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United States v. Kosmes

United States Court of Appeals, Eighth Circuit

July 8, 2015

United States of America, Plaintiff - Appellee
v.
Dominic Kosmes, also known as Joe Remikio, Defendant - Appellant

Submitted March 9, 2015.

Appeal from United States District Court for the Western District of Arkansas - Fayetteville.

For United States of America, Plaintiff - Appellee: Brandon T. Carter, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Fort Smith, AR.

Dominic Kosmes, also known as: Joe Remikio, Defendant - Appellant, Pro se, Pecos, TX.

For Dominic Kosmes, also known as: Joe Remikio, Defendant - Appellant: John B. Schisler, Assistant Federal Public Defender, Federal Public Defender's Office, Fayetteville, AR.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

OPINION

MELLOY, Circuit Judge.

Dominic Kosmes, a citizen of the Federated States of Micronesia, pleaded guilty to reentering the United States illegally in violation of 8 U.S.C. § 1326(a). At sentencing, the district court imposed a sixteen-level enhancement under United States Sentencing Guideline § 2L1.2(b)(1)(A)(ii) because Kosmes previously pleaded guilty to a crime of violence. Because the district court[1] correctly concluded Kosmes previously was convicted of a crime of violence, we affirm.

I

On July 9, 1997, Kosmes pleaded guilty to manslaughter in violation of 9 Guam Code Ann. § 16.50(a)(1) in the United States territory of Guam. He was sentenced to ten years' imprisonment. After his release, Kosmes was deported to the Federated States of Micronesia.

In February 2014, Homeland Security discovered Kosmes in Arkansas. He was arrested for illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a). In March 2014, a grand jury issued a single-count indictment against Kosmes. He eventually entered a guilty plea, which the district court accepted in August 2014.

Before sentencing, Kosmes filed five objections to the presentence investigation report (PSR). Only one objection, however, needed to be resolved by the district court at the sentencing hearing.[2] Kosmes argued that the Eighth Circuit " has left open the question of what mental state attaches to generic manslaughter for purposes of determining whether it should qualify as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii)." And, according to Kosmes, because his manslaughter conviction in Guam required only a reckless mental state, rather than an intentional one, the PSR's sixteen-level enhancement for the manslaughter conviction was improper. At the sentencing hearing, Kosmes articulated the fighting issues: " First, is reckless[ness] the appropriate mental state for generic manslaughter; and if that is so, is reckless manslaughter a crime of violence that would trigger the 16-level increase."

After the district court noted the " precise issue" has not been resolved by the Eighth Circuit, it held that the manslaughter conviction with a reckless mental state qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court concluded that, " relying heavily upon the Eighth Circuit's opinion in [United States v. Roblero-Ramirez,716 F.3d 1122 (8th Cir. 2013)] and in particular its collection of cases from other circuit courts of appeal, the [district court] is persuaded that a reckless mens rea--or I should say a recklessness mens rea in the context of a criminal homicide case--is sufficient to establish a crime of violence under Section 2L1.2." After applying a sixteen-level enhancement for the manslaughter conviction, the district court calculated an advisory guidelines range of 46 to 57 ...


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