     Case: 15-20606      Document: 00514550970         Page: 1    Date Filed: 07/11/2018




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

                                      No. 15-20606                        FILED
                                                                      July 11, 2018
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

              Plaintiff - Appellee

v.

VICTOR HUGO QUINONEZ-SAA, also known as Victor Hugo Quinonez Saa,
also known as Mario Walter Quinones,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CR-309


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Victor Hugo Quinonez-Saa appeals his sentence resulting from a guilty
plea for being illegally in the United States after being deported subsequent to
an aggravated felony conviction.           Quinonez-Saa claims the district court
plainly erred in concluding that his first-degree murder conviction was a “crime




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 15-20606
of violence” under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing
Guidelines (“U.S.S.G”). Because any error was not plain, we AFFIRM.
                                     I. Background
       Quinonez-Saa pleaded guilty to one count of being illegally in the United
States after being deported subsequent to an aggravated felony conviction, in
violation of 8 U.S.C. § 1326(a) and (b)(2). The 2014 Sentencing Guidelines in
effect at the time added sixteen points to a defendant’s base offense level if he
illegally reentered or stayed in the United States after having previously
committed a felony “crime of violence.” See U.S.S.G § 2L1.2(b)(1)(A)(ii). The
Probation Office concluded that Quinonez-Saa’s prior state conviction for first-
degree murder was a “crime of violence,” and so it recommended increasing his
offense level from 8 to 24.
       Based on Quinonez-Saa’s offense level and criminal history, the
Sentencing Guidelines called for 46 to 57 months in prison. 1 See U.S.S.G., ch.
5, pt. A. The district court sentenced Quinonez-Saa to 42 months, which
included credit for four months he already spent in custody. Quinonez-Saa did
not object to the Probation Office’s use of the “crime of violence” enhancement
in calculating his Sentencing Guidelines range in its Presentence Investigation
Report, or to the district court’s application of the enhancement at sentencing.
Quinonez-Saa now appeals his sentence, challenging the crime of violence
enhancement.
                               II. Standard of Review
       Quinonez-Saa concedes, and the record confirms, that his appeal is
subject to plain error review because he did not raise this issue in the district



       1Quinonez-Saa’s final offense level was 21, after he received three points for accepting
responsibility. See U.S.S.G § 3E1.1(a), (b). He received three criminal history points for the
state murder conviction and two criminal history points for committing the instant offense
while on parole, resulting in a criminal history category of III. See U.S.S.G. § 4A1.1(a), (d).
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                                      No. 15-20606
court. See United States v. Garcia-Perez, 779 F.3d 278, 281–82 (5th Cir. 2015).
To establish plain error, a defendant “must show (1) an error (2) that was clear
or obvious (3) that affected his substantial rights.” See United States v. Avalos-
Martinez, 700 F.3d 148, 153 (5th Cir. 2012) (per curiam). To determine
“whether an error is ‘clear or obvious,’ we look to the ‘state of the law at the
time of appeal,’ and we must decide whether controlling circuit or
Supreme Court precedent has reached the issue in question, or whether the
legal question would be subject to ‘reasonable dispute.’” United States v. Scott,
821 F.3d 562, 570–71 (5th Cir. 2016) (quoting United States v. Fields, 777 F.3d
799, 802 (5th Cir. 2015)). If the defendant establishes plain error, this court
“ha[s] the discretion to correct the error if it ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’” Avalos-Martinez, 700
F.3d at 153 (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)); see
also Rosales-Mireles v. United States, 2018 WL 3013806 *12 (U.S. Jun. 18,
2018) (No. 16-9493) (discussing plain error review and focusing on the
discretionary fourth prong).
                                    III. Discussion
       Quinonez-Saa argues the district court erred in classifying his Texas
murder conviction as a “crime of violence.”              Under § 2L1.2(b)(1)(A)(ii), a
conviction is a “crime of violence” if it is (1) one of the section’s “enumerated
offenses,” or (2) “an offense ‘that has as an element the use, attempted use, or
threatened use of physical force against the person of another.’” 2 United States
v. Hernandez-Montes, 831 F.3d 284, 288 (5th Cir. 2016) (quoting U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii)).       For the first test, we start by determining the



       2  Quinonez-Saa argues that Texas’s murder statute fails both tests, but we do not
address the “use of physical force” test because, as discussed below, we conclude that the
district court did not plainly err in concluding that Quinonez-Saa’s state murder conviction
is a crime of violence under the “enumerated offense[]” test.
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“generic, contemporary meaning” of the relevant, enumerated offense. Id.
(quoting United States v. Herrera-Alvarez, 753 F.3d 132, 137 (5th Cir. 2014)).
In doing so, we “look[] 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.”                 Id. (internal
quotation marks omitted) (quoting Herrera-Alvarez, 753 F.3d at 137–38). We
then “compare the elements of the statute forming the basis of the defendant’s
conviction with the elements of the generic crime.” Hernandez-Montes, 831
F.3d at 289 (quoting United States v. Pascacio-Rodriguez, 749 F.3d 353, 358
(5th Cir. 2014)). If the elements are “narrower than or coterminous with the
generic meaning,” then we affirm application of the enhancement. Id. (citing
United States v. Hernandez-Rodriguez, 788 F.3d 193, 195–96 (5th Cir. 2015)).
      The Sentencing Guidelines specifically enumerate “murder” as a “crime
of violence.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). But Quinonez-Saa argues
that Texas’s murder statute allows a conviction for felony murder that is
broader than generic felony murder, and therefore, Texas’s definition of
murder is plainly too broad to be “murder” as enumerated. Quinonez-Saa was
convicted of first-degree murder in 1992 under Texas Penal Code § 19.02(a),
which provided that someone committed the offense if he:
             (3) commits or attempts to commit a felony, other than
             . . . manslaughter, and in the course of and in
             furtherance of the commission or attempt, or in
             immediate flight from the commission or attempt, he
             commits or attempts to commit an act clearly
             dangerous to human life that causes the death of an
             individual. 3




      3The present version of Texas’s murder statute criminalizes the same conduct under
Texas Penal Code § 19.02(b).

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                                       No. 15-20606
       Quinonez-Saa argues that the felony murder definition in § 19.02(a)(3)
is too broad because (1) it allows a conviction based on any felony other than
manslaughter that involves a dangerous act, whereas most jurisdictions list
specific triggering felonies, and (2) Texas allows a conviction when the
underlying felony is not independent from the homicide, whereas most states
require an independent felonious purpose. 4
       Although we have decided what constitutes the generic offense of
attempted murder, see Hernandez-Montes, 831 F.3d at 292–93, we have not
done so for murder or felony murder, and neither has the Supreme Court.
Given the lack of controlling precedent, we conclude that any error by the
district court was not plain because (as explained below) the relevant sources
indicate that whether Texas felony murder comports with the generic
definition is “subject to reasonable dispute.” See Scott, 821 F.3d at 570–71.
       Texas limits felony murder to offenses where the defendant commits or
attempts “an act clearly dangerous to human life” during or in furtherance of
a felony, or in immediate flight, and the act kills someone. TEX. PENAL CODE
§ 19.02(a)(3) (1991). By comparison, the Model Penal Code defines murder as
including homicides “committed recklessly under circumstances manifesting
extreme indifference to the value of human life,” and it presumes such
recklessness and indifference if the homicide occurs during the commission,
attempted commission, or flight from committing various enumerated felonies.
MODEL PENAL CODE § 210.2(1)(b); see also 2 WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 14.5(b) (3d ed. 2017) (discussing approaches to defining



       4  There is no “adequate judicial record evidence” indicating which subsection of
§ 19.02(a) Quinonez-Saa was convicted under. See Shepard v. United States, 544 U.S. 13, 16
(2005). Therefore, all three subsections must fit the generic definition of murder. See United
States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008); cf. Mathis v. United States, 136
S. Ct. 2243, 2248–49 (2016).

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                                  No. 15-20606
murder); see also Felony-Murder Rule, BLACK’S LAW DICTIONARY (10th ed.
2014) (defining the rule as “if a person dies during the course of and in
furtherance of a specified type of felony—even in immediate flight from the
scene . . . the death is considered a murder regardless of intent” and explaining
that “[m]ost states restrict this rule to inherently dangerous felonies such as
rape, arson, robbery, and burglary”). The only sister circuit to have considered
this issue is the Third Circuit. It concluded that “murder is generically defined
as causing the death of another person either intentionally, during the
commission of a dangerous felony, or through conduct evincing reckless and
depraved indifference to serious dangers posed to human life.” United States
v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014).
      We need not decide if the Texas felony murder statute is broader than
generic murder. Based on the foregoing relevant sources, see Hernandez-
Montes, 831 F.3d at 288, we cannot say it is clear or obvious that Texas’s felony
murder rule is broader than generic felony murder. The state’s requirement
of “an act clearly dangerous to human life” that causes someone’s death
arguably limits the rule to dangerous felonies and conduct showing extreme
indifference to human life, which is the common element in each of the
foregoing definitions.
      AFFIRMED.




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