IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41437

UNITED STATES OF AMERICA, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

November 9, 2017

Lyle W. Cayce

Clerk

 Case: 15-41437 Document: 00514231655 Page: 1 Date Filed: 11/09/2017
No. 15-41437

2

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.

 Case: 15-41437 Document: 00514231655 Page: 2 Date Filed: 11/09/2017
No. 15-41437

3

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 postbooker 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.

 Case: 15-41437 Document: 00514231655 Page: 3 Date Filed: 11/09/2017
No. 15-41437

4

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 

 Case: 15-41437 Document: 00514231655 Page: 4 Date Filed: 11/09/2017
No. 15-41437

5

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).

 Case: 15-41437 Document: 00514231655 Page: 5 Date Filed: 11/09/2017
No. 15-41437

6

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 seconddegree assault conviction as a “crime of violence.” Thus, we affirm.

A. Framework for Determining Whether Kentucky’s SecondDegree 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).

 Case: 15-41437 Document: 00514231655 Page: 6 Date Filed: 11/09/2017
No. 15-41437

7

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 

 Case: 15-41437 Document: 00514231655 Page: 7 Date Filed: 11/09/2017
No. 15-41437

8

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

 Case: 15-41437 Document: 00514231655 Page: 8 Date Filed: 11/09/2017
No. 15-41437

9

(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 seconddegree 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 

 Case: 15-41437 Document: 00514231655 Page: 9 Date Filed: 11/09/2017
No. 15-41437

10

‘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 

 Case: 15-41437 Document: 00514231655 Page: 10 Date Filed: 11/09/2017
No. 15-41437

11

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 

 Case: 15-41437 Document: 00514231655 Page: 11 Date Filed: 11/09/2017
No. 15-41437

12

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).

 Case: 15-41437 Document: 00514231655 Page: 12 Date Filed: 11/09/2017