United States v. Victor Hernandez-Montes , 831 F.3d 284 ( 2016 )

Case: 15-40544 Document: 00513606403 Page: 1 Date Filed: 07/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40544 FILED
July 25, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
VICTOR EDUARDO HERNANDEZ-MONTES,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
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
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No. 15-40544
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 im-
minently dangerous to another, and evincing a depraved mind, regard-
less of human life, although without any premeditated design to effect
the death of any particular individual, attempt to kill [Rommel Villa-
real] [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”)
1 “The unlawful killing of a human being, when perpetrated by any act imminently
dangerous to another and evincing a depraved mind regardless of human life, although with-
out any premeditated design to effect the death of any particular individual, is murder in the
second degree and constitutes a felony of the first degree, punishable by imprisonment for a
term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.” FLA.
STAT. § 782.04(2) (2016). The current version was also in effect in 1995.
2“A person who attempts to commit an offense prohibited by law and in such attempt
does any act toward the commission of such offense, but fails in the perpetration or is inter-
cepted or prevented in the execution thereof, commits the offense of criminal attempt . . . .”
FLA. STAT. § 777.04(1) (2016). The current version was also in effect in 1995.
3 In relevant part, § 775.087 provided, “Any person who is convicted of . . . [a]ny murder
. . . or any attempt to commit the aforementioned crimes . . . and who had in his possession a
firearm . . . shall be sentenced to a minimum term of imprisonment of 3 calendar years.” FLA.
STAT. § 775.087 (1995).
4“In general. Subject to subsection (b), any alien who—(1) has been . . . deported . . .
and thereafter (2) enters, attempts to enter, or is at any time found in, the United States,
unless (A) prior to his reembarkation at a place outside the United States or his application
2
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recommended 70–87 months’ imprisonment based on a total offense level of 21
and Criminal History Category V. 5 Violations 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 enhance-
ment 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 en-
hancement, adopted the PSR’s recommendations. The government recom-
mended 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 nec-
essary to impose an appropriate sentence” and that the sentence was “suffi-
cient but not greater than necessary to impose an appropriate sentence.”
for admission from foreign contiguous territory, the Attorney General has expressly con-
sented to such alien’s reapplying for admission . . . shall be fined under Title 18, or imprisoned
not more than 2 years, or both.” 8 U.S.C. § 1326(a). Such an alien faces twenty years’ im-
prisonment if the deportation follows an “aggravated felony.” 8 U.S.C. § 1326(b)(2).
5 The criminal-history-category determination, which Hernandez-Montes does not
contest, is based on Hernandez-Montes’s convictions of being found in the United States after
a previous deportation, illegal re-entry, possession of cocaine, and attempted second-degree
murder. Those convictions yielded twelve criminal history points, yielding Criminal History
Category V.
6 See U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.2(a) (2014).
7“Apply the Greatest: If the defendant previously was deported, or unlawfully re-
mained in the United States, after . . . a conviction for a felony that is . . . a [COV,] . . . [then]
increase by 16 levels if the conviction receives criminal history points under Chapter Four . .
. .” U.S.S.G. § 2L1.2(b)(1)(A)(ii).
8 See U.S.S.G. § 3E1.1(a) and (b) (authorizing reductions for acceptance of respon-
sibility).
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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 convic-
tion 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 cate-
gorical approach set forth in Taylor[12] and its progeny, with each look-
ing 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 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) (cita-
tions omitted).
9 The “enumerated offense” prong of the COV framework.
10 The “use of force” prong of the COV framework.
11“Aiding and Abetting, Conspiracies, and Attempts. Prior convictions of offenses
counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and
attempting, to commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5.
12 Taylor v. United States, 495 U.S. 575 (1990).
4
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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]’ en-
hancement on the basis of his 1996 Florida convictions for attempted second-
All agree that in Florida, attempted second-degree murder does not qualify as a
13
COV under the use-of-force prong.
5
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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 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 objec-
tion 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
14 The government maintains that Hernandez-Montes denied the district court the
opportunity to correct the error, because his counsel mistakenly indicated that precedent
foreclosed the objection. The government points to no case, and we have discovered none, in
which a defendant’s mistaken belief that precedent forecloses his objection prevents the dis-
trict court from having the opportunity to review that objection.
6
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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 Hard-
ing’s dissent in Brown v. State, 790 So. 2d 389, 394 (Fla. 2000).
The majority in Brown affirmatively answered the question, “Does the
crime of attempted second degree murder exist in Florida?” Id. at 389–90. It
reasoned,
Although the crime of attempt generally requires proof of a specific in-
tent to commit the crime plus an overt act in furtherance of that intent,
. . . “[i]f the state is not required to show specific intent to successfully
prosecute the completed crime, it will not be required to show specific
intent to successfully prosecute an attempt to commit that crime.”
Id. (quoting State v. Brady, 745 So. 2d 954, 957 (Fla. 1999)). Though
Hernandez-Montes referred specifically to Florida’s attempt statute, a perusal
of Brown reveals that the attempt statute’s interaction with the underlying
offense was critical to dealing with Hernandez-Montes’s objection.
Moreover, as Hernandez-Montes noted in his written objections, Justice
Harding criticized Florida’s attempt definition as being out of step with the
“overwhelming majority of jurisdictions in this country.” Id. at 393–94. Justice
Harding also emphasized the interaction between the attempt statute and the
underlying offense:
In light of the fact that this State’s classification of the crime of
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attempt is contrary to the overwhelming majority of jurisdictions in this
country, I question the reasons that this Court initially relied upon to
formulate the Gentry[15] test. The Gentry court argued that the State
should not be required to prove an intent for a successful prosecution of
an attempt to commit a crime when no such degree of proof is necessary
for successful prosecution of the completed crime. However, there is a
substantial distinction between a completed crime and an attempt.
Id. Shortly thereafter, Justice Harding specifically concludes “it is illogical to
have the crime of attempted second-degree murder because it is impossible to
intend to commit an act of recklessness.” Id. at 395. Thus, a review of the
dissent upon which Hernandez-Montes explicitly relied would alert the district
court to his argument about the interaction between Florida’s attempt and
second-degree murder offenses.
Finally, Hernandez-Montes objected at the sentencing hearing. His
counsel argued,
I have the written objection to submit, but basically, in short, Mr.
Hernandez has a Florida attempted second degree murder conviction
and the Fifth Circuit has recognized that the Florida attempt statute is
theoretically broader than the generic definition of attempt. But in a
case last year defendant [sic] failed to show that there was a reasonable
probability that Florida was going to charge it in that broader way.
So, it is foreclosed but there’s a pending cert petition in that case
challenging the reasonable probability test. So, I do want to preserve
his objection that the Florida attempt statute is too broad and so, even
though it appears to be – or it is foreclosed now, he does believe that the
Florida attempted second degree murder statute doesn’t have a categor-
ical match or it’s too broad.
(Emphasis added.) Though he did not specifically argue that Florida’s at-
tempted second-degree murder should not qualify as an “enumerated offense,”
Hernandez-Montes used similar language and alerted the court to his theory
15 Gentry v. State, 437 So. 2d 1097 (Fla. 1983).
8
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that that offense is too broad to qualify as an enumerated offense. 16
The court overruled the objection without further discussion but allowed
Hernandez-Montes to argue for a variance from the guidelines range. In doing
so, Hernandez-Montes again expressly addressed the Florida attempted-
second-degree murder offense and its problematic role as the basis for his COV
enhancement:
His plus 16 here comes from this 1995 arrest and this 20-year old
conviction was – he was 17 at the time. He was indicted as a juvenile,
but the 1996 conviction appears to be an adult conviction.
But in my research on the Florida statute, Supreme Court of Florida
Justice [sic] actually pointed out that the Florida attempted murder
statute requires lesser culpability. It require [sic] general intent, which
is different from almost every single jurisdiction in the U.S., which
requires specific intent. And this attempted depraved mind murder
doesn’t actually exist in most jurisdictions.
So, he was 17. He was convicted under a kind of an abhorrent stat-
ute in Florida 20 years ago and it’s giving him a big bump in his
guidelines now.
(Emphasis added.)
Hernandez-Montes’s objections could have been clearer, but they did
sufficiently apprise the court of the “gravamen” or “essence” of the claim he
brings on appeal. Garcia-Perez, 779 F.3d at 281–82. The repeated assertions
that Florida’s attempt statute is broader than the generic definition of attempt
did veer somewhat from Hernandez-Montes’s arguments on appeal, but they
were accompanied by repeated references to the interaction between the
attempt offense and the underlying second-degree-murder offense. Moreover,
Hernandez-Montes’s counsel’s references to Brown and that court’s extended
16 Cf. United States v. Ocana, 204 F.3d 585, 589 n.2 (5th Cir. 2000) (forgiving defen-
dant’s failure to base her objection on a specific guidelines section in part because she used
“identical terminology”).
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discussion of Florida’s attempted-second-degree murder offense were sufficient
to allow the district court to take more evidence or argument on the issue. See
Maldonado, 42 F.3d at 912.
B.
Hernandez-Montes urges that his conviction of attempted second-degree
murder does not qualify as an enumerated offense under Section 2L1.2 cmt.
n.1(B)(iii). He reasons essentially that generic, contemporary attempted mur-
der includes a mens rea of specific intent to kill, and Florida’s attempted-
second-degree murder law does not require specific intent to kill, so the crime
is too broad to constitute the enumerated offense of attempted murder.
Again, under the enumerated-offense prong of the COV framework, we
“apply a common sense approach that looks to the generic, contemporary
meaning of an offense listed in § 2L1.2 to assess whether the offense of con-
viction amounts to that enumerated offense.” Hernandez-Rodriguez, 788 F.3d
at 195, 196 n.6 (internal quotations omitted). To discern the generic meaning,
we may rely on various sources, such as state and federal statutes, state and
federal common law, the Model Penal Code, criminal law treatises, the United
States Code of Military Justice, and dictionaries. Id. at 195–96; Pascacio-
Rodriguez, 749 F.3d at 359.
Here, attempted murder is the enumerated offense. See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) & n.5. Hernandez-Montes marshals an impressive array of
authority that the generic, contemporary meaning of attempted murder
includes a specific intent to kill. For example, he lists several treatises, 17 a
17 4 WHARTON’S CRIMINAL LAW § 695 (15th ed. 2015) (“Although a murder may be
committed without an intent to kill, an attempt to commit murder requires a specific intent
to kill.”); see also ROLLIN M. PERKINS & RONALD M. BOYCE, CRIMINAL LAW 637 (3d ed. 1982);
WILLIAM L. CLARK & WILLIAM L. MARSHALL, A TREATISE ON THE LAW OF CRIMES § 4.08 (7th
ed. 1967); WAYNE R. LAFAVE & AUSTIN W. SCOTT, SUBSTANTIVE CRIMINAL LAW § 11.3(a)
10
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Supreme Court case, 18 other federal cases, 19 a dictionary definition, 20 and
thirty-eight states 21 that require proof of a specific intent to kill for a conviction
(1986).
Braxton v. United States, 500 U.S. 344, 351 n.* (1990) (“Since the statute does not
18
specify the elements of ‘attempt to kill,’ they are those required for an ‘attempt’ at common
law, [] which include a specific intent to commit the unlawful act. Although a murder may
be committed without an intent to kill, an attempt to commit murder requires a specific in-
tent to kill.” (citations omitted) (some quotations omitted)).
See, e.g., United States v. Perez, 43 F.3d 1131, 1139–40 (7th Cir. 1994) (reversing a
19
conviction under 18 U.S.C. § 113(a) “because the ‘murder with malice aforethought’ instruc-
tion did not require proof of specific intent, but rather . . . that reckless and wanton conduct
would suffice”); United States v. Kwong, 14 F.3d 189, 195–96 (2d Cir. 1994) (construing Brax-
ton) (“Although the evidence of the defendant’s guilt to attempted murder is not insufficient
as a matter of law, the charge was fatally tainted by an instruction that reckless indifference
might serve as a substitute for proof of a specific intent to kill.”); United States v. Roa, 12 M.J.
210, 212 (C.M.A. 1982) (“By way of analogy, despite the provisions of Article 118(2), where-
under intent to inflict grievous bodily harm will allow conviction for murder, that intent will
not suffice to sustain findings of guilty of attempted murder or assault with intent to
murder.”).
Cf. Attempt, BLACK’S LAW DICTIONARY (10th ed. 2014) (“2. Criminal law. An overt
20
act that is done with the intent to commit a crime but that falls short of completing the
crime.”).
See Minshew v. State, 594 So. 2d 703, 704 (Ala. Crim. App. 1991); Huitt v. State,
21
678 P.2d 415, 419 (Alaska Ct. App. 1984); People v. Smith, 124 P.3d 730, 740 (Cal. 2005);
State v. DeBarros, 755 A.2d 303, 309 (Conn. App. Ct. 2000); State v. Buckley, 953 P.2d 604,
605 (Idaho 1998); People v. Lopez, 655 N.E.2d 864, 866 (Ill. 1995); Rosales v. State, 23 N.E.3d
8, 12 (Ind. 2015); State v. Kehoe, 804 N.W.2d 302, 312–13 (Iowa 2011); State v. Shannon,
905 P.2d 649, 652–53 (Kan. 1995) (holding that attempted second-degree murder does not
exist because “specific intent to commit an unintentional killing . . . is . . . impossible”); Spicer
v. Commonwealth, 442 S.W.3d 26, 30–31 (Ky. 2014); State v. Freeman, 2010–45,127 (La. App.
2 Cir. 4/14/10); 34 So. 3d 541, 545; State v. Poulliot, 726 A.2d 210, 213 (Me. 1999); State v.
Earp, 571 A.2d 1227, 1231 (Md. 1990); Commonwealth v. Maloney, 506 N.E.2d 1147, 1149
(Mass. 1987); People v. Hall, 436 N.W.2d 446, 448 (Mich. Ct. App. 1989); State v. Schmitz,
559 N.W.2d 701, 704 (Minn. Ct. App. 1997); McGowan v. State, 541 So. 2d 1027, 1030 (Miss.
1989); State v. Clawson, 781 P.2d 267, 271–72 (Mont. 1989); State v. Smith, 811 N.W.2d 720,
721–23 (Neb. Ct. App. 2012) (differentiating between “attempted sudden quarrel manslaugh-
ter,” which does not require intent to kill, and attempted second-degree murder which does);
Keys v. State, 766 P.2d 270, 272 (Nev. 1988); State v. Allen, 514 A.2d 1263, 1267 (N.H. 1986);
State v. Rhett, 601 A.2d 689, 692 (N.J. 1992); State v. Carrasco, 172 P.3d 611, 615 (N.M. Ct.
App. 2007); People v. Campbell, 532 N.E.2d 86, 88 (N.Y. 1988); State v. Coble, 527 S.E.2d 45,
48 (N.C. 2000); Dominguez v. State, 840 N.W.2d 596, 603 (N.D. 2013); State v. Nolan, 25
N.E.3d 1016, 1018 (Ohio 2014); Messick v. State, 84 P.3d 757, 761–62 & nn.13–18 (Okla.
Crim. App. 2004) (discussing attempt statutes); State v. Smith, 534 P.2d 1180, 1184 (Or. Ct.
App. 1975); Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa. Super. Ct. 2004);
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of attempted murder. That evidence, drawn from an overwhelming majority
of U.S. jurisdictions, is sufficient to establish that attempted murder’s generic,
contemporary meaning includes a mens rea of specific intent to kill.
Florida’s attempted-second-degree murder offense is facially broader
than the generic offense. The attempt statute criminalizes “any act toward the
commission of [an] offense” without regard to any specific intent to commit the
underlying crime. FLA. STAT. § 777.04(1). Florida’s second-degree-murder
statute punishes the “unlawful killing of a human being, when perpetrated by
any act imminently dangerous to another and evincing a depraved mind re-
gardless of human life.” FLA. STAT. § 782.04(2). Florida makes clear that acts
evincing a depraved mind regardless of human life do not equate to the mens
rea of specific intent to kill. 22 Thus, reading the statutes together, Florida may
punish conduct as attempted second-degree murder without establishing proof
of a specific intent to kill. 23 Moreover, Florida’s highest court has explicated
the elements of attempted second-degree murder, from which a specific intent
to kill is absent. 24
State v. King, 772 S.E.2d 189, 193 (S.C. Ct. App. 2015); State v. Lyerla, 424 N.W.2d 908, 913
(S.D. 1988); Hughen v. State, 265 S.W.3d 473, 485 (Tex. App.—Texarkana 2008, pet. granted),
aff’d, 297 S.W.3d 330 (Tex. Crim. App. 2009); State v. Casey, 82 P.3d 1106, 1117 n.11 (Utah
2003); Baldwin v. Commonwealth, 645 S.E.2d 433, 435 (Va. 2007); State v. Dunbar, 817 P.2d
1360, 1363 (Wash. 1991); State v. Jenkins, 443 S.E.2d 244, 249 (W. Va. 1994) (noting that
“intent to kill . . . is a required element of both first and second degree murder”); State v.
Melvin, 181 N.W.2d 490, 492 (Wis. 1970).
22See State v. Montgomery, 39 So. 3d 252, 255–56 (Fla. 2010) (discussing mens rea of
second-degree murder before concluding “second-degree murder . . . does not require proof
that the defendant intended to kill the victim”).
23Brown, 790 So. 2d at 389–90; see also Gentry, 437 So. 2d at 1099 (“If the state is not
required to show specific intent to successfully prosecute the completed crime, it will not be
required to show specific intent to successfully prosecute an attempt to commit that crime.”).
24See Coicou v. State, 39 So. 3d 237, 241 (Fla. 2010) (“[Florida’s] attempted second-
degree murder has two elements: (1) the defendant intentionally committed an act that could
have resulted, but did not result, in the death of someone, and (2) the act was imminently
dangerous to another and demonstrated a depraved mind without regard for human life.”
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The inquiry does not end there, however, because, as noted above,
Hernandez-Montes must also show a “realistic probability” that Florida will
enforce its theoretically broader definition to conduct outside that punished by
generic attempted murder. He may do so by pointing 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. Garcia-Figueroa, 753 F.3d at 187 (quo-
tations omitted). He has done so by directing us to State v. Brady, 745 So. 2d
954, 955 (Fla. 1999).
In Brady, the eponymous defendant exchanged words with and shot at
his intended victim inside a nightclub. Brady missed his intended victim, hit-
ting the intended victim’s girlfriend in the hand instead. Florida convicted him
on two counts of attempted second-degree murder—one relating to the in-
tended victim and one to the girlfriend actually shot. Brady appealed, and an
intermediate court reduced his conviction as to the girlfriend to aggravated
battery because it thought “that transferred intent could not be used to convict
Brady of attempted murder of [her] where there was no evidence of intent to
kill her.”
The Florida Supreme Court reinstated Brady’s convictions of attempted
second-degree murder, reasoning that the conviction “does not require proof of
the specific intent to commit the underlying act (i.e., murder)” and that “a jury
could reasonably conclude that Brady intentionally committed an act immin-
ently dangerous to others . . . without regard for human life which would have
(emphasis added) (quotations omitted). Although Florida requires that the defendant “inten-
tionally” commit the act, that requirement is best read as “general intent” requiring that the
defendant commit the act consciously and voluntarily, instead of reflexively. See, e.g., Hol-
loway v. McElroy, 632 F.2d 605, 618 n.26 (5th Cir. 1980) (“By ‘general intent’ we mean intent
in the sense that a person intends the consequences of his voluntary physical actions—e.g.,
an ‘intentional’ shooting in self-defense.”), overruled on other grounds by Mason v. Balkcom,
669 F.2d 222, 227 (5th Cir. Unit B 1982).
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resulted in death had the bullet fatally struck” someone. Id. at 957–58. The
court summed up its reasoning:
Of course, as we have noted above, we have not required specific intent
to be proven for attempted second-degree murder. See Gentry, 437 So.
2d at 1097. Thus, it appears that the jury convicted Brady on two
counts of attempted second-degree murder without resort to the doc-
trine of transferred intent. Under our analysis and holding in Gentry
that would be lawful.
Id. at 958. Although it was undisputed that Brady never intended to kill the
bystander-girlfriend, Florida’s highest court reinstated his conviction of
attempted second-degree murder as to her.
Hernandez has shown a “realistic probability” that Florida’s attempted-
second-degree murder law “punish[es] conduct outside of the offense’s ordinary
meaning” by pointing to “other cases in which the state courts in fact did apply
the statute” to conduct not encompassed by the generic meaning. Garcia-
Figueroa, 753 F.3d at 187 (quotations omitted). Thus, the offense does not
qualify as an enumerated offense under Section 2L1.2 cmt. n.1(B)(iii) and may
not serve as the basis of a COV enhancement. 25
25 We acknowledge that, in addition to the traditional COV framework, there appears
to be a second method to analyze COV enhancements following United States v. Rodriguez-
Escareno, 700 F.3d 751, 753 (5th Cir. 2012), and Pascacio-Rodriguez, 749 F.3d at 358, 366–
67. In Rodriguez-Escareno, 700 F.3d at 753–54, we concluded a federal conviction of conspir-
acy to distribute methamphetamines in violation of 21 U.S.C. § 846 could be the basis of an
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i)—which applies a sixteen-level enhancement
for certain “drug trafficking offenses”—without resorting to an “enumerated offense” analy-
sis. Because Section 2L1.2 cmt. n.1(B)(iv) defined a “drug trafficking offense” to include dis-
tribution of controlled substances, and Section 2L1.2 cmt. n.5 treated conspiracies to commit
drug trafficking offenses as drug-trafficking offenses, “[t]here [was] no reason to search out-
side the Guidelines for a definition of ‘conspiracy’ applicable to th[e] enhancement.” Id. at
754. We concluded “the Guidelines themselves, reasonably interpreted, provide that a con-
viction of the federal drug trafficking offense will qualify for the enhancement, and so will
the federal crime of conspiring to commit such an offense.” Id.
Rodriguez-Escareno “impl[ied] no position on the relevance of [its] reasoning to apply-
ing the enhancement to convictions for conspiracies to commit state-law offenses.” Id. at
754 n.2. But Pascacio-Rodriguez extended Rodriguez-Escareno’s reasoning to a defendant’s
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III.
Hernandez-Montes maintains that, without the erroneous COV en-
hancement, he would be subject to at most an eight-level aggravated-felony
enhancement under U.S.S.G. § 2L1.2(b)(1)(C), which would yield an offense
level of thirteen and a guidelines range of 30–37 months. The government
responds that any error was harmless because the court reasonably could have
imposed the same sentence based on Hernandez-Montes’s criminal history of
gang affiliation and illegal re-entries.
“[T]he harmless error doctrine applies only if the proponent of the sen-
tence convincingly demonstrates both (1) that the district court would have
imposed the same sentence had it not made the error, and (2) that it would
have done so for the same reasons it gave at the prior sentencing.” United
States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). The government (the
proponent of the sentence here) “must point to evidence in the record that will
convince us that the district court had a particular sentence in mind and would
contention that his state-law conviction of conspiracy to commit murder did not qualify as an
enumerated offense (because it did not require an overt act, but generic conspiracy to commit
murder did) and could not be the basis of a COV enhancement. Pascacio-Rodriguez, 749 F.3d
at 354. As in Rodriguez-Escareno, we concluded that Section 2L1.2 cmt. nn.1(B)(iii) & 5
plainly encompassed conspiracy to commit murder as a COV. Id. at 366. Key to our
reasoning was the “context” of federal conspiracy statutes, many of which did not require
overt acts and many of which punished very serious crimes. Id. (noting those conspiracy
crimes without overt-act requirements “were undoubtedly intended by the Sentencing
Commission to result in a 16-level enhancement”). Thus, “the language and context of
§ 2L1.2 indicate[d] that an overt act is not required for a conspiracy to commit murder,” id.
at 367–68, and it would be unnecessary to “search for a generic meaning of ‘conspiracy’ by
employing” the COV framework, id. at 366–67.
This alternative analytical route is immaterial here, because the result in Hernandez-
Montes’s case would be the same under Pascacio-Rodriguez’s and Rodriguez-Escareno’s rea-
soning. The “context” of attempt law at the federal level and in the overwhelming majority
of state jurisdictions does not include conflicting specific-intent requirements (unlike the con-
text in Pascacio-Rodriguez). The context here thus suggests that “the Sentencing Commis-
sion . . . intended for [specific intent] to be an element of every [attempt] conviction” that
serves as the basis of a COV enhancement. See id. at 358.
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have imposed it, notwithstanding the error.” Id. at 718 (quotations omitted).
It is insufficient to point “to the record to hypothesize some other explanation
that might render the sentence reasonable.” United States v. Rodriguez-
Rodriguez, 775 F.3d 706, 712 (5th Cir. 2015) (quotations omitted). Instead, the
government “must show that the [sentence] the district court imposed was not
influenced in any way by the erroneous Guideline calculation.” United States
v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014).
The government has not proven that the district court would have
imposed the same sentence regardless of the error. The court sentenced
Hernandez-Montes to 48 months in part because the guidelines range of 70–
87 months was too harsh. If the correct guidelines range were only 30–37
months, then it is unclear that the court would have imposed the same 48-
month sentence. Though it referenced the 18 U.S.C. § 3553(a) factors and
stated that the 48-month sentence was sufficient but not greater than
necessary, the court did not indicate definitively that it would impose the same
sentence regardless of a guidelines error. We have typically required such
definite statements in order to find that the district court would have imposed
the same sentence. See, e.g., United States v. Martinez-Flores, 720 F.3d 293,
300–01 (5th Cir. 2013) (finding error where the district court “did not clearly
state” whether it would have imposed the same sentence absent the erroneous
guidelines range despite its reference to § 3553(a) factors and the defendant’s
criminal record and history of violence). 26
26 See, e.g., Rodriguez-Rodriguez, 775 F.3d at 709 (finding harmless error where the
district court justified its sentence by stating that “[t]he sentence I’m about to impose would
be the same with or without the Guidelines”); Ramos, 739 F.3d at 253–54 (harmless error
where district court relied on nature of offense and § 3553(a) factors to impose sentence;
United States v. Richardson, 676 F.3d 491, 512 (5th Cir. 2012) (same where district court
calculated multiple guideline ranges and stated it would impose the same sentence regard-
less of which was correct); United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (same
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Additionally, the government misconceives its burden on harmless-error
review. It points to Hernandez-Montes’s admittedly extensive criminal his-
tory, but it is not enough to rely on evidence that renders the sentence reason-
able. The government must point to evidence in the record that convincingly
demonstrates the district court would impose the same sentence for the same
reasons. The government has not done so.
The judgment of sentence is VACATED, and this matter is REMANDED
for resentencing.
where court stated it believed its range was correct but would apply the same sentence
regardless).
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