United States v. Victor Hernandez-Montes
2016 U.S. App. LEXIS 13515
5th Cir.2016Background
- In 1995 Hernandez-Montes drove to a scene, remained in a car, exchanged words with three men, and opened fire; Florida convicted him of attempted second-degree murder (1996).
- Florida law defines second-degree murder as an unlawful killing by an act imminently dangerous to others evincing a depraved mind (no specific intent to kill); Florida attempt statute criminalizes an act toward commission of an offense without requiring a specific intent to commit the underlying crime.
- In 2014 Hernandez-Montes pleaded guilty to illegal reentry (8 U.S.C. §1326); the PSR applied a 16-level crime-of-violence (COV) enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) based on the attempted second-degree murder conviction, producing a 70–87 month guideline range; court granted a variance and sentenced to 48 months.
- Hernandez-Montes objected that Florida attempted second-degree murder is broader than the generic attempted-murder offense (lacking specific intent to kill), and therefore is not an enumerated COV; he preserved the objection on appeal.
- The Fifth Circuit held the Florida offense is facially broader than generic attempted murder, that Florida courts (e.g., Brady) have applied the statute to conduct lacking specific intent to kill, and remanded for resentencing because the government failed to show harmlessness of the erroneous 16-level enhancement.
Issues
| Issue | Hernandez-Montes' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Hernandez-Montes preserved his challenge for de novo review | His written and oral objections — citing Florida attempt statute and Brown/Brady — alerted the district court to the claim | The objection was framed differently below and thus plain-error review should apply | Preserved; de novo review appropriate because objections sufficiently apprised the court of the gravamen of the claim |
| Whether Florida attempted second-degree murder qualifies as an "enumerated" attempted murder COV under U.S.S.G. §2L1.2 | Florida attempt plus second-degree murder together are broader than the generic attempted-murder (generic requires specific intent to kill) | The Guidelines’ enumerated list covers attempted murder; the enhancement was proper | Rejected: generic attempted murder requires specific intent to kill; Florida law allows conviction without specific intent and Brady demonstrates realistic probability Florida prosecutes broader conduct — so it is not an enumerated COV |
| Whether the sentencing error was harmless (i.e., would the court impose the same 48‑month sentence absent the 16-level enhancement) | Not harmless — court relied on the erroneous guideline range and did not state it would impose the same sentence regardless | Harmless because the defendant’s criminal history and conduct would support the same sentence | Not harmless: government failed to convincingly demonstrate the district court would have imposed the same sentence for the same reasons; vacated and remanded for resentencing |
Key Cases Cited
- United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015) (explaining the Crime-of-Violence framework and methodologies for enumerated-offense and force prongs)
- United States v. Garcia-Figueroa, 753 F.3d 179 (5th Cir. 2014) (realistic-probability standard for categorical approach; requiring examples of state court applications outside generic meaning)
- United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. 2014) (comparative-elements analysis under enumerated-offense prong)
- Braxton v. United States, 500 U.S. 344 (1991) (attempt to kill requires specific intent under common-law attempt principles)
- State v. Brady, 745 So. 2d 954 (Fla. 1999) (Florida Supreme Court upheld attempted second-degree murder convictions where specific intent to kill was absent, showing state application of broader statute)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to defining generic offenses)