DUI-Manslaughter is an Aggravated Felony. Santana-  Garcia 6th cir opinion

DUI-Manslaughter is an Aggravated Felony. Santana-  Garcia 6th cir opinion. This case resulted in the court holding that a conviction for DUI/Manslaughter was an aggravated felony. This guy had a DUI homicide, was deported and re-entered illegally, and then was caught drunk driving again. Very hard to defend somebody like this who shows no remorse and puts US Citizens in danger, in my opinion.

United States Court of Appeals, Sixth Circuit.

UNITED STATES OF AMERICA Plaintiff-Appellee,
v.
Ismael SANTANA-GARCIA Defendant-Appellant.

No. 98-2234.
April 18, 2000.

On Appeal from the United States District Court for the Western District of Michigan.

Before BOGGS and COLE, Circuit Judges, and ZATKOFF,^[FN] District Judge.

FN The Honorable Lawrence P. Zatkoff, United States Chief District Judge for the Eastern District of Michigan, sitting by designation.

ZATKOFF, Chief District Judge.

Ismael Santana-Garcia, a federal prisoner, appeals his sentence pursuant to 28 U.S.C. § 1291 (1993). Santana-Garcia was sentenced to ninety-two months imprisonment to be followed by thirty-six months of supervised release and a fine of $1500.00 after pleading guilty to reentry by a deported alien contrary to 8 U.S.C. § 1326 (1999). For the reasons stated below, we affirm Santana-Garcia’s sentence.

I.

On August 11, 1994, while in the State of Indiana, defendant was involved in an automobile collision that resulted in the death of an elderly man. Defendant was operating the automobile with a blood alcohol level of .284 percent. On December 20, 1994, he was sentenced to six years incarceration, with two years suspended by an Indiana state court judge. Defendant was incarcerated at the Indiana State Farm in Greencastle from January 3, 1995 until a September 17, 1996. Upon defendant’s release from prison, deportation proceedings were initiated and he was deported by the INS on September 30, 1996. In October 1996, defendant illegally re-entered the United States and returned to Indiana.

On March 3, 1998, defendant was arrested by the Niles, Michigan Police Department and charged with operating a motor vehicle while under the influence of intoxicating liquor-second offense. It was later determined by the Niles Police Department that defendant was illegally present in this country. On June 1, 1998, a Complaint and Arrest Warrant were filed charging defendant with reentry by a deported alien contrary to 8 U.S.C. § 1326 (1999). On June 2, 1998, defendant was arraigned before a magistrate judge and was ordered detained pending a preliminary examination and detention hearing. On June 4, 1998, defendant waived the preliminary examination and detention hearing and was ordered held pending trial. On June 10, 1998, a one-count indictment was filed charging defendant with reentry by a deported alien contrary to 8 U.S.C. § 1326 (1999).

On July 7, 1998, defendant was arraigned on the indictment and pled guilty before a magistrate judge. On October 28, 1998, defendant appeared before the district judge, who accepted defendant’s plea and held a sentencing hearing. Pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (1998), the district court enhanced defendant’s offense level by sixteen levels because defendant had been deported after a conviction for an aggravated felony. The district court reasoned that:

Under section 2L1.2 of the guidelines, “aggravated felonies” include crimes listed under  Title 8, United States Code, section 1101(a)(43). Since felony crimes of violence, as listed under 1101(a)(43) and [sic] since the Farnsworth Court^[FN1] determined that negligent manslaughter caused by drunken driving was a felony crime of violence, the Court determines that the defendant … has committed an aggravated felony and should receive the enhancement.

FN1. United States v. Farnsworth, 92 F.3d 1001 (10 th Cir.1996)(finding that prior conviction for vehicular manslaughter was a “crime of violence” for purposes of enhancement under U.S.S.G. § 2K2.1).

JA at 67-68 (footnote added). Thus, the district court found that operating a motor vehicle while intoxicated that resulted in the death of another person was an aggravated felony.

Next, the district court declined to grant defendant a reduction for acceptance of responsibility because it determined that defendant had not demonstrated an affirmative acceptance of responsibility for his conduct. Therefore, the district court sentenced defendant to ninety-two months imprisonment to be followed by thirty-six months of supervised release and a fine of $1500.00.

II.

There are two issues presented on appeal before the Court. First, whether the District Court erred in determining that defendant’s prior conviction for operating a motor vehicle while intoxicated resulting in the death of another person contrary to Indiana law was an aggravated felony under U.S.S.G. § 2L1.2. Second, whether the District Court erred when it denied defendant a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a).

This Court reviews a district court’s factual findings in the application of the Sentencing Guidelines for clear error. See United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991). The application of particular provisions of the Sentencing Guidelines to the facts as determined by the district court is a legal question and is reviewed de novo. See United States v. Sanchez, 928 F.2d 1450, 1458 (6 th Cir.1991).

First, defendant argues that operating a motor vehicle while intoxicated resulting in the death of another person is not an aggravated felony. U.S.S.G. § 2L1.2(b)(1)(A) provides that when sentencing a defendant who was previously deported after a criminal conviction, the district court must increase the base offense level by sixteen levels if the prior conviction was an aggravated felony. Application note one of § 2L1.2 directs the sentencing court to 8 U.S.C. § 1101(43) (1999) for the definition of aggravated felony. See U.S.S.G. § 2L1.2, comment (n.1). Section 1101(43)(F) defines the term “aggravated felony” as “a crime of violence (as defined in[18 U.S.C. § 16] ) … for which the term of imprisonment is at least one year.” Title 18 defines “a crime of violence” as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16 (West Supp.1999).

The 1994 Indiana statute defendant violated provides that a person who causes the death of another person when operating a motor vehicle while intoxicated commits a Class C felony.^[FN2] Ind.Code Ann. § 9-30-5-5(a) (West 1994). This prior conviction is both “an offense that has an element the use … of physical force against the person or property of another,” see 18 U.S.C. § 16(a), and “an offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” see 18 U.S.C. § 16(b); see also, United States v. Sanders, 97 F.3d 856 (6 th Cir.1996)(holding that the crime of involuntary manslaughter under Ohio law is a “violent felony” for purposes of 18 U.S.C. § 924(c)). Cf. United States v. Farnsworth, 92 F.3d 1001 (10 th Cir.1996)(concluding that driving under the influence of drugs or alcohol clearly was conduct that presented a serious potential risk of physical injury to another); United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), cert. denied, 116 S.Ct. 323 (1995)(holding that vehicular assault by a drunk driver is a crime of violence); United States v. Fry, 51 F.3d 543 (5 th Cir.1995)(holding that causing the death of another while driving under the influence was clearly conduct that presented a serious potential risk of physical injury to another); United States v. Payton, 28 F.3d 17 (4 th Cir.1994)(holding that previous involuntary manslaughter conviction constituted a crime of violence), cert. denied, 115 S.Ct. 452 (1994).

FN2. Additionally, Ind.Code Ann. § 35-50-1-2(12) (1998) defines a “crime of violence” to include “causing death when operating a motor vehicle.”

Thus, Santana-Garcia’s drunk driving homicide meets the definition of a “crime of violence” under 8 U.S.C. § 1101(43), and is an aggravated felony for purposes of § 2L1.2(b)(1)(A). Therefore, we affirm the district court’s enhancement of defendant’s base offense level by sixteen levels pursuant to 8 2L1.2(b)(1)(A).

Next, defendant argues that the District Court erred when it denied him a reduction for acceptance of responsibility under U.S.S.G. 8 3E1.1(a). The district court’s decision whether to grant a reduction for acceptance of responsibility is reviewed for clear error. United States v. Corrigan, 128 F.3d 330, 336 (6 th Cir.1997). “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. 8 3E1.1, comment (n.5). Generally, the district court’s conclusion that a defendant is not entitled to an adjustment for acceptance of responsibility is considered a question of fact that “normally enjoys the protection of the clearly erroneous standard, and will not be overturned unless it is without foundation.” United States v. Jeter, 191 F.3d 637, 638 (6 th Cir. 1999).

U.S.S.G. §§ 3E1.1(a) provides that “if the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” Commentary to § 3E1.1 provides:

Entry of a plea of guilty prior to the commencement of the trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § 1B1.3 … will constitute significant evidence of acceptance of responsibility for the purposes of subsection(a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. U.S.S.G. § 3E1.1, comment (n.3).

In this case, the presentence investigation report recommended declining defendant’s request for an adjustment for acceptance of responsibility. The report stated that the totality of defendant’s behavior was inconsistent with acceptance of responsibility as evidenced by the fact that defendant had entered the country illegally on three occasions and had not engaged in any post-conviction rehabilitative efforts. Additionally, the probation officer determined that defendant’s contrition was for the benefit of the court, and was not sincere.

At the sentencing hearing, the court found that defendant had not accepted responsibility when defendant admitted that he was addicted to alcohol and he was not willing to do anything to help himself. Specifically, the Judge stated:

But as I understand acceptance of responsibility to say, “It is my fault that I killed somebody a few years ago. It is my fault that I came back to the United States, even though times were hard. It is my fault that I drove a car drunk again, this time with a .17 reading, [.0]7 above the level that the state of Michigan has determined is drunk for the purposes of drunk driving, and it’s unable for him to appreciate the difficulty–the relationship between the event of coming back illegally as an alien and drinking and driving. He doesn’t see the connection. There is a connection, of course, and the connection is that it puts people of the United States in direct jeopardy of him. So, he simply hasn’t accepted responsibility.

Defendant argues that he has tried to stop his abuse of alcohol. Additionally, defendant argues that after his motion for acceptance of responsibility was denied, he did demonstrate an acceptance of responsibility by stating that he was sorry for what he had did and wished that he could go back and change things.

We find that the facts and the lengthy sentencing hearing enabled the sentencing judge to be in the best position to evaluate the defendant’s acceptance of responsibility. The district court properly found that defendant failed to comprehend the nexus between his being an illegal alien while repeatedly drinking and driving presents a serious potential risk of physical injury to other persons. This failure to understand the nexus is evidence of defendant’s failure to accept responsibility for his offense. Therefore, there being no clear error, we affirm the district court’s conclusion that defendant is not entitled to an adjustment for acceptance of responsibility.

III.

For the foregoing reasons, we AFFIRM Santana-Garcia’s sentence.

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