added). Section 4B1.2(a)(1) is commonly referred to
as the “elements clause,” and § 4B1.2(a)(2) as the “enumerated offenses clause.” See, e.g.,
United States v. Winder, 926 F.3d 1251, 1253 (10th Cir. 2019); United States v. O’Connor,
874 F.3d 1147, 1150 (10th Cir. 2017).
Mr. Manzano objected to the PSR. He argued that Oklahoma second-degree murder
does not constitute a “crime of violence” under either § 4B1.2(a)’s elements clause or
enumerated offense clause and that, as such, he was entitled to a lower base offense level.2
Of specific relevance to this appeal, Mr. Manzano argued that Oklahoma second-degree
murder does not match the Guidelines’ generic definition of “murder” in § 4B1.2(a)(2). At
sentencing, the district court disagreed. It held that Mr. Manzano’s prior conviction for
2 Without the application of U.S.S.G. § 2K2.1(a)(4)(A), Mr. Manzano’s advisory guideline range would have likely been reduced to 12 to 18 months’ imprisonment.
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Oklahoma second-degree murder qualified as generic murder and was thus a “crime of
violence” under the Guidelines. It ultimately sentenced him to 27 months’ imprisonment.
Mr. Manzano appealed.
II.
Mr. Manzano argues the district court erred when it found that Oklahoma second-
degree murder qualified as a “crime of violence” and therefore asks us to vacate his
sentence and remand for resentencing. In support, he raises two arguments. First, that
Oklahoma second-degree murder does not qualify as a “crime of violence” under U.S.S.G.
§ 4B1.2(a)(1) because it can be committed without “the use, attempted use, or threatened
use of physical force against another.” And second, that Oklahoma second-degree murder
does not qualify as a “crime of violence” under U.S.S.G. § 4B1.2(a)(2) because it does not
match this circuit’s generic definition of “murder.”3 We review de novo “[w]hether a prior
conviction qualifies as a crime of violence for purposes of the sentencing guidelines.”
United States v. Mendez, 924 F.3d 1122, 1124 (10th Cir. 2019).
3 Mr. Manzano also raises a third argument: That Oklahoma second-degree murder independently does not qualify as a “crime of violence” under U.S.S.G. § 4B1.2(a)(2) because Oklahoma includes fetuses within the definition of a “person” for the purposes of second-degree murder, but the federal generic definition of “murder” does not. See Okla. Stat. tit. 21, § 691(B) (defining, for the purposes of Oklahoma homicide, a “human being” as including “unborn child[ren]”). This means, he argues, that Oklahoma’s second-degree murder statute is broader than § 4B1.2(a)(2) and therefore a categorical mismatch. Because the government has waived any challenge to Mr. Manzano’s first argument, see infra note 4, and because Mr. Manzano succeeds on the merits on his second argument, it is unnecessary to address this issue.
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The determinative question in this case is whether Mr. Manzano’s Oklahoma
second-degree murder conviction categorically matches the definition of “murder” in
U.S.S.G. § 4B1.2(a)(2), i.e., the enumerated offenses clause.4 When determining whether a
prior conviction qualifies as a “crime of violence” under the Guidelines (and therefore
whether the higher base offense level in § 2K2.1(a)(4)(A) is applicable), we apply what is
known as the “categorical approach.” See United States v. Venjohn, 104 F.4th 179, 184
(10th Cir. 2024). This approach demands that we compare the elements of the defendant’s
prior criminal offense with the Guidelines’ definition of a “crime of violence.” See, e.g.,
United States v. Wilkins, 30 F.4th 1198, 1201 (10th Cir. 2022) (“Under the categorical
approach, we compare the underlying state statute to the guidelines’ definition of a ‘crime
of violence.’”). “Crucially, we do not look to the ‘underlying facts’ of a specific
defendant’s conviction; we look only to the predicate crime’s elements.” Venjohn, 179
F.4th at 184. See also O’Connor, 874 F.3d at 1151 (noting that under the categorical
approach a court “looks to the elements of the statute of conviction ‘and not to the
particular facts underlying that conviction’” (quoting Taylor v. United States, 495 U.S. 575,
600 (1990)) (cleaned up)). When analyzing the enumerated offense clause specifically, “we
compare the elements of the defendant’s crime of conviction . . . with the elements of any
potentially applicable § 4B1.2(a)(2) enumerated offenses . . . to see if they match.”
4 Mr. Manzano argued that his prior conviction does not qualify as a “crime of violence” under the elements clause, and the government declined to challenge or otherwise address this issue in their Answer. “[A]rguments not briefed on appeal are waived.” United States v. Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002).
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O’Connor, 874 F.3d at 1151. “If the scope of conduct covered by the elements of [the
defendant’s prior conviction] . . . is broader than what the enumerated offense definition
would cover, the ‘crime of violence’ sentencing enhancement” in § 2K2.1(a)(4)(A) is
inapplicable under that clause. Id. at 1151–52.5 This is an absolutist approach. If the state
statute criminalizes more conduct than is criminalized by § 4B1.2(a)’s “crime of violence”
definition, then no conviction under that state statute may qualify as a “crime of violence.”
See id. at 1151. “The test is all or nothing.” United States v. Mendez, 924 F.3d 1122, 1124
(10th Cir. 2019).
In the event the Guidelines themselves do not provide a definition of the enumerated
offense, “we must determine [the offense’s] generic definition by considering ‘a wide
range of sources . . ., including federal and state statutes, the Model Penal Code,
dictionaries, and treatises.’” O’Connor, 874 F.3d at 1151 (quoting United States v. Rivera-
Oros, 590 F.3d 1123, 1126–27 (10th Cir. 2009)). See, e.g., United States v. Castro-Gomez,
792 F.3d 1216, 1217 (10th Cir. 2015) (“[A] state murder conviction categorically qualifies
as a crime of violence only if the state’s definition of murder corresponds with the uniform
generic definition of the crime.”).
5 When comparing the conduct criminalized by the state statute and the conduct encompassed by § 4B1.2(a)’s “crime of violence” definition, “we look to the least of the acts criminalized by the [state] statute.” United States v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017). See also O’Connor, 874 F.3d at 1153 (comparing whether the “minimum conduct needed to constitute Hobbs Act robbery fits within generic robbery” (emphasis added)).
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We start by defining murder under the Guidelines or, if the Guidelines do not offer a
definition, by defining generic murder. We then define Oklahoma second-degree murder.
Finally, we compare the two definitions to determine if Oklahoma second-degree murder
criminalizes a broader swath of conduct than murder under the Guidelines. See generally
O’Connor, 874 F.3d at 1153–55. See also Castro-Gomez, 792 F.3d at 1220 (“[W]e
conclude the appropriate inquiry requires a court to ask whether the elements of a
defendant’s actual crime of conviction . . . correspond with the elements of its generic
counterpart.”). If Oklahoma second-degree murder criminalizes a broader swath of
conduct, then the two are a categorical mismatch and § 2K2.1(a)(4)(A)’s sentencing
enhancement will not apply. If it does not, then the two are a categorical match and
§ 2K2.1(a)(4)(A)’s sentencing enhancement will apply.
A.
One of the enumerated offenses in U.S.S.G. § 4B1.2(a)(2) that always qualifies as a
“crime of violence” is “murder.” § 4B1.2(a)(2). However, the Guidelines do not further
define that term or identify its elements. Ordinarily that would leave us to determine the
offense’s “generic definition,” i.e., what “murder” means according to “federal and state
statutes, the Model Penal Code, dictionaries, and treatises.’” O’Connor, 874 F.3d at 1151
(quoting Rivera-Oros, 590 F.3d at 1126–27). We need not reinvent the legal wheel here,
however. In United States v. Castro-Gomez, we adopted a portion of the Third Circuit’s
definition of generic murder from its decision in United States v. Marrero, 743 F.3d 389
(3d. Cir. 2014), overruled on other grounds by Johnson v. United States, 576 U.S. 591
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(2015). See Castro-Gomez, 792 F.3d at 1216–17 (quoting Marrero where we held that
“[t]he generic definition of murder requires a killer’s conduct to at least evince a ‘reckless
and depraved indifference to serious dangers posed to human life’”). The Third Circuit
extensively consulted the Model Penal Code, Black’s Law Dictionary, and various state
laws before ultimately holding that: “[M]urder is generically defined as causing the death
of another person either intentionally, during the commission of a dangerous felony, or
through conduct evincing reckless and depraved indifference to serious dangers posed to
human life.” Marrero, 743 F.3d at 401.
Both Mr. Manzano and the government accept Marrero’s definition for the purposes
of appeal, and we agree. Our sister circuit’s analysis in Marrero was comprehensive, and
so we finish the journey we began in Castro-Gomez. We adopt in full Marrero’s definition
of generic murder.6 Relevant to Mr. Manzano’s case, we note that the definition of generic
murder requires that, if committed during the commission of a felony, the underlying
felony be “dangerous.” Marrero, 743 F.3d at 401.
B.
6 By doing so, we become the second circuit to adopt Marrero’s definition of generic murder. See United States v. Vederoff, 914 F.3d 1238, 1246 (9th Cir. 2019). We are unaware of any competing definitions of generic murder adopted by our other sister circuits. See, e.g., United States v. Hernandez-Morales, 760 F. App’x 258, 260 (5th Cir. 2019) (“We have not even adopted a definition of generic murder.”); United States v. Hopskin, 702 F. App’x 335, (6th Cir. 2017) (holding that “[g]eneric murder includes unintentional (e.g., reckless) types of murder,” but not adopting a full definition); United States v. Castillo, 896 F.3d 141, 151 (2d. Cir 2018) (offering a historical definition of murder but not adopting a generic one).
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We next turn to Oklahoma’s definition of second-degree murder. Oklahoma law
provides:
Homicide is murder in the second degree . . . [1] [w]hen perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or [2] [w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act [Okla. Stat. tit 21, § 701.7, dealing with first-degree murder].
Okla. Stat. tit. 21, § 701.8 (emphasis added).
The relevant phrase is “any felony.” If Oklahoma second-degree murder can be
committed during the commission of any felony (even non-dangerous felonies), then it
criminalizes a broader swath of conduct than murder as we have generically defined it
(which can only be committed during the commission of dangerous felonies, see Marrero,
743 F.3d at 401). The government argues that, despite the text of § 701.8, Oklahoma
caselaw confines second-degree murder to “dangerous” felonies. Mr. Manzano asserts that
§ 701.8 reaches beyond only “dangerous” felonies and sweeps in even non-dangerous
felonies. At bottom, then, our inquiry is one of scope: What does the phrase “any felony” in
§ 701.8 actually mean?
We agree with Mr. Manzano and conclude that non-dangerous felonies can serve as
predicate felonies for Oklahoma second-degree murder. To determine the scope of
§ 701.8’s “any felony” language, we look to its interpretation by Oklahoma state courts,
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specifically by the Oklahoma Court of Criminal Appeals.7 See Venjohn, 104 F.4th at 185
(“[S]tate law ‘defines the substantive elements of the crime of conviction.’” (quoting
United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017))). See also, e.g., Johnson v.
United States (Johnson I), 559 U.S. 133, 138 (2010) (“We are ... bound by the Florida
Supreme Court’s interpretation of state law, including its determination of the elements of
[the crime of conviction].”). The foundational case to address this issue is Wade v. State,
581 P.2d 914 (Okla. Crim. App. 1978). There, the Oklahoma Court of Criminal Appeals
held that felonies that could qualify as predicates for second-degree murder “must be [(a)]
inherently or potentially dangerous to human life, [(b)] inherently dangerous as determined
by the elements of the offense or [(c)] potentially dangerous in light of the facts and
circumstances surrounding both the felony and the homicide.” Wade, 581 P.2d at 916.
This language was repeated by the Court when it adopted revisions to Oklahoma’s
Uniform Jury Instructions. See In re Adoption of 2012 Revisions to Okla. Unif. Jury
Instructions—Crim. (Second Edition), 287 P.3d 990, 1009 (Okla. Crim. App. 2012). In that
order, the Court wrestled with the very question facing us here: Can non-dangerous
felonies constitute predicate felonies for second-degree murder? It cautioned against the
overbreadth of the phrase “any felony.” Such language, it warned, “raises the specter of a
forger[8] being convicted of murder if he accidentally trips his victim and causes the victim
7 “[T]he Oklahoma Court of Criminal Appeals [is] the highest court on criminal matters in Oklahoma.” Cummings v. Evans, 161 F.3d 610, 615 (10th Cir. 1998). 8 Forgery in either the first or second degree is a felony in Oklahoma. Okla. Stat. tit. 21, § 1621(A), (B).
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to strike his head and suffer death.” Id. at 1009. This concern, the Court explained, was
why “[t]he restriction of the felony-murder rule to those crimes which evince some
potential for peril to others” was given “explicit recognition” in Wade. Id. (citing to Wade,
581 P.2d at 916).
And yet, the Court was also clear that so-called “nonperilous felonies,” like larceny
or false pretenses, could qualify as predicate felonies for second-degree murder if
“committed in such a way as to create a potential danger to life.” Id. (“[T]he facts of the
particular case, including the circumstances under which the felony was perpetrated, must
be examined in order to determine whether even a nonperilous felony is committed in such
a way as to create a potential danger to life.”). It is the responsibility of Oklahoma trial
judges to “examin[e] [] the circumstances in which the [felony] was committed, as well as
of the [felony] itself,” and then to determine whether instructing the jury on felony-murder
is appropriate. Id.
The text of Wade and In re Adoption plainly belie the government’s assertion that
only dangerous felonies can constitute predicate felonies for Oklahoma second-degree
murder. Both establish that “nonperilous felonies,” if “potentially dangerous to human life”
or if “committed in such a way as to create a potential danger to life,” can serve as
predicate felonies for Oklahoma second-degree murder. Wade, 581 P.2d at 916 (emphasis
added); In re Adoption, 287 P.3d at 1009 (emphasis added). The “minimum conduct
necessary to constitute” Oklahoma second-degree murder, then, is murder perpetrated
during the commission of a potentially, not actually, dangerous felony. O’Connor, 874
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F.3d at 1155. True, the felony at issue cannot be untethered from “dangerousness,” see In
re Adoption, 287 P.3d at 1009, but the felony need not always be “actually” or “inherently”
dangerous as the government would have us believe. “Potentially dangerous” felonies will
suffice. Wade itself is a paradigmatic example. There, Mr. Wade was convicted of second-
degree murder after bringing his gun into a bar. Wade, 581 P.2d at 915. The “possession of
a loaded pistol in an establishment where beer or alcoholic beverages are consumed” was,
at that time, a felony under Oklahoma law. Okla. Stat. tit. 21, § 1272.2 (repealed 2021). On
appeal, Mr. Wade argued that there was insufficient evidence to convict him of second-
degree murder because his carrying a gun into the bar was not the proximate cause of the
victim’s death. Id. The Oklahoma Court of Criminal Appeals disagreed. It held that there
was a sufficient “nexus between [Mr. Wade’s] underlying felony and the homicide,” and,
moreover, that the underlying felony’s “potentiality for danger to human life” was “clear.”
Id. at 916. The Court stopped short of declaring Mr. Wade’s underlying felony to be
actually dangerous; it was only potentially dangerous, specifically “in light of the facts and
circumstances surrounding both the felony and the homicide.” Id. That was enough.
Several other cases from the Oklahoma Court of Criminal Appeals further support
our conclusion that potentially, but not necessarily inherently, dangerous felonies can be
predicates for Oklahoma second-degree murder. In Barnett v. State, 263 P.3d 959, 970
(Okla. Crim. App. 2011), the Court affirmed the second-degree murder conviction of a
defendant who had feloniously used “a vehicle to facilitate [the] intentional discharge of a
firearm.” In Malaske v. State, 89 P.3d 1116, 1117 (Okla. Crim. App. 2011), the Court
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affirmed the second-degree murder conviction of a defendant who had feloniously
furnished alcohol to a minor.9 And in Baker v. State, 966 P.2d 797, 798 (Okla. Crim. App.
1998), the Court affirmed the second-degree murder conviction of a defendant when the
predicate felony was a second DUI. The facts and felonies at issue in those cases affirm
that potentially dangerous felonies suffice as predicates for second-degree murder under
Oklahoma law.
C.
The final step in our analysis is a comparison of the elements of Oklahoma second-
degree murder and the federal definition of generic murder. See O’Connor, 874 F.3d at
1151. Recall, the elements of Oklahoma second-degree murder and our definition of
generic murder must be a “categorical match.” If Oklahoma’s statute criminalizes more
conduct than is encompassed by our definition of generic murder, then no conviction under
Oklahoma’s second-degree murder statute may qualify as “murder” under the enumerated
offense clause and, by extension, as a “crime of violence” under U.S.S.G. § 4B1.2(a)(2).
See e.g., United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) (“If the [state]
statute sweeps more broadly than the [Guideline] definition—that is, if some conduct
would garner a conviction but would not satisfy the definition—then any conviction under
9 In Malaske, the Court was explicit that “the crime of furnishing alcohol to a minor is a felony that is ‘potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide.’” Malaske, 89 P.3d at 1117 (quoting Wade, 581 P.2d at 916) (emphasis added).
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that law cannot count as [a “crime of violence”].” (quoting Descamps v. United States, 570
U.S. 254, 261 (2013)) (cleaned up)).
Here, Oklahoma’s second-degree murder statute criminalizes more conduct than is
encompassed by our federal definition of generic “murder.” Our circuit’s definition of
generic “murder” restricts predicate felonies to dangerous felonies, Marrero, 743 F.3d at
401 (“[M]urder is generically defined as causing the death of another person either
intentionally, during the commission of a dangerous felony . . . .” (emphasis added)). The
Oklahoma Court of Criminal Appeals has interpreted Oklahoma’s second-degree murder
statute, however, to criminalize homicide when perpetrated during the commission of
potentially (but not necessarily actually) dangerous felonies. Wade, 581 P.2d at 916; In re
Adoption, 287 P.3d at 1009. In other words, felonies that could not serve as predicates
under our circuit’s definition of generic “murder” could serve as predicates under
Oklahoma law. “This now becomes a paradigmatic example of a categorical mismatch.”
Venjohn, 104 F.4th at 186. Oklahoma second-degree murder criminalizes a broader swath
of conduct than our federal generic “murder” does. Because this is so, Oklahoma second-
degree murder is a categorical mismatch with the definition of “murder” in U.S.S.G.
§ 4B1.2(a)(2) and therefore cannot qualify as a “crime of violence” under that Guideline.
III.
Because Oklahoma second-degree murder is a categorial mismatch with our
circuit’s definition of generic murder, it was error for the district court to construe Mr.
Manzano’s conviction as a “crime of violence” under U.S.S.G. § 4B1.2(a)(2) and apply its
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correspondingly higher base offense level. We therefore reverse and remand for
resentencing.