Case: 09-40872 Document: 00511366098 Page: 1 Date Filed: 01/31/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 31, 2011
No. 09-40872 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE GUADALUPE HERNANDEZ-GALVAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before DeMOSS, BENAVIDES, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Jose Guadalupe Hernandez-Galvan appeals his judgment of conviction and
sentence for illegal reentry in violation of 18 U.S.C. § 1326. Specifically, he
challenges the district court’s conclusion that his prior North Carolina conviction
for attempted common-law robbery is for a “crime of violence,” requiring a 16-
level increase under the Sentencing Guidelines. Because Hernandez raises only
a theoretical possibility—rather than a realistic probability—that the North
Carolina offense would criminalize conduct falling outside the generic,
contemporary definition of attempted robbery, we AFFIRM.
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No. 09-40872
I.
Hernandez was charged in a multi-count indictment with conspiracy to
possess with intent to distribute marijuana, aiding and abetting and possession
with intent to distribute marijuana, and having been found unlawfully present
in this country following a prior deportation, which was subsequent to an
aggravated felony conviction. A jury acquitted Hernandez of the two drug
offenses. Hernandez then pleaded guilty to the illegal reentry count without
the benefit of a plea agreement.
In preparation for Hernandez’s sentencing, the probation officer compiled
a Presentence Investigation Report. The report assigned Hernandez a base
offense level of eight pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added
pursuant to § 2L1.2(b)(1)(A)(ii) based on Hernandez’s prior North Carolina
conviction for attempted common-law robbery. After receiving a three-level
reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility,
Hernandez had a total offense level of 21. Hernandez scored a total of nine
criminal history points and was placed in Criminal History Category IV. Thus,
the report concluded that Hernandez’s advisory sentencing range under the
Guidelines should be 57 to 71 months. U.S.S.G. Ch. 5, Pt. A.
Hernandez objected to the report, in pertinent part, on the grounds that
the 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) was not warranted
because his North Carolina conviction for attempted common-law robbery did
not meet the Guidelines’s definition of a “crime of violence.” The district court
overruled Hernandez’s objection. In addition, the district court found by a
preponderance of the evidence that Hernandez had committed the offenses that
he had been acquitted of at trial. The district court sentenced Hernandez to an
above-Guidelines sentence of 84 months of imprisonment, as well as a three-
year term of supervised release. This appeal followed.
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II.
In reviewing the reasonableness of a defendant’s sentence, we “must first
ensure that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)). The district court’s “interpretation or
application of the Sentencing Guidelines” is reviewed de novo, while its factual
findings are reviewed for clear error. Id. Thus, this court considers de novo
whether a defendant’s prior conviction qualifies as a “crime of violence” within
the meaning of the Guidelines. United States v. Sanchez-Ruedas, 452 F.3d 409,
412 (5th Cir. 2006).
A defendant convicted of illegal reentry who also has a prior conviction for
a “crime of violence” receives a 16-level upward adjustment under the
Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined in the
application notes:
“Crime of violence” means any of the following offenses under
federal, state, or local law: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses . . . , statutory rape, sexual
abuse of a minor, robbery, arson, extortion, extortionate extension
of credit, burglary of a dwelling, or any other offense under federal,
state, or local law that has as an element the use, attempted use,
or threatened use of physical force against the person of another.
Id. § 2L1.2 cmt. n.1(B)(iii). In other words, an offense qualifies as a crime of
violence if it falls within an enumerated category or within the physical-force
provision. Inchoate variants of these offenses also qualify: “Prior convictions of
offenses counted under subsection (b)(1) include the offenses of aiding and
abetting, conspiring, and attempting, to commit such offenses.” Id. § 2L1.2 cmt.
n.5.
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To determine whether an offense falls within an enumerated category,
this court employs a “common sense approach” based on the “generic,
contemporary meaning” of the terms used in the Guidelines. United States v.
Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008) (internal quotation marks
omitted). As a guide to contemporary meaning, the court consults such sources
as “the Model Penal Code, Professors LaFave’s and Scott’s treatises, modern
state codes, and dictionaries.” United States v. Fierro-Reyna, 466 F.3d 324, 327
(5th Cir. 2006). If the prior offense of conviction sweeps more broadly than this
generic definition, that conviction does not fall within the enumerated category,
regardless of the label a state attaches to the underlying offense. See Moreno-
Florean, 542 F.3d at 449. The mere theoretical possibility that the two
definitions might lead to different outcomes is insufficient, however:
[I]n our view, to find that a state statute creates a crime outside the
generic definition of a listed crime in a federal statute requires
more than the application of legal imagination to a state statute’s
language. It requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that
falls outside the generic definition of a crime. To show that realistic
probability, an offender, of course, may show that the statute was
so applied in his own case. But he must at least point to his own
case or other cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner for which he argues.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
To determine whether an offense falls within the physical-force provision,
the court employs a more “formalistic, element-by-element approach.” United
States v. Carbajal-Diaz, 508 F.3d 804, 808 (5th Cir. 2007). This analysis focuses
on the “elements of the offense, rather than the facts underlying the conviction.”
Moreno-Florean, 542 F.3d at 449.
Under either approach, however, if the statute defining the offense of
conviction “contains a series of disjunctive elements, this court may look beyond
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the statute to certain records made or used in adjudicating guilt to determine
which subpart of the statute formed the basis of the conviction.” Id. “These
records are generally limited to the charging document, written plea agreement,
transcript of the plea colloquy, and any explicit factual findings by the trial
judge to which the defendant assented.” United States v. Murillo-Lopez, 444
F.3d 337, 340 (5th Cir. 2006) (internal quotation marks omitted).
III.
As Hernandez concedes, this court has already decided that common-law
robbery under North Carolina law qualifies as a “crime of violence” under the
enumerated category of robbery.1 Even so, he argues that attempted common-
law robbery does not qualify because North Carolina’s courts have interpreted
attempt liability more broadly than its generic, contemporary meaning. The
government counters that any difference is merely semantic and that, in
practice, North Carolina applies their attempt standard in conformity with the
modern approach. This court confronted a similar question in United States v.
Ellis,2 564 F.3d 370, 378 (5th Cir. 2009), but declined to answer it on plain-error
review. In order to resolve this question, we must first determine the generic,
1
North Carolina defines robbery as “the felonious, non-consensual taking of money or
personal property from the person or presence of another by means of violence or fear.” State
v. Parker, 369 S.E.2d 596, 600 (N.C. 1988). In an unpublished opinion, this court defined the
generic offense of robbery as “aggravated larceny, containing at least the elements of
misappropriation of property under circumstances involving [immediate] danger to the
person.” United States v. Moore, 223 F. App’x 422, 423 (5th Cir. 2007) (per curiam)
(unpublished) (alteration in original) (internal quotation marks omitted). Utilizing this
generic definition, the court determined that the North Carolina offense was substantially
similar to the enumerated offense of robbery and, therefore, a “crime of violence.” Id. at 424.
2
Although Ellis involved interpretation of “crime of violence” under U.S.S.G. § 4B1.2,
rather than § 2L1.2, the two sections define the term similarly. Both sections identify robbery
as an enumerated category and both contain a physical-force provision, but § 4B1.2 adds an
additional catch-all provision for conduct involving use of explosives or which, “by its nature,
presented a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2 cmt. n.1.
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contemporary meaning of attempt, and then compare it with North Carolina’s
definition of attempt.
A.
To avoid punishing bad thoughts, attempt liability has long required that
the defendant have taken “some act . . . towards carrying out the [criminal]
intent.” United States v. Resendiz-Ponce, 549 U.S. 102, 106 (2007). “Precisely
what kind of act is required,” however, is not easily determined from examining
“the language which has traditionally been used by courts and legislatures.”
2 Wayne R. LaFave, Substantive Criminal Law § 11.4(a), at 218 (2d ed. 2003).
The traditional phrases offer little guidance as to where the line is to be drawn
between attempt and mere criminal intent: “a step toward the commission of
the crime”; “an act in part execution of the intent”; “a direct movement toward
the commission of the offense”; “the commencement of the consummation”; or
“some appreciable fragment of the crime.” Id. § 11.4(a), at 219 (collecting cases).
The modern trend is a shift toward the “substantial step” test from the Model
Penal Code, which is now the majority view among the states and federal
courts, including the Fifth Circuit. Id. § 11.4(e), at 226; see also Sui v.
Immigration & Naturalization Serv., 250 F.3d 105, 116 (2d Cir. 2001) (noting
that the Model Penal Code test is “the most commonly used ‘attempt’ definition
today”). This “substantial step” test thus represents the generic, contemporary
act requirement for attempt liability.
The Model Penal Code’s “substantial step” approach asks whether a
person “purposely does or omits to do anything that, under the circumstances
as he believes them to be, is an act or omission constituting a substantial step
in a course of conduct planned to culminate in his commission of the crime.”
Model Penal Code § 5.01(1)(c). The act or omission, moreover, must be “strongly
corroborative of the actor’s criminal purpose.” Id. § 5.01(2). Use of the phrase
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“substantial step” suggests “that the conduct must be more than remote
preparation.” United States v. Mandujano, 499 F.2d 370, 377 (5th Cir. 1974).
Thus, because the objective act must independently “evidence commitment to
the criminal venture,” requiring a substantial step “prevents the conviction of
persons engaged in innocent acts on the basis of a mens rea proved through
speculative inferences, unreliable forms of testimony, and past criminal
conduct.” United States v. Oviedo, 525 F.2d 881, 885 (5th Cir. 1976).
North Carolina has not codified the crime of attempt, but the Supreme
Court of North Carolina has defined its elements: “(1) the intent to commit the
substantive offense, and (2) an overt act done for that purpose which goes
beyond mere preparation, but (3) falls short of the completed offense.” State v.
Miller, 477 S.E.2d 915, 921 (N.C. 1996). In a frequently quoted passage, the
court further explained the state’s “overt act” requirement:
In order to constitute an attempt, it is essential that the defendant,
with the intent of committing the particular crime, should have
done some overt act adapted to, approximating, and which in the
ordinary and likely course of things would result in the commission
thereof. Therefore, the act must reach far enough towards the
accomplishment of the desired result to amount to the
commencement of the consummation. It must not be merely
preparatory. In other words, while it need not be the last
proximate act to the consummation of the offense attempted to be
perpetrated, it must approach sufficiently near to it to stand either
as the first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are made.
Id. (citing State v. Price, 184 S.E.2d 866, 869 (N.C. 1971)). In State v. Bell, the
court noted that “whenever the design of a person to commit a crime is clearly
shown, slight acts in furtherance of the design will constitute an attempt.” 316
S.E.2d 611, 616 (N.C. 1984). Although Bell has never been overruled, only one
other North Carolina case, from the intermediate appellate court, has repeated
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the “slight acts” language. See State v. Henderson, 642 S.E.2d 509, 514 (N.C.
Ct. App. 2007).
Nevertheless, and contrary to the government’s suggestion, the “slight
acts” language in Bell does not appear to be an aberration in North Carolina’s
attempt jurisprudence. Although the quoted language appears in only two
cases, it is consistent with other discussions of the state’s overt act requirement.
Bell begins by reciting the elements of attempt—the same familiar elements
discussed in Miller: “intent . . . and an overt act done for that purpose which
goes beyond mere preparation but falls short of the completed offense.” Bell,
316 S.E.2d at 616. Against this backdrop, Bell’s statement about the sufficiency
of even a slight act must necessarily refer to any slight act beyond mere
preparation. Even without consulting Bell, a reader could come to the same
conclusion by examining the discussion of the act requirement in Miller, quoted
above. Miller explains the act must not be “merely preparatory,” but may be
even the “first . . . step . . . after the preparations are made.” Miller, 477 S.E.2d
at 921. Therefore, under North Carolina’s precedents, any overt act, however
slight, beyond mere preparation satisfies the act requirement if it is done for the
purpose of committing the underlying offense.
B.
We now compare these two act requirements. As discussed, the state
requires any slight act beyond mere preparation. In contrast, the generic
contemporary test requires a substantial step, which this court has said
amounts to something more than mere preparation. See Mandujano, 499 F.2d
at 377. If the “something more” is merely a slight act, then the two tests are
essentially equivalent. At least one plausible reading of Mandujano suggests
that this is so, as the court recognized in Ellis. See Ellis, 564 F.3d at 374
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(noting that Mandujano “seems to equate the substantial step test with any act
that crosses the line from preparation to execution”).
On the other hand, the differing rationales underlying the two
formulations suggest that there might be a difference, at least in theory.
Interpreting the “substantial step” test, this court required that “the objective
acts performed, without any reliance on the accompanying mens rea, mark the
defendant’s conduct as criminal in nature.” Oviedo, 525 F.2d at 885. This
interpretation is consistent with the Model Penal Code’s requirement that the
act be “strongly corroborative of the actor’s criminal purpose.” In contrast, Bell
suggests that North Carolina’s act requirement exists primarily to cast
additional light on the actor’s mental state: “Because the reason for requiring
an overt act is that without it there is too much uncertainty as to what the
intent actually was, whenever the design of a person to commit a crime is
clearly shown, slight acts in furtherance of the design will constitute an
attempt.” Bell, 316 S.E.2d at 616 (internal quotation marks omitted). Thus, to
the extent the “substantial step” test requires an act that provides strong
evidence of the actor’s mental state, it might not criminalize some slight acts
that go beyond mere preparation, even where North Carolina would.
Even assuming that these differing rationales create a theoretical
distinction between a “substantial step” and a “slight act beyond mere
preparation,” however, Hernandez has failed to demonstrate that this difference
is significant as a practical matter. To establish the required “realistic
probability” of different outcomes, “he must at least point to his own case or
other cases in which the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193.
Hernandez has not identified even one North Carolina case that he believes
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would have been decided differently under the “substantial step” approach.3
Similarly, the facts of his own case do not fall outside the reach of the
“substantial step” test. The indictment for his prior North Carolina conviction
charges that he “unlawfully, willfully and feloniously did attempt to steal, take
and carry away another person’s property, United States currency, from the
person and presence [of a named individual], by means of an assault upon him
consisting of putting him in fear of bodily harm by the threat of violence.”4
Threatening violence in a person’s presence is surely a “substantial step”
toward robbing the individual—an act beyond mere preparation which strongly
corroborates the defendant’s criminal purpose.
Accordingly, we hold that, while Hernandez has certainly raised the
“theoretical possibility” that North Carolina’s attempted common-law robbery
offense would sweep more broadly than the generic, contemporary meaning of
the enumerated offense of attempted robbery, he has not shown a “realistic
probability” that it would do so.5 Id. Indeed, he has not even attempted to
3
The government, on the other hand, identifies a decision which, it claims,
demonstrates that North Carolina’s test is essentially applied in the same manner as the
“substantial step” test. In that decision, State v. Jacobs, 230 S.E.2d 550 (N.C. Ct. App. 1976),
the court reversed a defendant’s conviction for attempted robbery because it concluded that
the overt act requirement had not been met. The defendant had entered a hardware store and,
after standing in front of the cashier and staring for about a minute, adjusted his coat to
reveal a pistol in his waistband. Id. at 551. He did not threaten or attempt to use the gun,
or demand money or property from the cashier. Id. In overturning the conviction, the court
held that the “evidence raises a suspicion that defendant may have intended to commit a
robbery or other crime but falls short of showing an overt act in furtherance of an intent to
rob.” Id. at 551-52.
4
Hernandez argued before the district court that the indictment does not reflect what
he actually pleaded to under his plea agreement. He also claimed that his client was prepared
to testify that the offense did not involve any persons, but rather a closed store. He presented
no evidence to contradict the statements in the indictment, however. Moreover, he does not
raise this argument on appeal.
5
The Ninth Circuit reached a similar conclusion in United States v. Saavedra-
Velazquez, 578 F.3d 1103 (9th Cir. 2009) when considering whether California’s “slight acts”
requirement for attempt liability is broader than the modern “substantial step” test. In
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make such a showing. He does not discuss his own prior offense or identify any
state decision that applied North Carolina law in a manner inconsistent with
the “substantial step” test. Without such a showing, however, the definitions,
standing alone, are too similar to create a “realistic probability” of different
outcomes—especially in light of this court’s statements in Mandujano
suggesting that any act beyond mere preparation would amount to a substantial
step. See Ellis, 564 F.3d at 374. Thus, his prior North Carolina conviction for
attempted common-law robbery is an enumerated “crime of violence” under
U.S.S.G. § 2L1.2, and the district court’s Guidelines calculation was correct. In
light of this holding, we need not decide whether the conviction is a “crime of
violence” under the physical-force provision.
AFFIRMED.
deciding that it was not, that court noted that it had been “unable to identify—and Saavedra-
Velazquez [had] not cited—any cases in which the application of the California test is
inconsistent” with the “substantial step” test. Id. at 1108-09. In addition, the Ninth Circuit
has considered attempt offenses of several other states, and has found that all of them
correspond to the generic, contemporary meaning of attempt. See, e.g., United States v.
Sarbia, 367 F.3d 1079, 1082, 1086 (9th Cir. 2004) (considering Nevada’s “slight act” language);
United States v. Taylor, 529 F.3d 1232, 1234, 1237-38 (9th Cir. 2008) (considering Arizona’s
“any step” language).
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