United States v. Jose Hernandez-Morales
681 F. App'x 362
5th Cir.2017Background
- Defendant Jose Armando Hernandez-Morales, a Mexican citizen, pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326; PSR applied the 2014 Guidelines.
- PSR imposed a 16-level U.S.S.G. § 2L1.2(b)(1)(A)(ii) enhancement based on a 1999 Illinois second-degree murder conviction, producing a total offense level of 21 and an advisory range of 70–87 months.
- Defense did not file written PSR objections; at sentencing counsel orally argued the Illinois conviction was broader than the generic definition because it permits negligent or accidental killings.
- On appeal Hernandez-Morales refined his challenge, arguing the Illinois statute allows conviction where the defendant knowingly creates a strong probability of great bodily harm (720 Ill. Comp. Stat. § 5/9-1(a)(2)), a theory not raised at sentencing.
- The district court adopted the PSR and sentenced Hernandez-Morales to 72 months’ imprisonment; the Fifth Circuit affirmed, finding the refined appellate argument was not preserved and any error was not plain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2L1.2 murder enhancement applies given Hernandez-Morales’s Illinois second-degree murder conviction | Hernandez-Morales: Illinois statute broader than generic murder because it allows conviction where defendant knowingly creates a strong probability of great bodily harm | Government: Enhancement proper; defendant failed to preserve the specific ‘great bodily harm’ argument at sentencing | Court: Argument not preserved at district court; appellate review limited to plain error and no plain error found — enhancement affirmed |
| Standard of review for the § 2L1.2 enhancement challenge | Hernandez-Morales: De novo because he objected at sentencing | Government: Preservation only for some arguments; new theory reviewed for plain error | Court: De novo generally, but where appellate theory differs from the district-court objection, plain-error review applies; here plain-error review governs |
Key Cases Cited
- United States v. Garcia-Perez, 779 F.3d 278 (5th Cir.) (de novo review ordinarily for § 2L1.2 enhancements; different appellate grounds may trigger plain-error review)
- United States v. Wikkerink, 841 F.3d 327 (5th Cir.) (objection must apprise the trial judge of grounds so evidence and argument can be received)
- United States v. Narez-Garcia, 819 F.3d 146 (5th Cir.) (appellate review limited to plain error when a different ground is raised on appeal than at sentencing)
- Puckett v. United States, 556 U.S. 129 (U.S.) (plain-error standard: error not clear or obvious if reasonably disputed)
- United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir.) (defendant bears burden to show plain error affecting substantial rights)
- United States v. Evans, 587 F.3d 667 (5th Cir.) (courts ordinarily do not find plain error when an issue has not been previously addressed)