United States v. Michael Hernandez , 262 F. App'x 211 ( 2008 )

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                                                           [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 11, 2008
No. 06-16075        THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-20340-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HERNANDEZ,
a.k.a. Shorty,
MANUEL A. PALACIO,
a.k.a. Manuel A. Palacios,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(January 11, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
After a jury trial, Michael Hernandez and Manuel Palacio were convicted
of conspiracy to take hostages, 18 U.S.C. § 1203(a); hostage taking, 18 U.S.C.
§ 1203(a); and carrying a firearm during and in relation to, and possessing a
firearm in furtherance of, a crime of violence, 18 U.S.C. § 924(c)(1)(A).
Hernandez was also convicted of firearm possession by a convicted felon, 18
U.S.C. § 922(g)(1). These charges arose from the second kidnapping of Jeffrey
Boatwright for ransom that Hernandez orchestrated in Miami. Hernandez appeals
his convictions, and both defendants appeal their sentences. Hernandez argues that
the district court erred when it declined to grant a mistrial, denied his motion for
judgment of acquittal, instructed the jury about coconspirator liability, declined to
grant a downward departure, and imposed an unreasonable sentence. Palacio and
Hernandez both argue that their sentence violates the Sixth Amendment of the
United States Constitution. We affirm.
Hernandez argues that the district court erred when it declined to grant a
mistrial after the government elicited testimony about the abuse that Boatwright
suffered at the hands of Hernandez during the first kidnapping. Although
Hernandez orchestrated two kidnappings of Boatwright, the charges in the
indictment involved only the second kidnapping. We disagree with Hernandez’s
2
argument that the admission of evidence about the first kidnapping required a
mistrial.
The district court initially refused to allow the government to introduce
evidence that Hernandez abused Boatwright during the first kidnapping, but it later
held that the probative value of the evidence outweighed its potential for prejudice.
The district court admitted the evidence after the defendants explained their theory
of the case: that Boatwright agreed to be kidnapped by Hernandez to obtain money
from his brother in law. An element of hostage taking is restraint of a person
“against the person’s will,” Chatwin v. United States,

326 U.S. 455

, 460,

66 S. Ct. 233

, 235 (1946), and evidence of abuse during the first kidnapping was probative
of this element.
A reasonable jury could infer that Boatwright would not willfully allow
himself to suffer the abuse that he endured earlier. The unpleasant details of the
abuse were not unduly prejudicial because the jury heard evidence of similar
mistreatment of Boatwright during the second kidnapping. Our review is for abuse
of discretion, United States v. Tampas,

493 F.3d 1291

, 1303 (11th Cir. 2007), and
the district court did not abuse its discretion by declining to grant a mistrial after
the jury heard this evidence.
Hernandez next argues that the district court should have granted his motion
3
for judgment of acquittal because the government failed to prove that Boatwright
was held against his will, but again we disagree. There was ample evidence that
the kidnapping was not staged and that Boatwright was held against his will.
Boatwright was tricked into entering the vehicle that Hernandez’s coconspirators
used to confine Boatwright at Hernandez’s direction. When police found
Boatwright, he was restrained and had visible injuries. Two of the participants in
the kidnapping testified that the kidnapping was not staged and that they watched
Boatwright endure beatings and distress during the kidnapping, which was
perpetrated with firearms and ammunition. A reasonable jury could have found
that this evidence “establishes guilt beyond a reasonable doubt.” United States v.
Browne,

505 F.3d 1229

, 1253 (11th Cir. 2007).
Hernandez also argues for the first time that, because the government did not
call Boatwright as a witness, Hernandez’s Confrontation Clause rights were
violated and the government was precluded from proving that Boatwright was held
against his will. This argument, which we evaluate under the plain error standard,
United States v. Mangaroo,

504 F.3d 1350

, 1353 (11th Cir. 2007), fails.
Hernandez does not identify any testimony from Boatwright that was admitted in
violation of the Confrontation Clause, and the decision by the government not to
call Boatwright did not prevent the government from satisfying its burden.
4
Hernandez next argues that the district court improperly instructed the jury
on the issue of coconspirator liability, but again we disagree. The district court
instructed the jury, based on United States v. Pinkerton, that a conspirator can be
guilty of a substantive offense committed by a coconspirator even though he did no
more than join the conspiracy, provided that the offense was reasonably
foreseeable and was committed in furtherance of the conspiracy.

328 U.S. 640

,
645,

66 S. Ct. 1180

, 1183 (1946). It was appropriate for the district court to give
the instruction because the evidence at trial established that the substantive offense
of kidnapping, which was perpetrated by others at the direction of Hernandez, was
the “goal of the conspiracy” and the use of firearms “facilitate[d] the
implementation” of that goal. United States v. Mothersill,

87 F.3d 1214

, 1217
(11th Cir. 1996).
Hernandez next argues that the district court erred when it declined to grant
a downward departure on the ground that Hernandez’s criminal history category
substantially overrepresents the seriousness of his criminal history. U.S.S.G. §
4A1.3(b). We cannot consider this argument. Because the district court
recognized its authority to depart downward, we lack jurisdiction to review the
discretionary decision of the district court not to do so. See United States v.
Winingear,

422 F.3d 1241

, 1245 (11th Cir. 2005); United States v. Angel-Guzman,
5

506 F.3d 1007

, 1017 (10th Cir. 2007).
Hernandez also argues that his sentence was unreasonable, but we disagree.
The advisory Sentencing Guideline range called for a term of imprisonment from
360 years to life consecutive with a mandatory term of 84 months of
imprisonment. The district court imposed a sentence below the advisory
Guideline range—408 months of imprisonment.
We have explained that our “[r]eview for reasonableness is deferential,”
United States v. Talley,

431 F.3d 784

, 788 (11th Cir. 2005), and Hernandez does
not explain how the district court abused its discretion by selecting his sentence.
The district court considered the relevant sentencing factors, see 18 U.S.C. §
3553(a), and counsel’s arguments for leniency in the light of Hernandez’s age,
childhood, lack of education, illiteracy, family responsibilities, and relative youth
when his criminal history began. Nothing in the record suggests that Hernandez’s
sentence, which was below the advisory Guidelines range, was unreasonably high.
Finally, Hernandez and Palacio both argue that the district court violated
their Sixth Amendment rights under Apprendi v. New Jersey,

530 U.S. 466

, 120 S.
Ct. 2348 (2000), when the court imposed a mandatory and consecutive sentence of
imprisonment for 84-months, 18 U.S.C. § 924(c)(1)(A)(ii), based on a finding by
the court that a firearm was “brandished.” The Supreme Court rejected this
6
argument in Harris v. United States: “[T]he federal provision at issue, 18 U.S.C. §
924(c)(1)(A)(ii), is constitutional. Basing a 2-year increase in the defendant’s
minimum sentence on a judicial finding of brandishing does not evade the
requirements of the Fifth and Sixth Amendments.”

536 U.S. 545