IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41496

UNITED STATES OF AMERICA, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2017

Lyle W. Cayce

Clerk

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§ 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. 

 

1 We 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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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. HernandezMorales 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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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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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-yearterm-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 HernandezMorales 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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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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