U.S. v. Hernandez–galvan, 09–40872.

• Decision Date: 31 January 2011
• Docket Number: No. 09–40872.,09–40872.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jose Guadalupe HERNANDEZ–GALVAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

632 F.3d 192

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Guadalupe HERNANDEZ–GALVAN, Defendant–Appellant.

No. 09–40872.

United States Court of Appeals, Fifth Circuit.

Jan. 31, 2011.

Lauretta Drake Bahry (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.Kimberly S. Keller (argued), (Court–Appointed), Keller Law Firm, Boerne, TX, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Texas.Before DeMOSS, BENAVIDES and ELROD, Circuit Judges.JENNIFER WALKER ELROD, Circuit Judge:

Jose Guadalupe Hernandez–Galvan appeals his judgment of conviction and sentence for illegal reentry in violation of 18 U.S.C. § 1326. Specifically, he challenges the district court's conclusion that his prior North Carolina conviction for attempted common-law robbery is for a “crime of violence,” requiring a 16–level increase under the Sentencing Guidelines. Because Hernandez raises only a theoretical possibility—rather than a realistic probability—that the North Carolina offense would criminalize conduct falling outside the generic, contemporary definition of attempted robbery, we AFFIRM.

I.

Hernandez was charged in a multi-count indictment with conspiracy to possess with intent to distribute marijuana, aiding and abetting and possession with intent to distribute marijuana, and having been found unlawfully present in this country following a prior deportation, which was subsequent to an aggravated felony conviction. A jury acquitted Hernandez of the two drug offenses. Hernandez then pleaded guilty to the illegal reentry count without the benefit of a plea agreement.

In preparation for Hernandez's sentencing, the probation officer compiled a Presentence Investigation Report. The report assigned Hernandez a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added pursuant to § 2L1.2(b)(1)(A)(ii) based on Hernandez's prior North Carolina conviction for attempted common-law robbery. After receiving a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility, Hernandez had a total offense level of 21. Hernandez scored a total of nine criminal history points and was placed in Criminal History Category IV. Thus, the report concluded that Hernandez's advisory sentencing range under the Guidelines should be 57 to 71 months. U.S.S.G. Ch. 5, Pt. A.

Hernandez objected to the report, in pertinent part, on the grounds that the 16–level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) was not warranted because his North Carolina conviction for attempted common-law robbery did not meet the Guidelines's definition of a “crime of violence.” The district court overruled Hernandez's objection. In addition, the district court found by a preponderance of the evidence that Hernandez had committed the offenses that he had been acquitted of at trial. The district court sentenced Hernandez to an above-Guidelines sentence of 84 months of imprisonment, as well as a three-year term of supervised release. This appeal followed.

II.

In reviewing the reasonableness of a defendant's sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The district court's “interpretation or application of the Sentencing Guidelines” is reviewed de novo, while its factual findings are reviewed for clear error. Id. Thus, this court considers de novo whether a defendant's prior conviction qualifies as a “crime of violence” within the meaning of the Guidelines. United States v. Sanchez–Ruedas, 452 F.3d 409, 412 (5th Cir.2006).

A defendant convicted of illegal reentry who also has a prior conviction for a “crime of violence” receives a 16–level upward adjustment under the Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined in the application notes:

“Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

Id. § 2L1.2 cmt. n.1(B)(iii). In other words, an offense qualifies as a crime of violence if it falls within an enumerated category or within the physical-force provision. Inchoate variants of these offenses also qualify: “Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” Id. § 2L1.2 cmt. n.5.

To determine whether an offense falls within an enumerated category, this court employs a “common sense approach” based on the “generic, contemporary meaning” of the terms used in the Guidelines. United States v. Moreno–Florean, 542 F.3d 445, 449 (5th Cir.2008) (internal quotation marks omitted). As a guide to contemporary meaning, the court consults such sources as “the Model Penal Code, Professors LaFave's and Scott's treatises, modern state codes, and dictionaries.” United States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir.2006). If the prior offense of conviction sweeps more broadly than this generic definition, that conviction does not fall within the enumerated category, regardless of the label a state attaches to the underlying offense. See Moreno–Florean, 542 F.3d at 449. The mere theoretical possibility that the two definitions might lead to different outcomes is insufficient, however:

[I]n our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

To determine whether an offense falls within the physical-force provision, the court employs a more “formalistic, element-by-element approach.” United States v. Carbajal–Diaz, 508 F.3d 804, 808 (5th Cir.2007). This analysis focuses on the “elements of the offense, rather than the facts underlying the conviction.” Moreno–Florean, 542 F.3d at 449.

Under either approach, however, if the statute defining the offense of conviction “contains a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction.” Id. “These records are generally limited to the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented.” United States v. Murillo–Lopez, 444 F.3d 337, 340 (5th Cir.2006) (internal quotation marks omitted).

III.

As Hernandez concedes, this court has already decided that common-law robbery under North Carolina law qualifies as a “crime of violence” under the enumerated category of robbery.¹ Even so, he argues that attempted common-law robbery does not qualify because North Carolina's courts have interpreted attempt liability more broadly than its generic, contemporary meaning. The government counters that any difference is merely semantic and that, in practice, North Carolina applies their attempt standard in conformity with the modern approach. This court confronted a similar question in United States v. Ellis,² 564 F.3d 370, 378 (5th Cir.2009), but declined to answer it on plain-error review. In order to resolve this question, we must first determine the generic, contemporary meaning of attempt, and then compare it with North Carolina's definition of attempt.

A.

To avoid punishing bad thoughts, attempt liability has long required that the defendant have taken “some act ... towards carrying out the [criminal] intent.” United States v. Resendiz–Ponce, 549 U.S. 102, 106, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). “Precisely what kind of act is required,” however, is not easily determined from examining “the language which has traditionally been used by courts and legislatures.” 2 Wayne R. LaFave, Substantive Criminal Law § 11.4(a), at 218 (2d ed.2003). The traditional phrases offer little guidance as to where the line is to be drawn between attempt and mere criminal intent: “a step toward the commission of the crime”; “an act in part execution of the intent”; “a direct movement toward the commission of the offense”; “the commencement of the consummation”; or “some appreciable fragment of the crime.” Id. § 11.4(a), at 219 (collecting cases). The modern trend is a shift toward the “substantial step” test from the Model Penal Code, which is now the majority view among the states and federal courts, including the Fifth Circuit. Id. § 11.4(e), at 226; see also Sui v. Immigration & Naturalization Serv., 250 F.3d 105, 116 (2d Cir.2001) (noting that the Model Penal Code test is “the most commonly used ‘attempt’ definition today”). This “substantial step” test thus represents the generic, contemporary act requirement for attempt liability.

The Model Penal Code's “substantial step” approach asks whether a person “purposely does or omits to do anything that, under the circumstances as he...