United States v. Martinez-Rubio ( 2023 )

Case: 22-10109 Document: 00516704491 Page: 1 Date Filed: 04/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-10109 April 7, 2023
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alfredo Martinez-Rubio,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-225-1
Before Ho, Oldham, and Douglas, Circuit Judges.
Per Curiam:*
Alfredo Martinez-Rubio pled guilty to illegally reentering the United
States after removal. The district court sentenced him to 10 years’
imprisonment and 3 years’ supervised release. Martinez-Rubio claims (1)
that the district court plainly erred by considering his 1995 murder conviction
when enhancing the statutory maximum punishment and (2) that the
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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prosecution should have alleged his murder conviction in the indictment. We
disagree.
I.
In 2021, immigration officials found Alfredo Martinez-Rubio in the
United States illegally. Because he had previously been removed from the
United States in 2017, the Government indicted Martinez-Rubio for illegal
reentry after removal in violation of 8 U.S.C. § 1326. He pled guilty.
Martinez-Rubio’s presentence report (“PSR”) identified a guidelines
range of 84 to 105 months’ imprisonment. The PSR also noted that Martinez-
Rubio had a 1995 Texas murder conviction. This prior “aggravated felony”
increased the applicable statutory maximum from 2 years to 20. See 8 U.S.C.
§ 1326(b)(2). At sentencing, the district court imposed an above-guidelines
yet below-statutory-maximum sentence of 10 years’ imprisonment and 3
years’ supervised release.
Martinez-Rubio timely appealed. Our jurisdiction is proper under 18
U.S.C. § 3742(a).
II.
Martinez-Rubio alleges two errors. He (A) argues that his 1995
murder conviction is not an “aggravated felony” under 8 U.S.C.
§ 1326(b)(2). Then he (B) contends that because his murder conviction
increased the statutory maximum, it should have been alleged in the
indictment. Both claims fail.
A.
Start with Martinez-Rubio’s challenge to the § 1326(b)(2) statutory-
maximum enhancement. Ordinarily, the maximum punishment for a § 1326
violation is 2 years’ imprisonment. Id. § 1326(a). Congress, however,
increased the maximum to 10 years when the convict has a prior felony
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conviction, id. § 1326(b)(1), and to 20 years if that felony is “aggravated,” id.
§ 1326(b)(2). The court below applied the 20-year maximum because it
considered Martinez-Rubio’s murder conviction an “aggravated felony.”
For the first time on appeal, Martinez-Rubio challenges that
determination. Under 8 U.S.C. § 1101(a)(43), an “aggravated felony” is
defined in relevant part as either an enumerated offense such as “murder”
or any other “crime of violence” for which a term of imprisonment of at least
one year was imposed. Id. § 1101(a)(43)(A), (F). And an offense is a “crime
of violence” if it “has as an element the use, attempted use, or threatened
use of physical force against the person or property of another.” 18 U.S.C.
§ 16(a); 8 U.S.C. § 1101(a)(43)(F). It might seem obvious that Martinez-
Rubio’s murder conviction constitutes a “murder” conviction under Id.§ 1101(a)(43)(A).
But in this area of law, we cannot follow obviousness and common
sense. Rather, to determine whether a prior state murder conviction
constitutes “murder” under § 1101(a)(43)(A), we generally apply the
“categorical approach.” “The categorical approach considers only the
statutory definition of the offense of conviction, rather than the underlying
facts of the actual offense, to determine whether the offense meets the
[federal] definition of [the corresponding] aggravated felony.” Rodriguez v.
Holder, 705 F.3d 207, 210 (5th Cir. 2013). And to determine the definition of
the relevant aggravated felony (here, murder), we consider the “generic,
contemporary meaning” of that offense. United States v. Adair, 16 F.4th 469,
470 (5th Cir. 2021) (quotation omitted). How? By “looking to various
sources—such as ‘the Model Penal Code, the LaFave and Scott [criminal
law] treatises, modern state codes, and dictionary definitions.’” United
States v. Hernandez-Montes, 831 F.3d 284, 288 (5th Cir. 2016) (quotation
omitted). If Texas’s murder statute proscribes conduct outside the scope of
the “generic” federal definition of murder, then the State’s offense is not
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categorically an aggravated felony under § 1101(a)(43)(A). See Moncrieffe v.
Holder, 569 U.S. 184, 190–91 (2013).
If, however, the State statute is “divisible,” we instead apply the so-
called “modified categorical approach.” See Descamps v. United States, 570
U.S. 254, 257 (2013); United States v. Rodriguez-Flores, 25 F.4th 385, 388 (5th
Cir. 2022). Statutes are “divisible” when they “list elements in the
alternative, and thereby define multiple crimes.” Mathis v. United States, 579
U.S. 500, 505 (2016). By contrast, “indivisible” statutes “enumerate[]
various factual means of committing a single element”—thus defining only a
single crime with multiple permutations. Id. at 506. When a defendant is
convicted under a “divisible” statute, we apply the “modified categorical
approach” by “look[ing] to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, [the] defendant was convicted of.” Id. at
505–06. We “then compare that crime . . . with the relevant generic offense.”
Id. at 506. And just as with the categorical approach, the ultimate inquiry is
whether the State crime of conviction proscribes conduct outside the ambit
of the generic offense. If so, then it is not an “aggravated felony.”
Martinez-Rubio claims his murder conviction is not a murder
conviction under § 1101(a)(43)(A), so the district court erred by subjecting
him to a 20-year maximum. Even if Martinez-Rubio in fact committed
intentional murder when he shot his sister-in-law in the head and chest,
Martinez-Rubio nevertheless claims the Texas murder statute is indivisible—
thus requiring this court to ignore the manner Martinez-Rubio killed his
sister-in-law and instead view the statute as a whole. † Martinez-Rubio further
†
At the time Martinez-Rubio killed his sister-in-law, the Texas Penal Code
provided that a person commits “murder” if he:
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argues that the felony-murder component of the Texas statute
(§ 19.02(a)(3)) sweeps more broadly than his proposed definition of generic
murder and lacks “as an element the use, attempted use, or threatened use
of physical force against the person or property of another.” 18 U.S.C.
§ 16(a); 8 U.S.C. § 1101(a)(43)(F).
Even assuming Martinez-Rubio is correct on the merits of his claim,
he still cannot satisfy the relevant standard of review. “Because [Martinez-
Rubio] did not object to the sentencing enhancement in the district court, we
review for plain error.” See United States v. Reyes-Ochoa, 861 F.3d 582, 585
(5th Cir. 2017). So to prevail, Martinez-Rubio must prove (1) that the district
court erred, (2) that the error was “clear or obvious,” and (3) that the error
affected his “substantial rights.” Puckett v. United States, 556 U.S. 129, 135
(2009) (“[I]f the above three prongs are satisfied, the court of appeals has the
discretion to remedy the error.”). And a district court’s error is only “clear or
obvious” when the relevant legal question is beyond “reasonable dispute.”
Ibid. Thus, we very rarely find plain error unless “controlling circuit or
Supreme Court precedent has reached the issue in question”—and resolved
it in defendant’s favor. United States v. Scott, 821 F.3d 562, 570–71 (5th Cir.
2016) (quoting United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015));
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter,
and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt,
he commits or attempts to commit an act clearly dangerous to
human life that causes the death of an individual.
Tex. Penal Code Ann. § 19.02(a) (West 1974). The current Texas Penal
Code is phrased identically, but § 19.02(a) is now codified at § 19.02(b).
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accord United States v. Ceron, 775 F.3d 222, 226 (5th Cir. 2014) (“When the
case law is unsettled, we cannot say that any error is clear or obvious.”);
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (“Even where
[appellant’s] argument requires only extending authoritative precedent, the
failure of the district court to do so cannot be plain error.” (quotation
omitted)).
Martinez-Rubio cannot clear that hurdle because his claim turns on a
variety of questions that the Fifth Circuit and the Supreme Court have yet to
resolve, including: (1) whether the Texas murder statute is “divisible” or
“indivisible”; (2) whether, under the categorical and/or modified categorical
approach, the Texas murder statute falls within the “generic” federal
definition of murder; (3) what the “generic” federal definition of murder
even is; and (4) which prongs of the Texas murder statute cover conduct that
meets 18 U.S.C. § 16(a)’s articulation of “crime of violence.”
Accordingly, even if the district court erred—and Martinez-Rubio is
right about the answers to all four above-mentioned and unresolved
questions—there is no way any such error was “plain.” After all, “an error
is considered plain, or obvious, only if the error is clear under existing law.”
United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007) (emphasis added).
And as we have held in various recent opinions concerning many of the same
questions presented in this appeal, the governing law in this domain is not
clear. See, e.g., United States v. Quinonez-Saa, 741 F. App’x 973, 976 (5th Cir.
2018) (per curiam) (“Given the lack of controlling precedent, we conclude
that any error by the district court was not plain because . . . the relevant
sources indicate that whether Texas felony murder comports with the
generic definition is subject to reasonable dispute.”); United States v.
Hernandez-Morales, 681 F. App’x 362, 366 (5th Cir. 2017) (per curiam)
(“[W]e have never before considered whether the Illinois first degree murder
statute is broader than the enumerated offense of murder, nor have we even
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adopted a definition of generic murder. . . . In the absence of any authority on
point, we therefore decline to conclude that any error committed by the
district court was plain.”); United States v. Rubio-Sorto, 760 F. App’x 258,
259 (5th Cir. 2019) (per curiam) (same).
B.
Martinez-Rubio’s second challenge is also deficient. In his sole
contemporaneous objection to the PSR, Martinez-Rubio argued that his prior
murder conviction should have been alleged in the indictment. This
contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998). Martinez-Rubio reasserts it merely to preserve it.
AFFIRMED.
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