United States v. Hernandez-Montes, No. 15-40544

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JERRY E. SMITH, Circuit Judge
• Citation: 831 F.3d 284
• Parties: United States of America, Plaintiff–Appellee, v. Victor Eduardo Hernandez–Montes, Defendant–Appellant.
• Docket Number: No. 15-40544
• Decision Date: 25 July 2016

831 F.3d 284

United States of America, Plaintiff–Appellee,
v.
Victor Eduardo Hernandez–Montes, Defendant–Appellant.

No. 15-40544

United States Court of Appeals, Fifth Circuit.

Filed July 25, 2016

Paula Camille Offenhauser, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, Laura Fletcher Leavitt, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

Before SMITH, BARKSDALE, and COSTA, Circuit Judges.

831 F.3d 287

JERRY E. SMITH, Circuit Judge:

Victor Hernandez-Montes contends his Florida conviction of attempted second-degree murder cannot be the basis of a sixteen-level crime-of-violence (“COV”) sentence enhancement. We agree and therefore vacate and remand for resentencing.

I.

In 1995, a friend drove Hernandez-Montes to a residence where Robert Olivares, Juan Gomez, and Rommel Villarreal were present. Hernandez-Montes remained in the car, exchanged words with the three, and opened fire on them. A Florida grand jury indicted Hernandez-Montes for attempted second-degree murder:

VICTOR EDUARDO HERNANDEZ ... did unlawfully and feloniously attempt to commit a felony, to wit: Murder in the Second Degree, upon [[Rommel Villareal (Count 3) ] [Robert Olivares (Count 4) ] [Juan Gomez (Count 5) ]], and in furtherance thereof, the defendant did by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, attempt to kill [Rommel Villareal] [Robert Olivares] [Juan Gomez], a human being, by shooting [Rommel Villareal] [Robert Olivares] [Juan Gomez]....

Florida convicted Hernandez-Montes of “Attempted Second Degree Murder With A Weapon” in violation of Florida Statutes §§ 782.04(2) (defining second-degree murder),¹ 777.04(1) (defining attempt),² and 775.087 (establishing sentence).³

In 2014, Hernandez-Montes pleaded guilty to illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b).⁴ The Presentence Investigation Report (“PSR”) recommended 70–87 months' imprisonment based on a total offense level of 21 and Criminal History Category V.⁵ Violations

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of § 1326 confer a base offense level of 8.⁶ That offense level increases, however, if the defendant has been deported after committing a COV.⁷ The PSR applied a sixteen-level enhancement for the 1996 conviction of attempted second-degree murder and a three-point reduction for acceptance of responsibility.⁸

The district court, over Hernandez-Montes's written and oral objections that the Florida attempt statute was too broad to be the basis of a COV enhancement, adopted the PSR's recommendations. The government recommended a sentence at the lower end of the 70–87-month range, but Hernandez-Montes requested a downward variance and a sentence of 37 months. The court granted the variance but sentenced Hernandez-Montes to 48 months, reasoning that “a sentence within the guideline would just be greater than necessary to impose an appropriate sentence” and that the sentence was “sufficient but not greater than necessary to impose an appropriate sentence.”

II.

We analyze COV enhancements under a familiar test called the “Crime of Violence Framework.” United States v. Hernandez-Rodriguez , 788 F.3d 193, 195 (5th Cir. 2015). Under the COV framework and the guidelines, a conviction may be a COV in one of two ways: first, if it qualifies as any one of a number of “enumerated offenses,” including murder, see U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)⁹ ; second, if it is an offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another,” see id.¹⁰ The guidelines also treat a conviction of an attempt to commit a COV as a COV itself.¹¹

Within the COV framework, we assess whether a conviction is a COV under either prong using slightly different methodologies:

Our two methodologies are both iterations of the elements-based categorical approach set forth in Taylor^{[12 ]}and its progeny, with each looking to different sources of guidance. Under the “enumerated offense” prong, we conduct a “common-sense” categorical approach, looking to various sources—such as “the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary definitions”—to define each crime by its “generic, contemporary meaning.” Under the “use of force” prong, we analyze whether the offense has as an element the use, attempted use, or threatened use of physical force.... Under both approaches, we

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determine the elements to which a defendant pleaded guilty by analyzing the statutory definition of the offense, not the defendant's underlying conduct.

United States v. Herrera – Alvarez , 753 F.3d 132, 137–38 (5th Cir.2014) (citations omitted).

Under the enumerated-offense prong, “we compare the elements of the statute forming the basis of the defendant's conviction with the elements of the generic crime....” United States v. Pascacio – Rodriguez , 749 F.3d 353, 358 (5th Cir.2014) (internal quotations omitted).¹³ If the elements of the conviction are narrower than or coterminous with the generic meaning, the COV enhancement is valid. Hernandez – Rodriguez , 788 F.3d at 195–96.

When the elements of the conviction are facially broader than the generic meaning, the defendant still must show a “realistic probability”—rather than “a mere theoretical possibility”—that his “statute of conviction would in fact punish conduct outside of the offense's ordinary meaning.” United States v. Garcia – Figueroa , 753 F.3d 179, 187 (5th Cir.2014) (quotations omitted). To establish a “realistic probability,” the defendant “must at least point to his own case or other cases in which the state courts in fact did apply the statute” to conduct not encompassed by the generic meaning. Id. (quotations omitted). If he shows that the statute of conviction in fact applies to conduct broader than the generic meaning, then “the conviction is not a [COV] as a matter of law.” Hernandez – Rodriguez , 788 F.3d at 196 (quotations omitted).

A.

There is a threshold issue regarding the standard of review, because there is some ambiguity as to how to characterize Hernandez-Montes's prior conviction. Hernandez-Montes frames the issue on appeal around his actual Florida conviction for attempted second-degree murder: “Mr. Hernandez-Montes challenges the district court's application of the 16-level ‘[COV]’ enhancement on the basis of his 1996 Florida convictions for attempted second-degree murder , which did not require proof that he acted with the specific intent to kill.” (Emphasis added.) He claims that that conviction is broader than its generic counterpart and thus cannot serve as the basis for a COV enhancement.

We usually review de novo such a claim that the district court committed procedural error by mischaracterizing a past conviction as a COV. See United States v. Rodriguez , 711 F.3d 541, 547–48 (5th Cir.2013) (en banc). But we review only for plain error “[w]hen a defendant objects to his sentence on grounds different from those raised on appeal.” United States v. Garcia – Perez , 779 F.3d 278, 281 (5th Cir. 2015). The government seeks plain-error review because Hernandez-Montes characterized his objection differently before the district court, where he claimed Florida's “attempt” was broader than generic attempt.¹⁴ He contends de novo review is appropriate because his objections alerted the district court to the nature of his arguments. His objections

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could have been clearer, but we agree he preserved error.

To preserve the issue for appeal, “the basis for objection presented below [must give] the district court the opportunity to address the gravamen of the argument presented on appeal.” Id. at 281–82 (quotations omitted). The objection must, in other words, “be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” Id. at 282 (quoting United States v. Neal , 578 F.3d 270, 272 (5th Cir.2009) ). Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. United States v. Maldonado , 42 F.3d 906, 912 (5th Cir.1995).

Hernandez-Montes lodged both written and oral objections to the COV enhancement. In his written objections, he focused on the breadth of Florida's attempt statute, claiming it was “too broad to constitute [generic] ‘attempt’ under U.S.S.G. § 2L1.2(b)(1).” He pressed this point, however, by reference to the underlying offense of second-degree murder. He also alerted the district court to his contention on appeal (that Florida's attempt statute interacts with Florida's second-degree murder statute in a way that precludes it from serving as the basis of a COV enhancement) by citing to and discussing Justice Harding's dissent in Brown v. State , 790 So.2d 389, 394 (Fla.2000).

The majority in ...