     Case: 15-41496      Document: 00513907804         Page: 1    Date Filed: 03/13/2017




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

                                      No. 15-41496                            FILED
                                                                        March 13, 2017
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

JOSE ARMANDO HERNANDEZ-MORALES, also known as Jose Hernandez,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:14-CR-1133-1


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Armando Hernandez-Morales appeals his sentence for illegal
reentry following deportation in violation of 8 U.S.C. § 1326. Because we find
that Hernandez-Morales did not preserve his argument and that any error
committed by the district court was not plain, we affirm the sentence.
                                             I
       Hernandez-Morales, a citizen of Mexico, pleaded guilty without a plea
agreement to illegal reentry following deportation in violation of 8 U.S.C.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41496
§ 1326.      Applying the 2014 Sentencing Guidelines, the presentence report
(PSR) calculated Hernandez-Morales’s total offense level as 21, which included
a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on
Hernandez-Morales’s 1999 Illinois conviction for second degree murder. This
total offense level of 21, coupled with a criminal history category of V, produced
an advisory guidelines range of 70 to 87 months. Hernandez-Morales did not
file written objections to the PSR.
        At sentencing, defense counsel informed the court that there had been a
“technical issue” and apologized for not filing written objections. Defense
counsel contended that the state court documents that had been submitted
failed to reflect the subsection of the Illinois second degree murder statute
under which Hernandez-Morales had been convicted. Consequently, defense
counsel argued, Hernandez-Morales’s Illinois conviction for second-degree
murder did not qualify as one for “murder” or “manslaughter” under U.S.S.G §
2L1.2 cmt. n.1(B)(iii) because generic murder requires at least recklessness,
while the Illinois statute under which Hernandez-Morales was convicted
permits conviction for negligent or accidental causes of death. 1 The district
court       rejected   counsel’s   arguments.          It    adopted     the    findings     and
recommendations in the PSR and sentenced Hernandez-Morales to 72 months
of imprisonment, to be followed by a three year term of supervised release.



        1We note that the Illinois statute does not, in fact, permit conviction for second degree
murder where the defendant has a mes rea of negligence. The subsection pointed to by
counsel provides for reduction from first (intentional or reckless) to second degree murder
where the State has proven beyond a reasonable doubt that the defendant committed first
degree murder but the defendant has demonstrated that “at the time of the killing he or she
[was] acting under a sudden and intense passion resulting from serious provocation by the
individual killed or another whom the offender endeavor[ed] to kill, but he or she negligently
or accidentally cause[d] the death of the individual killed.” See 720 Ill. Comp. Stat. § 5/9-2(c);
People v. Jeffries, 646 N.E.2d 587, 595 (Ill. 1995) (second degree murder “is first degree
murder plus defendant’s proof by a preponderance of the evidence that a mitigating factor is
present”).
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                                 No. 15-41496
      Hernandez-Morales filed a timely notice of appeal. In his opening brief,
he repeats his argument that Hernandez-Morales’s Illinois conviction for
second-degree murder does not qualify as one for “murder” or “manslaughter”
under U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). However, he does not argue that the
Illinois statute is broader because it permits conviction for negligent causes of
death; rather, he argues that the Illinois offense does not qualify as generic
murder because unlike the generic offense, the Illinois statute permits
conviction where the defendant causes the death of another and knows that
his acts created “a strong probability of . . . great bodily harm.” See 720 Ill.
Comp. Stat. § 5/9-1(a)(2).
                                       II
      The parties disagree as to the applicable standard of review. Hernandez-
Morales argues that de novo review should apply, as he objected to the
application of the § 2L1.2 enhancement at sentencing.         The Government
concedes that Hernandez-Morales sufficiently preserved the argument that his
conviction under the Illinois murder statute is broader than the generic
definition of murder or manslaughter because the statute permits a negligent
or accidental killing for purposes of challenging the § 2L1.2(b)(1)(A)(ii)
enhancement, but argues that any additional arguments must be reviewed for
plain error.
                                       A
      Ordinarily, this court reviews a district court’s imposition of a § 2L1.2
enhancement de novo. United States v. Garcia-Perez, 779 F.3d 278, 281 (5th
Cir. 2015). However, when a defendant’s argument on appeal is based on a
different ground than his objection in the district court, this court reviews for
plain error only. Id. at 281 & n.2. “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
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                                 No. 15-41496
issue.” United States 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).          However,
“Objections supported below by a given argument cannot preserve a completely
different argument on appeal.” Garcia-Perez at 281 n.2.
                                       B
      Hernandez-Morales argues that he properly preserved his argument
because “[a]lthough his argument has been refined on appeal, its essence was
fairly presented to the district court.” Although we agree that a defendant may
preserve a narrow argument by raising a broad objection below, this allowance
is based on the assumption that the broad objection has given the district court
the opportunity to consider all possible problems with the application of the
sentencing statute. Cf. United States v. Narez-Garcia, 819 F.3d 146, 150 n.2
(5th Cir. 2016), cert. denied, 137 S. Ct. 175 (U.S. Oct. 3, 2016). The objection
here did no such thing.
      Indeed, this case is similar to the situation presented to the panel in
United States v. Narez-Garcia. In that case, Narez-Garcia had objected to an
eight-level sentence enhancement on the grounds that his prior Arkansas
conviction for aggravated assault did not qualify as a conviction for an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F).          819 F.3d at 148.
Specifically, he argued that because the Arkansas offense does not have the
use of force as an element or involve a substantial risk that force will be used
against a person or property, it was not a crime of violence. Id. at 148-49. On
appeal, by contrast, he argued that the district court erred in applying the
eight-level enhancement because his Arkansas conviction did not result in a
term of imprisonment of at least one year and therefore fell outside of 8 U.S.C.
§ 1101(a)(43)(F)’s definition of an aggravated felony. Id. at 149. Observing
that “[a]n argument is preserved when the basis for objection presented below
gave the district court the opportunity to address the gravamen of the
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                                  No. 15-41496
argument presented on appeal,” id. at 149 (quoting Garcia-Perez, 779 F.3d at
281-82, the panel concluded: “Because Narez-Garcia did not object to the
enhancement on the specific ground he now raises on appeal—the one-year-
term-of-imprisonment requirement—and instead raised only his use-of-force
argument, this court’s review is limited to plain error,” id. at 150 (citing United
States v. Juarez, 626 F.3d 246, 253-54 (5th Cir. 2010)).
      We must reach the same conclusion here. At the sentencing hearing,
defense counsel objected to the application of the U.S.S.G. § 2L1.2
enhancement on the grounds that the Illinois second degree murder statute is
broader than the typical definition of second degree murder “because of the use
of . . . ‘negligent or accidentally causing the death of the individual killed.’”
This was the only issue raised before the district court; the court was not
apprised of any argument relating to the Illinois statute’s use of “great bodily
harm” and thus did not have the opportunity to take evidence or receive
argument on that issue. See Wikkerink, 841 F.3d at 331. Because Hernandez-
Morales did not object to the U.S.S.G. § 2L1.2 enhancement on the specific
ground he raises before us, our review is limited to plain error. Narez-Garcia,
819 F.3d at 150.
                                        III
      To demonstrate plain error, Hernandez-Morales bears the burden of
establishing that there is a clear or obvious error that affects his substantial
rights. United States v. Escalante-Reyes, 689 F.3d 415, 422-23 (5th Cir. 2012)
(en banc). An error is not clear or obvious if it is subject to reasonable dispute.
Puckett v. United States, 556 U.S. 129, 136 (2009). Even if he demonstrates
that his substantial rights are affected, this court has the discretion to correct
the error only if it seriously affects the fairness, integrity, or public reputation
of the judicial proceedings. Id. at 134-35.


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                                No. 15-41496
      As previously discussed, Hernandez-Morales argues that the district
court erred in applying the § 2L1.2 enhancement based on his prior Illinois
conviction for second-degree murder; specifically, he asserts that the Illinois
statute permits conviction for causing death while knowingly creating a risk of
great bodily harm and thus is broader than the generic definitions of murder
and manslaughter. However, we have never before considered whether the
Illinois first degree murder statute is broader than the enumerated offense of
murder, nor have we even adopted a definition of generic murder.           “We
ordinarily do not find plain error when we ‘have not previously addressed’ an
issue.” United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (quoting
United States v. Lomas, 304 F. App’x 300, 301 (5th Cir. 2008)). In the absence
of any authority on point, we therefore decline to conclude that any error
committed by the district court was plain.
                                      IV
      Because Hernandez-Morales failed to preserve the specific argument he
raises before us, our review is limited to plain error. Finding no plain error,
we AFFIRM the judgment of the district court. The Government’s motion to
supplement the record on appeal is DENIED as moot.




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