United States v. Daniel Yanes Hernandez ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12336 ELEVENTH CIRCUIT
DECEMBER 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-80125-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL YANES HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 10, 2009)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Daniel Yanes Hernandez appeals his conviction and sentence for using with
intent to defraud one or more access devices, in violation of 18 U.S.C.
§ 1029(a)(1). He raises four arguments on appeal, namely whether (1) the
magistrate judge plainly erred in accepting his guilty plea because the judge failed
ensure Hernandez understood the consequences of his plea as required by Rule 11
of the Federal Rules of Criminal Procedure; (2) the district court clearly erred in
declining to apply a minor-role reduction at sentencing, pursuant to U.S.S.G.
§ 3B1.2(b), because Hernandez was neither an organizer nor a major participant in
the scheme; (3) the district court clearly erred in applying a two-level enhancement
at sentencing, pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(i), based on the number of
victims involved in the offense, because evidence concerning the number of
victims attributed to Hernandez was speculative; and (4) his sentence was
substantively unreasonable.
I.
Hernandez contends his conviction and sentence must be vacated because
they were obtained pursuant to an invalid guilty plea. When a defendant fails to
challenge the validity of his guilty plea before the district court, we review for
plain error. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).
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“Rule 11 imposes upon a district court the obligation and responsibility to
conduct an inquiry into whether the defendant makes a knowing and voluntary
guilty plea.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.
2000). “When accepting a guilty plea, a court must address three core concerns
underlying Rule 11: (1) the guilty plea must be free from coercion; (2) the
defendant must understand the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” Id. (quotations
omitted).
The record reflects the magistrate judge fully complied with Rule 11 and the
three core concerns were addressed. The magistrate judge ensured Hernandez’s
plea was free from coercion when she elicited from Hernandez that (1) his plea was
made freely and voluntarily; (2) no one had promised him anything not contained
in the plea agreement; and (3) he had not been threatened, coerced, forced into
pleading guilty. The magistrate judge further ensured Hernandez understood the
nature of the charges against him by finding him competent to understand the
proceedings and having the Government go over the facts of the fraud and the
elements of the crime. In addition, the magistrate judge ensured Hernandez
understood the consequences of pleading guilty. The magistrate judge addressed
the constitutional rights Hernandez was relinquishing by pleading guilty, went over
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the maximum penalties, noted an advisory Guidelines range would be calculated
pursuant to the Sentencing Guidelines, and informed Hernandez the district court
could impose a sentence higher or lower than the applicable Guidelines range, but
not greater than the statutory maximum sentence.
Contrary to Hernandez’s argument, the magistrate judge was not obligated
under Rule 11 to do any more than this. As to his argument the magistrate judge
failed to explain the difference between a magistrate judge and an Article III judge
or the significance of having magistrate judge take his plea, there is no Supreme
Court or Eleventh Circuit case holding such an explanation is required, and, thus,
there can be no plain error in this regard. See United States v. Aguillard, 217 F.3d
1319, 1321 (11th Cir. 2000) (“[W]here neither the Supreme Court nor this Court
has ever resolved an issue, and other circuits are split on it, there can be no plain
error in regard to that issue.”). Regarding his arguments the magistrate judge only
recited the rights at stake and failed to inquire as to his understanding of the
consequences of his plea or the meaning of particular “constitutional terms” used,
there is no dispute the magistrate judge apprised Hernandez of all the rights
enumerated in Rule 11, and the record shows Hernandez confirmed his
understanding of these rights. See United States v. Downs-Morgan, 765 F.2d 1534,
1537 (11th Cir. 1985) (stating “[t]he trial judge is obligated . . . to personally
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disclose only those consequences of a guilty plea specifically set forth in [Rule
11]”). As to Hernandez’s argument the magistrate judge failed to ascertain
whether his attorney interpreted the plea agreement from English into Spanish
properly or was qualified to do so, Hernandez has not pointed to any facts
demonstrating he failed to understand the terms of his plea agreement. Cf.
Hernandez-Fraire, 208 F.3d at 951 (finding plain error where the district court
failed to identify enumerated rights and the record of the plea hearing showed that
defendant did not understand his rights as he stated explicitly, “I don’t know what
my rights are”). With respect to his argument the magistrate judge violated Rule
11 by failing to explain the Guidelines, the difference between the Guidelines and
the statutory maximum, or the application of possible enhancements to his
Guidelines calculations, the magistrate judge was only required to impress upon
Hernandez the importance the Guidelines might play at sentencing, which she did.
See United States v. Mosley, 173 F.3d 1318, 1328 (11th Cir. 1999) (stating a
district court complies with Rule 11 when it elicits a defendant is aware of the
Guidelines and the defendant has discussed the effect of the Guidelines with his
attorney).
To the extent Hernandez asserts the irregularities with his sentence appeal
waiver rendered his guilty plea invalid, his argument is without merit. The record
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shows the magistrate judge made an explicit finding the waiver was knowingly and
voluntarily made after properly advising Hernandez regarding the waiver.
Moreover, Hernandez has not shown that, but for his allegations of error, he would
not have entered his guilty plea. See United States v. Dominguez Benitez, 124 S.
Ct. 2333, 2340 (2004) (“[A] defendant who seeks reversal of his conviction after a
guilty plea, on the ground that the district court committed plain error under
Rule 11, must show a reasonable probability that, but for the error, he would not
have entered the plea.”). Rather, the record shows Hernandez received substantial
benefits in exchange for his guilty plea, in that the Government dismissed the
conspiracy count against him and agreed not to oppose his request for a sentence at
the low end of his Guidelines range. Thus, Hernandez’s plea was valid, and we
affirm his conviction.
II.
Hernandez next contends the district court erred in failing to grant him a
minor-role reduction because he was not a major participant in the credit card fraud
scheme.1 We review a district court’s decision whether to grant a minor-role
reduction for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc).
1
The Government concedes Hernandez’s sentence was the result of an upward variance
and declines to enforce the appeal waiver against Hernandez.
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A district court is authorized to reduce a defendant’s offense level by two if
the defendant establishes he was a “minor participant” in the crime by a
preponderance of the evidence. U.S.S.G. § 3B1.2(b); De Varon, 175 F.3d at 939.
A minor participant is one “who is less culpable than most other participants, but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b), comment.
(n.5). For a sentencing court to determine whether to grant a minor-role reduction,
it considers two principles. De Varon, 175 F.3d at 940. First, the court must
measure the defendant’s role against the relevant conduct for which he is being
held accountable. Id. “Only if the defendant can establish that [he] played a
relatively minor role in the conduct for which [he] has already been held
accountable–not a minor role in any larger criminal conspiracy–should the district
court grant” a minor-role reduction. Id. at 944. The second prong of the
minor-role-reduction analysis permits a district court, “where the record evidence
is sufficient, . . . [to] measure the defendant’s conduct against that of other
participants in the criminal scheme attributed to the defendant.” Id. at 934.
The district court did not clearly err in finding Hernandez was not entitled to
a minor-role reduction. The district court found the amount of loss attributable to
Hernandez was a “significant figure” “generated over a significant period of time,”
and “put him in league with some of [his codefendants].” The district court further
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found Hernandez had completed over 30 fraudulent transactions, which spanned
the full 6 months of his involvement in the scheme. These findings are supported
by the record, which shows Hernandez participated in over 30 transactions and was
responsible for in $58,917 losses, an amount which was substantially less than 2 of
his codefendants and substantially greater than 2 others. Thus, Hernandez played
an important role in his relevant conduct, and he was not less culpable than most
other participants in the scheme. Accordingly, we affirm as to this issue.
III.
Hernandez asserts the district court erred in applying a two-level
enhancement per U.S.S.G. § 2B1.1(b)(2)(A)(i) because there was no evidence or
testimony supporting the contention he was responsible for ten or more victims.
The Government concedes the district court erred in applying the two-level
enhancement because the court failed to connect the victims to the actual losses
they sustained.
Under section 2B1.1 of the Sentencing Guidelines, if the offense involved
ten or more victims, the offense level is increased by two. “Victim” is defined as
“any person who sustained any part of the actual loss,” and “person” includes
individuals and corporations. U.S.S.G. § 2B1.1, comment. (n.1). The number of
victims depends on the loss calculation, specifically the actual loss, and, thus, a
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sentencing court must connect the number of victims to the actual loss. See United
States v. Foley, 508 F.3d 627, 634 (11th Cir. 2007) (holding the district court erred
in calculating the number of victims because it did not make an independent
finding of the loss amount and did not connect the number of victims to the loss
calculation).
The court identified the loss attributed to Hernandez as $58,917 for purposes
of U.S.S.G. § 2B1.1(b)(1) and found there were more than ten victims based on
“the number of transactions” and the practices of credit card companies in
allocating losses on verifiable and non-verifiable transactions. However, the court
did not make any effort to connect the number of victims to the $58,917 loss
calculation. Thus, the district court clearly erred in its finding of the number of
victims. As the Government points out, the district court’s error in calculating the
number of victims was not harmless. See Fed. R. Crim. P. 52(a) (stating “[a]ny
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded”). If the district court had not applied the 2-level increase, per
§ 2B1.1(b)(2)(A)(i), for 10 or more victims, Hernandez’s offense level would have
been 9 and his corresponding Guidelines range would have been 8 to 14 months,
rather than 12 to 18 months. Notably, there is no indication in the record the
district court would have imposed the same sentence regardless of the
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enhancement’s application. See United States v. Keene, 470 F.3d at 1347, 1349
(11th Cir. 2006) (holding a misapplication of the Guidelines is harmless error when
the ultimate sentence is reasonable in view of the § 3553(a) factors and the district
court states it would have imposed the same sentence regardless of its application
of the relevant Guidelines provision).
Accordingly, we vacate and remand as to this issue. On remand, the district
court should reconsider its application of § 2B1.1(b)(2)(A)(i) and, in doing so,
connect the victims to the actual losses they sustained. Because remand is
necessary for the district court to correct its procedural error with respect to its
application of § 2B1.1(b)(2)(A)(i), we decline to address the substantive
reasonableness of Hernandez’s sentence.
AFFIRMED in part; VACATED and REMANDED in part.
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