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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60319
Summary Calendar
VICTOR GARCIA LIZAMA,
Petitioner,
VERSUS
UNITED STATES PAROLE COMMISSION,
Respondent.
Appeal from the Determination of the
United States Parole Commission
April 2, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Petitioner Victor Lizama is a federal prisoner who was
transferred to the United States from Mexico to continue serving a
Mexican sentence for "Simple Homicide." The United States Parole
Commission ("Commission") determined a release date for petitioner
pursuant to 18 U.S.C. § 4106A(b)(1)(A). Petitioner appeals the
Commission's determination that the federal offense most analogous
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to Lizama's Mexican crime was second-degree murder. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Lizama, a United States citizen, killed Jose Martin Rios
Hernandez in La Paz, Baja California, Mexico, on November 28, 1996.
According to the Mexican court documents, available to the
Commission in English translation, the following facts were proven
at trial:
...the autopsy, [wherein] the injuries to the body are
described, stating that JOSE MARTIN RIOS HERNANDEZ, died
due to the described injuries and the autopsy which
determines the cause of death was CRANIAL TRAUMATISM. It
is also determined that said injury was produced by a
contusive object or agent; . . . . With said documents,
it was undoubtably [sic] proven that on November 28,
1996, at approximately ten thirty hours, there was a
problem between C. VERONICA SANCHEZ MOLINA and the
defendant/appellant. Therefore the latter began chasing
her in order to harm her; she asked for help and the
deceased JOSE MARTIN RIOS HERNANDEZ came and who after
telling VICTOR LIZAMA to leave VERONICA alone because she
`had a belly' [was pregnant], hit him over the head with
a `ballena' bottle, causing him to bleed and began
running in order to separate himself [Hernandez] from the
defendant but was unable to. VICTOR LIZAMA caught up
with him and beat him, causing injuries which finally led
to his death, therefore the HOMICIDE was due to the
assault he suffered by the deceased. When he [Lizama]
beat the deceased to death, the latter was intoxicated,
which implies he is a danger to society and because of
this, is even more dangerous, justifying then, that the
sentencing judged the same as aggravated due to material
and moral implications of it, considering VICTOR LIZAMA
as an adult criminal, who used his own hands to commit
the crime of SIMPLE INTENTIONAL HOMICIDE.
Lizama was arrested at the scene and detained by Mexican
authorities. He was convicted by a Mexican court on the charge of
Simple Homicide on May 26, 1998 and sentenced to 14 years'
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imprisonment. Lizama transferred to the United States to serve his
sentence, pursuant to a prisoner-exchange treaty between the United
States and Mexico. See Treaty on Execution of Penal Sentences,
Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399. The Commission
determined a release date for Lizama, pursuant to 18 U.S.C. §
4106A (2000), based on the sentencing guidelines "of a similar
offense." § 4106A(b)(1)(A). The U.S. probation officer who
prepared Lizama's post-sentence report found that the most
analogous federal offense was voluntary manslaughter, 18 U.S.C. §
1112(a). After holding a hearing, a Commission examiner adopted
the probation officer's recommendation, and recommended that Lizama
be released after 51 months.
A Commission case reviewer did not agree with the voluntary
manslaughter determination, and a rehearing was ordered. A
different examiner initially agreed with the voluntary manslaughter
determination, but later changed her mind and recommended that the
most analogous offense was second-degree murder. 18 U.S.C. §
1111(a). The Commission adopted this recommendation, determined
that the guideline range was 168-210 months, and sentenced Lizama
to serve 168 months in prison, followed by 60 months or until the
full term date of his foreign sentence, whichever is earlier, on
supervised release.
DISCUSSION
Lizama argues on appeal that voluntary manslaughter is the
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federal offense most analogous to his Mexican crime rather than
second-degree murder as the Commission found.
A. Standard of Review
We decide an appeal of the Commissions's determination, in
accordance with 18 U.S.C. § 3742, as though the determination
appealed had been a sentence imposed by a United States district
court. 18 U.S.C. § 4106A(b)(2)(B). Accordingly, we review the
Commission's legal determinations de novo. Molano-Garza v. U.S.
Parole Commission, 965 F.2d 20, 23 (5th Cir. 1992). When reviewing
the Commission's factual findings, we apply the clearly erroneous
standard. Id.
B. Commission's Similar Offense Determination
In determining a release date for a transfer offender, the
Commission considers the recommendations of the U.S. Probation
Service and any documents from the transferring country. 18 U.S.C.
§ 4106A(b)(1)(B). The regulations also provide that "[t]he
Commission shall take into account the offense definition under
foreign law, the length of the sentence permitted by that law, and
the underlying circumstances of the offense behavior." 28 C.F.R. §
2.68(g)(1999).
Homicide under Article 123 of the Baja Penal Code states,
"Whomever deprives another of his life commits the crime of
homicide." The Baja statute establishes three ranges of punishment
for homicide, depending on the defendant's mens rea and the
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circumstances surrounding the crime: Willful Homicide ("Homicidio
Calificado") 16-30 years' imprisonment; Simple Homicide
("Homicidio Simple") - 8-15 years' imprisonment; and Homicide in an
Affray ("Homicidio en Rina") - 4-10 years' imprisonment. Article
147 defines the most serious homicide, Willful Homicide, as
follows: "It is understood that assault and homicide are willful
when they are committed with premeditation, with superior
advantage, with malice1 or treachery." Article 146 defines affray
for purposes of the least serious homicide provision as follows: "a
physical, not verbal dispute between two or more persons, with the
purpose of causing one another mutual harm." Simple Homicide
appears to be the default statute applied if the crime does not
fall into either the more or less serious provisions.
In sentencing Lizama, the Mexican court rejected both the
prosecutor's claim that Lizama had committed willful homicide and
Lizama's claims that he was responsible only for Homicide in an
Affray and that he acted in self-defense. The court found that,
Lizama's "behavior can in no way be judged defensive." The court
also declined to find that Lizama had committed Homicide in an
Affray, because "[t]here was then no intention between the parties
1The term "malice" has a different meaning under the Baja Penal
Code, than in United States jurisprudence. Kleeman v. U.S. Parole
Comm'n, 125 F.3d 725, 731 n.7 (9th Cir. 1997). A discussion of
malice by the Mexican courts is not dispositive of whether Lizama
acted with the requisite malice to classify his crime as second
degree murder in the United States. Id.
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to cause each other harm, so there is never the typical behavior of
a fight." The Mexican court therefore concluded that Lizama was
guilty of Simple Homicide and sentenced him to 15 years'
imprisonment.
The Commission found that the United States federal offense
most analogous to Lizama's Mexican crime of Simple Homicide was
second-degree murder, in violation of 18 U.S.C. § 1111(a):
Murder is the unlawful killing of a human being with
malice aforethought. Every murder perpetrated by poison,
lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the
perpetration of , or attempt to perpetrate, any arson,
rape, burglary, or robbery; or perpetrated from a
premeditated design unlawfully and maliciously to effect
the death of any human being other than him who is
killed, is murder in the first degree.
Any other murder is murder in the second degree.
Lizama argues that the Commission erred because voluntary
manslaughter is more analogous than second degree murder to Simple
Homicide under the circumstances of his case. Voluntary
manslaughter is defined in 18 U.S.C. § 1112(a) as:
the unlawful killing of a human being without malice . .
. [u]pon a sudden quarrel or heat of passion.
Specifically, Lizama contends that he killed in a "heat of
passion" induced by Hernandez's blow to the back of his head, which
negates the existence of malice, an essential element of second
degree murder. A defendant who kills in a heat of passion in
response to adequate provocation is guilty only of voluntary
manslaughter. United States v. Browner, 889 F.2d 549, 552 (5th
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Cir. 1989). A "heat of passion" is a passion of fear or rage in
which the defendant loses his normal self-control as a result of
circumstances that would provoke such a passion in an ordinary
person, but which did not justify the use of deadly force. Id.
However, a blow will not reduce a homicide to voluntary
manslaughter when the defendant "by his own prior conduct (as by
vigorously starting the fracas) was responsible for that violent
blow." WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW §
7.10(b)(1)(1986).
Lizama contends that he was not responsible for the blow he
received because he had not yet assaulted Hernandez when Hernandez
hit him on the back of the head with a large beer bottle. The
Mexican court documents belie this position, finding that Hernandez
struck Lizama "because as any citizen, he was defending a woman who
at that time was being assaulted by the sentenced defendant and
because of this, the deceased hit him . . . and [then] the deceased
ran." The Commission, giving due deference to the Mexican court's
finding, rejected Lizama's position and found that Hernandez struck
Lizama in order to defend Molina, whom Lizama was "chasing and
threatening." "The examiner does not find that [Lizama] had
adequate provocation for . . . the assault on the victim.
[Lizama's] own actions in chasing and threatening Ms. Molina caused
the victim to intercede on her behalf." Lizama's version of the
events, which would require the Commission to contradict the
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Mexican court's conclusions, were properly rejected by the
examiner.
We find no error in the factual basis of the Commission's
decision and or in the ultimate determination that second degree
murder is the crime most analogous to Simple Homicide under the
Baja penal code and the particular facts of this offense. We
therefore affirm the Commission's ruling.
AFFIRMED.

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