United States v. Hernandez , 201 F. App'x 789 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1027
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Jennifer A. Appleyard on brief for appellant.
Mark E. Howard, Assistant U.S. Attorney, and Thomas P.
Colantuono, United States Attorney, on brief for appellee.
October 27, 2006
Per Curiam. Defendant-appellant José Hernandez
("Hernandez") appeals from his 188-month within-guidelines
sentence. As grounds for appeal, he argues that the district court
did not adequately explain the reasons for the sentence in terms of
the factors set forth in 18 U.S.C. § 3553(a) and that the sentence
imposed was unreasonably high in light of those factors,
particularly given his cooperation with the government in
prosecuting and investigating other crimes.1 Notably, he does not
argue that he was entitled to a downward departure below the
statutory minimum of 180 months2 under U.S.S.G. § 5K1.1 or 18
U.S.C. § 3553(e). Thus, what is at issue here is the eight-month
difference between the statutory minimum and the sentence imposed.
As we have previously stated in the wake of United States
v. Booker, 543 U.S. 220 (2005), "Reasonableness entails a range of
potential sentences, as opposed to a single precise result."
United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006).
Consequently, "appellate review of a district court's post-Booker
sentencing decision focuses on whether the court has 'adequately
explained its reasons for varying or declining to vary from the
1
At the end of his brief, Hernandez makes the further claim
that "he was denied his constitutional rights to due process as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the
Constitution of the United States." That conclusory statement,
without further development, is insufficient to preserve any due
process claim for our consideration. United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
2
See 18 U.S.C. §§ 922(a)(1), 924(e).
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guidelines and whether the result is within reasonable limits.'"
Dixon, 449 F.3d at 204 (quoting United States v. Scherrer, 444 F.3d
91, 93 (1st Cir. 2006) (en banc)). Conversely, "in attacking a in-
guideline-range sentence as excessive, a defendant . . . usually
ha[s] to adduce fairly powerful mitigating reasons and persuade us
that the district judge was unreasonable in balancing pros and cons
despite the latitude implicit in saying that a sentence must be
'reasonable.'" United States v. Navedo-Concepción, 450 F.3d 54, 59
(1st Cir. 2006); see also United States v. Smith, 445 F.3d 1, 4
(1st Cir. 2006).
The explanation provided by the district court here
easily passes muster. In sentencing Hernandez to the bottom of the
applicable guideline range, rather than eight months less, the
district court expressly considered each of the mitigating factors
proffered by Hernandez--his cooperation with state and federal law
enforcement officials in their investigation and prosecution of
other crimes, his young age when he committed the prior offenses on
which his armed career criminal conviction was based, and his
addiction to cocaine--but concluded that they were outweighed by
other relevant factors. In particular, the court found the within-
guidelines sentence to be appropriate based on the nature of his
offense, which involved not merely possessing a firearm but
brandishing it to terrorize others and holding it to someone's
chest to steal cocaine, and the seriousness of his criminal record,
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which included two other violent felonies and a serious drug-
trafficking offense.
The court's reasons for rejecting Hernandez's arguments
for a more lenient sentence are apparent from the sentencing
transcript. As to Hernandez's cooperation, the court stated that
Hernandez "ha[d] already received a substantial benefit from that
cooperation," referring to the government's dismissal of two other
counts and a pending supervised release violation, which would have
increased his sentence by at least 84 months.3 The court took
into account not only Hernandez's cooperation in a successful
murder prosecution, which was the quid pro quo for the dismissal of
the remaining counts, but also his further attempts to cooperate in
investigating other crimes. The court declined to give him credit
for those other attempts both because the government did not deem
them helpful and because they admittedly involved further criminal
activity on his part.
As to Hernandez's plea for leniency on account of his
young age when he committed his prior offenses, the court found
that argument "disingenuous" since there was no long gap between
his prior offenses and the offense of conviction, which was
committed while he was still on supervised release for his most
3
One of the dismissed counts--for possession and brandishing
of a firearm in furtherance of a drug-trafficking offense--carried
a mandatory minimum consecutive sentence of seven years. 18 U.S.C.
§ 924(c)(1)(D)(ii).
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recent prior offense. Indeed, the court noted that "[t]he only
explanation for him not committing other offenses [in the interim]
is that he's been in prison during all that time."
Finally, although the court recognized Hernandez's drug
addiction and need for treatment, it concluded that those factors
did not warrant a below-guidelines sentence. In reaching that
conclusion, the court was influenced by the fact that Hernandez had
falsely denied his addiction to avoid being placed in a substance
abuse treatment program while on supervised release for a prior
offense. The court did, however, address Hernandez's need for drug
treatment by recommending that he be permitted to participate in
the intensive drug education and treatment program while imprisoned
and requiring that he participate in a drug treatment program while
on supervised release.
We see nothing implausible about those explanations,
which are fully supported by undisputed facts, and find the
resulting sentence to be well within the realm of reasonableness.
Accordingly, we affirm. See 1st Cir. R. 27(c).
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