United States v. Hernandez-Galvan
2011 U.S. App. LEXIS 1921
| 5th Cir. | 2011Background
- Hernandez-Galvan was convicted of illegal reentry under 18 U.S.C. § 1326 after pleading guilty to that count; jury acquitted him of drug conspiracy and possession with intent to distribute offenses.
- Probation prepared a PSR: base level 8 under § 2L1.2(a); 16-level enhancement under § 2L1.2(b)(1)(A)(ii) for a prior NC conviction of attempted common-law robbery; total offense level 21 after a § 3E1.1 reduction.
- Hernandez objected to the 16-level enhancement, arguing the NC attempted common-law robbery did not fit the definition of a crime of violence under the Guidelines.
- District court overruled the objection and found, by a preponderance, that Hernandez had committed the acquitted offenses.
- Hernandez received an above-Guidelines sentence of 84 months and a 3-year supervised release; he timely appealed challenging the enhancement and related determinations.
- This appeal concerns whether the NC attempted common-law robbery qualifies as a crime of violence under U.S.S.G. § 2L1.2 and how to compare NC attempt law with the generic, contemporary meaning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NC attempted common-law robbery is a crime of violence under § 2L1.2 | Hernandez argues it may not meet the generic definition | The government contends it falls within the enumerated crime of robbery or the catch-all physical-force provision | Yes; it qualifies as a crime of violence under § 2L1.2 (enumerated category or physical-force provision) |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability standard for non-generic application of state law)
- Moreno-Florean, 542 F.3d 445 (2008) (common-sense, generic, contemporary meaning of terms; guides on comparing state and federal notions)
- Fierro-Reyna, 466 F.3d 324 (2006) (contemporary meaning and sources for definition of terms)
- Mandujano, 499 F.2d 370 (1974) (substantial step concept in the Model Penal Code framework)
- Oviedo, 525 F.2d 881 (1976) (substantial step requirement must evidence criminal purpose)
- Murillo-Lopez, 444 F.3d 337 (2006) (records allowed to determine which subpart of statute formed basis of conviction)
- Resendiz-Ponce, 549 U.S. 102 (2007) (attempt liability principles and burden-shifting)
- Ellis, 564 F.3d 370 (2009) (courts' handling of cross-state attempt definitions)