     Case: 15-41437      Document: 00514231655         Page: 1    Date Filed: 11/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                      No. 15-41437                                FILED
                                                                           November 9, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff–Appellee,

v.

CHRISTIAN ALVARADO–MARTINEZ,

              Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-142-1


Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Christian Alvarado–Martinez argues that the
district court erroneously applied a 16-level “crime of violence” enhancement
to his offense calculation under Sentencing Guidelines § 2L1.2. 1 We find the
district court did not plainly err. Thus, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 U.S. Sentencing Guidelines Manual § 2L1.2 (U.S. Sentencing Comm’n 2014). This
case involves issues relating to the 2014 version of the Sentencing Guidelines. Nothing in
this opinion relating to the 2014 Guidelines should be construed to apply to subsequent
versions of the Guidelines.
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                                    No. 15-41437
                               I. BACKGROUND
      Christian Alvarado–Martinez is a Mexican citizen. Portions of his
criminal history relevant for this appeal follow.
      In July 2007, Alvarado–Martinez was convicted in Kentucky of two
counts of second-degree assault and sentenced to eight years in custody. He
received probation for these offenses in February 2008 and was deported in
April 2008.
      Alvarado–Martinez later returned to the United States. In May 2012, he
was convicted in Kentucky for second-degree wanton endangerment. He was
sentenced to five years in custody for this offense and convictions relating to
identity theft. In October 2014, he was deported.
      He again returned to the United States. United States Customs and
Border Protection agents encountered Alvarado–Martinez near the border
fence in Progreso, Texas. Upon questioning, Alvarado–Martinez admitted to
being present illegally in the United States.
      On February 24, 2015, a federal grand jury indicted Alvarado–Martinez
of one count of illegal reentry in violation of 8 U.S.C. §§ 1326(a)–(b). Alvarado–
Martinez pleaded guilty to the indictment.
      A probation officer then prepared a presentence investigation report
(“PSR”). The PSR recommended a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because Alvarado–Martinez was convicted of two felony
crimes of violence—second-degree assault and second-degree wanton
endangerment—prior       to   his   deportation    and   reentry.   Applying   this
enhancement to a Base Offense Level of 8 under U.S.S.G. § 2L1.2(a) and a 3-
level reduction under U.S.S.G. §§ 3E1.1(a)–(b) for acceptance of responsibility,
the Total Offense Level was calculated at 21. Alvarado–Martinez’s Criminal
History Score was 8, and his Criminal History Category was IV. The calculated
sentence range under the Guidelines was 57 to 71 months.
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                                  No. 15-41437
      Alvarado–Martinez objected in writing to certain portions of the PSR.
His June 25, 2015 objection contested the criminal history points he was
assessed for certain prior convictions. His July 17, 2015 objection raised similar
criticisms of the criminal history point calculation. He also argued that his
wanton endangerment offense involved the use of a “blank gun,” which
“merit[ed] a downward departure.” Alvarado–Martinez also attached—without
providing any explanation, context, or annotation—slip copies of two opinions:
United States v. Leal–Rax, 594 F. App’x 844 (5th Cir. 2014) (unpublished), and
United States v. Ortega–Galvan, 682 F.3d 558 (7th Cir. 2012).
      During his October 7, 2015 sentencing hearing, Alvarado–Martinez
objected to his sentence. He reiterated his objections that the PSR incorrectly
calculated his criminal history points. He also repeated that the weapon
involved in the wanton endangerment offense was “a Hollywood prop.”
Regarding the attached cases, the hearing transcript reflects that Alvarado–
Martinez’s counsel said:
      [B]ack in July I had put on the record a case -- who I considered a
      learned Judge Posner (phonetic) -- that talks about there has to be,
      I guess, that rare instances where if the – that I’m about to let him
      speak about -- if that’s swasive [sic] that sometimes we can look
      and back at certain cases because of the import they have in a post-
      booker environment.

Counsel did not discuss the cases further. Alvarado–Martinez himself then
testified about the events surrounding his wanton endangerment conviction.
The district court imposed a sentence of 48 months’ imprisonment with no term
of supervised release. The sentence was below the Guidelines range.
      On October 21, 2015, Alvarado filed a pro se notice of appeal. Final
judgement was entered on October 23, 2015.




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                                  No. 15-41437
                             II. JURISDICTION
      Alvarado–Martinez appeals his sentence in a criminal case involving a
federal offense. He timely filed his notice of appeal. See Fed. R. App. P. 4(b)(2)
(“A notice of appeal filed after the court announces a decision, sentence, or
order—but before the entry of the judgment or order—is treated as filed on the
date of and after the entry.”). The district court had jurisdiction under 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
                        III. STANDARD OF REVIEW
      We review the 16-level sentence enhancement for plain error because
Alvarado–Martinez did not object to the enhancement before the district court.
See United States v. Medina–Anicacio, 325 F.3d 638, 643 (5th Cir. 2003)
(“When a defendant objects to his sentence on grounds different from those
raised on appeal, we review the new arguments raised on appeal for plain error
only.”).
      Plain error is appropriate, notwithstanding Alvarado–Martinez’s
protests to the contrary. Alvarado–Martinez contends that he objected to the
enhancement by attaching to his July 17 PSR objection copies of opinions from
two cases pertaining to how a “crime of violence” is defined for purposes of a
sentence enhancement under U.S.S.G. § 2L1.2. He admits that his objections
did “not expressly state that [he] believes the PSR incorrectly identified his
prior Kentucky convictions as ‘crimes of violence.’” But he believes that
attaching relevant legal authority to the objections is “sufficient to have placed
the District Court on notice that he intended to dispute whether his prior
Kentucky convictions even qualify as crimes of violence.”
      We disagree. “To preserve an issue for review on appeal, the defendant’s
objection must fully apprise the trial judge of the grounds for the objection so
that evidence can be taken and argument received on the issue.” United States
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                                  No. 15-41437
v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016) (quoting United States v. Musa,
45 F.3d 922, 924 n.5 (5th Cir. 1995)). It is not enough to file a written objection
and attach legal authority that raises a separate objection. Failing to explain
the separate objection in briefing or during the sentencing hearing compounds
the problem. Objections must be raised clearly “so that the district court may
correct itself and thus, obviate the need for our review.” United States v.
Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (quoting United States
v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994)). We do not require the district
court to spot all conceivable objections that the party may—but did not
explicitly—raise. Thus, we conclude that Alvarado–Martinez failed to apprise
the district court of his objection to the 16-level enhancement.
      However, as Alvarado–Martinez urges in the alternative, we can review
the 16-level enhancement for plain error. Fed. R. Crim. P. 52(b) (“A plain error
that affects substantial rights may be considered even though it was not
brought to the court’s attention.”). Plain-error review involves four prongs:
      First, there must be an error or defect—some sort of deviation from
      a legal rule—that has not been intentionally relinquished or
      abandoned, i.e., affirmatively waived, by the appellant. Second, the
      legal error must be clear or obvious, rather than subject to
      reasonable dispute. Third, the error must have affected the
      appellant’s substantial rights, which in the ordinary case means
      he must demonstrate that it affected the outcome of the district
      court proceedings. Fourth and finally, if the above three prongs are
      satisfied, the court of appeals has the discretion to remedy the
      error—discretion which ought to be exercised only if the error
      seriously affects the fairness, integrity or public reputation of
      judicial proceedings.

Puckett v. United States, 556 U.S. 129, 135 (2009) (citations, alterations, and
internal quotations omitted).




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                                       No. 15-41437
                                    IV. DISCUSSION
      Alvarado–Martinez asserts that he should not be subject to a 16-level
enhancement under U.S.S.G. § 2L1.2 because neither of his two Kentucky
convictions qualifies as a “crime of violence.” The Government agrees that the
second-degree wanton endangerment conviction does not qualify as a “crime of
violence.” That leaves Alvarado–Martinez’s second-degree assault conviction.
Thus, the issue is whether the district court plainly erred in categorizing
Alvarado–Martinez’s second-degree assault conviction as a “crime of violence.”
We conclude that the district court did not plainly err in treating the second-
degree assault conviction as a “crime of violence.” Thus, we affirm.
A.    Framework for Determining Whether Kentucky’s Second-
      Degree Assault Offense Qualifies as a “Crime of Violence”

      The district court enhanced Alvarado–Martinez’s sentence under
U.S.S.G. § 2L1.2(b)(1)(A). He received the 16-level enhancement because he
illegally reentered the United States after his previous deportation for a felony
conviction. U.S.S.G. § 2L1.2(b)(1)(A) lists felonies that could qualify one for the
enhancement. One qualifying felony is a “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The Guidelines’ commentary defines “crime of violence” as
any offense in an enumerated list, 2 including “aggravated assault;” and “any
other offense under federal, state, or local law that has as an element the use,




      2   The list of enumerated offenses includes:

      [A]ny of the following offenses under federal, state, or local law: murder,
      manslaughter, kidnapping, aggravated assault, forcible sex offenses (including
      where consent to the conduct is not given or is not legally valid, such as where
      consent to the conduct is involuntary, incompetent, or coerced), statutory rape,
      sexual abuse of a minor, robbery, arson, extortion, extortionate extension of
      credit, [and] burglary of a dwelling.

      U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
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                                 No. 15-41437
attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
       The Government asserts that Kentucky’s second-degree assault statute
can qualify as a “crime of violence” in either of two ways. First, Kentucky’s
second-degree assault offense is materially indistinguishable from an
“aggravated assault,” which is an enumerated “crime of violence.” In the
alternative, the Government argues that the Kentucky statute outlines an
offense that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii).
       We first address whether Alvarado–Martinez’s second-degree assault
conviction qualifies as an “aggravated assault.” We apply the categorical
approach established in Taylor v. United States, 495 U.S. 575 (1990), to
determine whether his prior state conviction qualifies as a “crime of violence.”
United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc). This
requires us to compare the “generic, contemporary meaning” of “aggravated
assault” to the elements of Kentucky’s second-degree assault offense. See id.
(quoting United States v. Dominguez–Ochoa, 386 F.3d 639, 642–43 (5th Cir.
2004)). We follow a “common sense” approach. United States v. Hernandez–
Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). The generic, contemporary
meaning emerges from surveying “the Model Penal Code, the LaFave and Scott
[criminal law] treatises, modern state codes, and dictionary definitions.”
United States v. Esparza–Perez, 681 F.3d 228, 229 (5th Cir. 2012) (citing
United States v. Iniguez–Barba, 485 F.3d 790, 791 (5th Cir. 2007)). “Our
primary source for the generic contemporary meaning of aggravated assault is
the Model Penal Code.” United States v. Torres–Diaz, 438 F.3d 529, 536 (5th
Cir. 2006). If Kentucky’s second-degree assault statute proscribes behavior
beyond the scope of the generic, contemporary meaning of “aggravated
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                                No. 15-41437
assault,” then Alvarado–Martinez’s conviction under the statute cannot
constitute a “crime of violence.” See United States v. Fierro–Reyna, 466 F.3d
324, 327 (5th Cir. 2006).
B.    Whether Kentucky’s Second-Degree Assault Offense Qualifies as
      a “Crime of Violence”

      Alvarado–Martinez asserts that Kentucky’s statute proscribes behavior
beyond the generic definition of “aggravated assault,” so the second-degree
assault offense does not match the generic definition of “aggravated assault.”
Thus, his conviction cannot be used to enhance his sentence because the
underlying crime was not a “crime of violence.” The Government contends that
Kentucky’s second-degree assault offense matches the generic definition of
“aggravated assault.” Thus, because the offense matches an enumerated
“crime of violence,” Alvarado–Martinez’s second-degree assault conviction can
properly serve as the basis for enhancing his sentence.
      Evaluating these arguments requires comparing the Model Penal Code’s
“aggravated assault” offense with Kentucky’s second-degree assault offense.
See Torres–Diaz, 438 F.3d at 536. The Model Penal Code explains that a person
has committed “aggravated assault” when he:
      (a) attempts to cause serious bodily injury to another, or causes
      such injury purposely, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life; or
      (b) attempts to cause or purposely or knowingly causes bodily
      injury to another with a deadly weapon.

Model Penal Code § 211.1(2). Kentucky Statute § 508.020(1) establishes that a
person may be guilty of second-degree assault when:
      (a) He intentionally causes serious physical injury to another
      person; or
      (b) He intentionally causes physical injury to another person by
      means of a deadly weapon or a dangerous instrument; or

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                                No. 15-41437
      (c) He wantonly causes serious physical injury to another person
      by means of a deadly weapon or a dangerous instrument.

Ky. Rev. Stat. § 508.020(1).
      Comparing these, Alvarado–Martinez argues that Kentucky’s second-
degree assault offense does not categorically match generic “aggravated
assault” because Kentucky’s statute leaves open the possibility that someone
may be guilty of second-degree assault for “wantonly” injuring another. This,
he asserts, establishes that someone may be convicted under the Kentucky
statute on the basis of a less culpable mental state than generic “aggravated
assault” requires. Alvarado–Martinez identifies no Fifth Circuit case law that
supports his interpretation.
      Instead, Alvarado–Martinez cites Fourth and Ninth Circuit opinions to
support his argument. Relying on United States v. Barcenas–Yanez, 826 F.3d
752 (4th Cir. 2016) and United States v. Garcia–Jimenez, 807 F.3d 1079 (9th
Cir. 2015), he asserts that a “wanton” mental state is synonymous with a
“reckless” mental state and that generic “aggravated assault” requires a more
culpable mental state than “recklessness.” By proscribing a “reckless” assault,
Kentucky’s statute is overbroad. Thus, according to him, a 16-level sentence
enhancement is improper because Kentucky’s statute does not match the
generic “aggravated assault” offense.
      The Government contends that including the mental state of
“recklessness” in a criminal assault statute does not disqualify that statute
from matching the generic “aggravated assault” offense. According to the
Government, our case law supports the proposition that including the mental
state of “recklessness” in an aggravated assault statute cannot render the
statute overbroad. See United States v. Mungia–Portillo, 484 F.3d 813, 817 (5th
Cir. 2007) (“We infer from this that a defendant’s mental state in committing
an aggravated assault, whether exhibiting ‘depraved heart’ recklessness or
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                                No. 15-41437
‘mere’ recklessness, is not dispositive of whether the aggravated assault falls
within or outside the plain, ordinary meaning of the enumerated offense of
aggravated assault.”); see also United States v. Villasenor–Ortiz, 675 F. App’x
424, 428 (5th Cir. 2017), cert. denied, No. 16-9422, 2017 WL 2405929 (U.S. Oct.
2, 2017) (rejecting the reasoning of the Fourth and Ninth Circuits and
reaffirming that an aggravated assault statute requiring a mental state of
recklessness can match the generic aggravated assault offense). The
Government emphasizes that instead of focusing on the mental state required,
our precedent looks at whether the “aggravated assault statute includes the
two most common aggravating factors, the causation of serious bodily injury
and the use of a deadly weapon” to determine if the statute matches the generic
“aggravated assault” offense. Mungia–Portillo, 484 F.3d at 817.
      The Government asserts that § 508.020(1)(c) includes the two most
common aggravating factors for an aggravated assault statute: causation of
serious bodily injury and use of a deadly weapon. According to the Government,
the statute’s phrase “serious physical injury” is substantially similar to
“serious bodily injury” in the Model Penal Code. And the language “deadly
weapon or dangerous instrument” aligns with the term “deadly weapon” in the
Model Penal Code. Moreover, according to the Government, slight differences
between the Model Penal Code offense and the Kentucky offense are “not
enough to take the defendant’s crime out of the common sense definition of the
enumerated offense of aggravated assault.” United States v. Ramirez, 557 F.3d
200, 207 (5th Cir. 2009); see also United States v. Rojas–Gutierrez, 510 F.3d
545, 549 (5th Cir. 2007) (emphasizing that, applying a common sense
approach, “[e]ven if the fit between the enumerated offense of aggravated
assault and the ordinary, contemporary, and common meaning of aggravated
assault may not be precise in each and every way, slight imprecision would not
preclude our finding a sufficient equivalence.”). Thus, the Government
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                                  No. 15-41437
concludes that Kentucky’s second-degree assault offense corresponds to the
Model Penal Code’s definition of “aggravated assault.” And, following that
conclusion, Kentucky’s second-degree assault offense matches the generic,
contemporary meaning of “aggravated assault.” Ultimately, we need not decide
which party’s interpretation is correct.
C.     The District Court Did Not Plainly Err

       Even assuming the court erred in treating Kentucky’s second-degree
assault offense as matching the generic “aggravated assault” offense, the error
was not plain.
       Satisfying the second prong of plain error review requires showing that
the district court’s error was “clear or obvious, rather than subject to
reasonable dispute.” Puckett, 556 U.S. at 135. We are reluctant to find plain
error when no binding precedent contradicts the district court’s holding. See
United States v. Garcia–Gonzalez, 714 F.3d 306, 318 (5th Cir. 2013); see also
United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) (recognizing that
“lack of binding authority is often dispositive in the plain-error context”). If a
party’s theory of the case requires extending our court’s precedent, “any
potential error could not have been ‘plain.’” United States v. Hull, 160 F.3d 265,
272 (5th Cir. 1998).
       The district court could not rely on binding Fifth Circuit case law
interpreting Kentucky’s second-degree assault statute for the purposes of a
U.S.S.G. § 2L1.2 enhancement. The court treated the statute as matching the
generic “aggravated assault” offense. Our precedents support this conclusion.
Or, at the very least, no binding Fifth Circuit precedent contradicts this
conclusion. Alvarado–Martinez cites out-of-circuit case law that may suggest a
different result. But adopting the reasoning of these other circuits would have
required the district court to extend—and possibly abrogate—our precedent.
We cannot conclude that the district court plainly erred by declining to follow
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                                No. 15-41437
such a path. Accordingly, Alvarado–Martinez is unable to satisfy the second
prong of plain error review. Thus, we need not evaluate the other prongs.
                             V. CONCLUSION
     The district court did not plainly err in treating Alvarado–Martinez’s
second-degree assault conviction as an enumerated “crime of violence.”
Therefore, we AFFIRM that Alvarado–Martinez is subject to a 16-level
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A).




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