United States v. Hernandez-Serrano ( 2021 )

Case: 20-10485 Document: 00515880795 Page: 1 Date Filed: 05/28/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
May 28, 2021
No. 20-10485 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Saul Hernandez-Serrano,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-316-1
Before Jones, Costa and Duncan, Circuit Judges.
Per Curiam:*
Saul Hernandez-Serrano appeals a 60-month sentence of
imprisonment imposed following his guilty plea to illegal reentry, which the
district court ordered to run consecutively to an undischarged state sentence
for driving while intoxicated. Hernandez-Serrano argues that the district
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-10485
court erred by adopting and imposing a consecutive sentence. Because the
district court did not plainly err, we AFFIRM.
BACKGROUND
Section 3584 of title 18 provides that “[m]ultiple terms of
imprisonment imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a).
Although, as Hernandez-Serrano contends, the statute provides a default
rule for interpreting judgments that are silent on the issue, this court has
interpreted the statute to create a preference for imposing such sentences
consecutively. See United States v. Candia, 454 F.3d 468, 477 (5th Cir. 2006)
(Ҥ 3584 favors imposition of a consecutive sentence when the sentences are
imposed at different times.”).
The Sentencing Guidelines implement the statutory scheme set forth
in § 3584. See 28 U.S.C. § 994(a)(1)(D) (authorizing the Sentencing
Commission to devise Guidelines regarding “determination whether
multiple sentences to terms of imprisonment should be ordered to run
concurrently or consecutively”). Specifically, U.S.S.G. § 5G1.3 addresses
the imposition of a sentence on a defendant, like Hernandez-Serrano, who is
subject to an undischarged term of imprisonment at the time of sentencing.
Subsection (a) provides that if an offense is committed after sentencing for
another offense but before commencement of that sentence, the district court
“shall” impose a consecutive sentence. § 5G1.3(a). Under subsection (d),
in a case involving an undischarged term of imprisonment that is not covered
by the other subsections, a district court may impose the sentence
concurrently, partially concurrently, or consecutively to the undischarged
sentence. § 5G1.3(d). The comment to subsection (d) also directs the
district court, in applying subsection (d), to consider the 18 U.S.C. § 3553(a)
factors, the type and length of the undischarged sentence, the time remaining
on the undischarged sentence, and “[a]ny other circumstance relevant to the
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determination of an appropriate sentence for the instant offense.” U.S.S.G.
§ 5G1.3, cmt. (4)(A).
Hernandez-Serrano contends that, because the district court adopted
the PSR, it erroneously applied § 5G1.3(a), which calls for a consecutive
sentence, rather than (d), because the PSR used some of the language of (a),
including the word “shall,” although it cited (d). The relevant portion of the
PSR states: “Therefore, the sentence for the instant offense shall be imposed
to run consecutively to the undischarged term of imprisonment. U.S.S.G.
§ 5G1.3(d).” The parties agree that subsection (a) was inapplicable on the
facts, consequently, the question here is whether the court applied subsection
(a) erroneously or (d) correctly.
The Government argues that, although the PSR used the word
“shall,” as in subsection (a), the PSR properly cited and the district court
relied on subsection (d). According to the Government, subsection (d)
“must be read” with the commentary, which directs the district court to be
guided by factors including § 3584’s default rule that multiple terms of
imprisonment imposed at different times should run consecutively. Thus,
although the PSR’s use of the term “shall” was “imprecise,” the PSR did
not misrepresent the district court’s discretion under § 5G1.3 and the district
court did not plainly err.
DISCUSSION
As Hernandez-Serrano acknowledges, he did not raise this claim in
the district court and we thus review only for plain error. See Puckett v. United
States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To succeed on plain
error review, Hernandez-Serrano must show (1) an error, (2) that is clear or
obvious, and (3) that affected his substantial rights. See Puckett, 556 U.S. at
135, 129 S. Ct. 1423, 1429. If he can satisfy those three prongs, this court has
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the discretion to correct the error if it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. (alterations, internal
quotation marks, and citation omitted). We find neither “plain” error nor
an adverse effect on the appellant’s rights.
In determining whether the district court erroneously believed that a
consecutive sentence was mandatory, this court considers the record as a
whole. Beyond adopting the PSR in general terms, the district court gave no
indication at sentencing that the decision to impose the sentence
consecutively to the undischarged sentence was based on § 5G1.3(a).
Further, in contrast to at least two of the cases upon which Hernandez-
Serrano relies, United States v. Bowman, 634 F.3d 357, 362–63 (6th Cir. 2011);
United States v. Gibbs, 506 F.3d 479, 487–88 (6th Cir. 2007), the court did
not indicate a belief that a consecutive sentence was mandatory. The district
court instead specifically noted, at the sentencing hearing and in the
statement of reasons, the advisory nature of the Guidelines and the § 3553(a)
factors guiding the sentencing decision. In keeping with the application note
to U.S.S.G. § 5G1.3(d) and § 3553(a), the district court considered
Hernandez-Serrano’s history and characteristics, the need to deter criminal
conduct, and the need to protect the public from further crimes by
Hernandez-Serrano. 1 U.S.S.G. § 5G1.3, cmt. (4)(A). On balance, there is
1
This court’s decision in United States v. Lindsey, 969 F.3d 136, 143 (5th Cir. 2020),
cert. denied, 592 U.S. _(U.S. Feb. 22, 2021) (No. 20-6803), is helpful, although Lindsey had
arguably abandoned his claim of § 5G1.3(d) error. This court noted that, even if Lindsey
had not abandoned the issue, any error under § 5G1.3(d) as to the consecutive sentencing
would not be plain because the guidelines application note directed the court to consider
factors including § 3553(a) and any challenge to the weighing of those factors would not
provide a sufficient basis for reversal. Lindsey, 969 F.3d at 141, 143. In light of Lindsey, the
guidelines commentary, and the record, any error is not clear or obvious. See Lindsey,
969 F.3d at 143.
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No. 20-10485
no basis for a conclusion that the court “plainly” erred. See Puckett, 556 U.S.
at 135, 129 S. Ct. at 1429.
Moreover, Hernandez-Serrano fails to show that the alleged error
affected his substantial rights. See Puckett, 556 U.S. at 135, 129 S. Ct. at 1429.
The presumption of an effect on a defendant’s substantial rights in Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016), upon which
Hernandez-Serrano relies in his reply brief, is inapplicable here. Molina-
Martinez held that, absent additional evidence, courts will presume that an
error in calculating the guidelines range affected a defendant’s substantial
rights. Id. Hernandez-Serrano has shown no error in the calculation of his
guidelines range.
In addition, to show that a sentencing error affected his substantial
rights, Hernandez-Serrano must demonstrate a reasonable probability that
his sentence would have been different but for the error. See United States v.
Gozes-Wagner, 977 F.3d 323, 342 (5th Cir. 2020). He avers that it is at least
reasonably probable that the district court would have imposed a concurrent
sentence had it “properly analyzed” the guidelines, both because “[m]any
courts” would find a potential ten-year sentence too harsh for his offense and
because the district court also relied on an erroneously imposed additional
criminal history point in setting the sentence.
The law arguably favors a consecutive sentence where sentences are
imposed at different times, 18 U.S.C. § 3584; Candia, 454 F.3d at 477, but
§ 5G1.3(d) is agnostic as to whether a sentence should run concurrently,
partially concurrently, or consecutively. In comparison, § 5G1.3
recommends concurrent sentences when the undischarged sentence is for
conduct “relevant” to the offense for which the defendant is being
sentenced. § 5G1.3(b), (c). Hernandez-Serrano’s DWI convictions were not
relevant conduct to his illegal reentry offense. In fact, at sentencing, the
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No. 20-10485
district court considered the Hernandez-Serrano’s DWI convictions to
reflect a “pattern of endangering American society,” and specifically agreed
with the Government that it was “appropriate to be concerned about that.”
Additionally, the fact that the district court denied Hernandez-
Serrano’s request for a downward departure based on his time served in state
custody does not suggest a preference for a concurrent sentence but rather
the opposite. Further, as noted, the district court explained at sentencing
that the sentence as imposed served the § 3553(a) objectives of reflecting the
seriousness of the offense, providing just punishment, promoting respect for
the law, deterring future criminal conduct, and protecting the public. Against
these indicators, Hernandez-Serrano’s rhetoric that “[m]any courts” would
find his sentence overly harsh fails to show a reasonable probability of a
concurrent sentence absent the alleged error. See Gozes-Wagner, 977 F.3d at
342.
Finally, Hernandez-Serrano argues that the PSR should not have
allotted an extra criminal history point for a decade-old 2008 DWI sentence.
He acknowledges that any error as to the point was harmless, but contends
that, without it, he could have argued “that he only just barely falls in
category IV.” With or without the criminal history point, however, the 2008
DWI conviction further underscored the court’s concern about the danger
Hernandez-Serrano posed to the general public. United States v. Brantley,
537 F.3d 347, 350 (5th Cir. 2008) (finding the sentence reasonable because
the defendant’s “undisputed criminal history provides ample justification
for the sentence.”) There is no reasonable probability that, without the
criminal history point, the district court would have overlooked the prior
DWI offense. See Gozes-Wagner, 977 F.3d at 342.
For these reasons, the judgment of the district court is AFFIRMED.
6