United States v. Hernandez ( 2022 )

Case: 22-50263 Document: 00516456381 Page: 1 Date Filed: 09/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 1, 2022
No. 22-50263
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ricardo Hernandez, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
For the Western District of Texas
USDC No. 4:20-CR-505
Before King, Duncan, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Ricardo Hernandez pleaded guilty to transporting illegal aliens for
financial gain. At his original sentencing, the district court applied an
enhancement for intentionally or recklessly creating a risk of death or serious
bodily harm to another person and then sentenced Hernandez to twenty-
seven months of imprisonment. Hernandez appealed, and we vacated the
sentence because we held that the record before the district court at
sentencing did not support the enhancement. Without further instruction,
the matter was remanded for resentencing.
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On remand, the Government introduced additional evidence to
support the enhancement. Relying on the new evidence, the district court
again applied the enhancement and sentenced Hernandez to the same
sentence that he had received before. Hernandez appeals, arguing both that
the district court exceeded this court’s mandate by agreeing to hear new
evidence and that the new evidence introduced by the Government is still
insufficient to warrant imposition of the enhancement.
I
On the evening of November 5, 2020, Police apprehended Ricardo
Hernandez while he was transporting illegal aliens in his Cadillac Escalade.
Hernandez pleaded guilty to transporting aliens for financial gain in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). The Presentence Investigation
Report (PSR) prepared by the probation office recommended an
enhancement pursuant to United States Sentencing Guideline (U.S.S.G.)
§ 2L1.1(b)(6), which allows for an enhancement “[i]f the offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” This enhancement raised Hernandez’s offense
level by two levels. The PSR contained scant additional details to support
the offense. It stated only that there were “several occupants in the back seat
and rear cargo area” of Hernandez’s Escalade and that the occupants in the
rear cargo area were “laying on top of one another.”
At sentencing, Hernandez’s attorney did not object to the PSR,
including the § 2L1.1(b)(6) enhancement. The district court therefore
adopted the PSR, including the enhancement, and sentenced Hernandez to
twenty-seven months of imprisonment. Hernandez appealed, arguing that
the application of the § 2L1.1(b)(6) enhancement was plain error because the
record did not support the imposition of the enhancement. A panel of this
court agreed, holding that “[t]he operative facts—Hernandez’s carrying
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three passengers over his sport utility vehicle’s rated capacity, some of whom
were stacked unrestrained in the nonpassenger area of the vehicle—do not,
without more, suffice” to impose the § 2L1.1(b)(6) enhancement. United
States v. Hernandez, No. 21-50515, 2022 WL 576406, at *1 (5th Cir. Feb. 25,
2022). At the conclusion of the order, the panel stated that “we VACATE
and REMAND the case to the district court for resentencing.” Id.At resentencing, the district court agreed to hear additional evidence
from the Government regarding the § 2L1.1(b)(6) enhancement. The
Government called Andres Gonzalez, the officer who apprehended
Hernandez. Gonzalez testified that around 8:45 p.m. on November 5, 2020,
he pulled over Hernandez’s Escalade. He had noticed that “the vehicle was
swerving within its lane and at several times had crossed over the center lane
divider.” Hernandez and a woman were in the driver’s seat and passenger
seat, respectively. Another three aliens sat in the three seats behind them.
There were six aliens in the cargo area, who were unsecured and laying “with
their backs and heads up against the side panels of the vehicle.” Gonzalez
testified that they were “stacked in there pretty tight.” He further noted that
while he could open the glass part of the rear door, the rear door itself could
not be unlocked. Indeed, Gonzalez made numerous efforts to open the rear
door, including by using the keys and asking Hernandez to open the hatch
from the driver’s seat. Video evidence from Gonzalez’s body cam verifies
his testimony.
Based on this evidence, the district court again applied the
§ 2L1.1(b)(6) enhancement. The district court emphasized that it did not
“see an ability to exit [the vehicle] quickly, period.” The court also noted
that the passengers were “strewn about” in the cargo area and were not
secured with seatbelts. Finally, the district court was concerned that the
passengers were in “the care, custody, and control of that driver.”
Considering this evidence together, the district court applied the
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enhancement, identified the same Guidelines range as it had previously, and
sentenced Hernandez to the same sentence it had before: twenty-
seven months.
Hernandez appeals. He first argues that it was improper for the
district court to hear additional evidence related to the § 2L1.1(b)(6)
enhancement on remand, as that exceeded this court’s mandate and gave the
Government a “second bite at the apple.” Second, he argues that the
evidence presented by the Government still does not demonstrate that
application of the enhancement was proper. We address each argument in
turn.
II
We first address whether the district court exceeded our mandate by
hearing additional evidence on remand regarding the sentencing
enhancement. This inquiry involves both the law-of-the-case doctrine and
the mandate rule. “Under the law of the case doctrine, an issue of fact or law
decided on appeal may not be reexamined either by the district court on
remand or by the appellate court on a subsequent appeal.” United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002). “The mandate rule, which is a
corollary or specific application of the law of the case doctrine, prohibits a
district court on remand from reexamining an issue of law or fact previously
decided on appeal and not resubmitted to the trial court on remand.” United
States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (emphasis omitted). “We
review de novo a district court’s interpretation of our remand order,
including whether the law-of-the-case doctrine or mandate rule forecloses
any of the district court’s actions on remand.” Id. at 204 (emphases
omitted).
Our decision in United States v. Carales-Villalta, 617 F.3d 342 (5th Cir.
2010), is directly on point here. In that case, a defendant had pleaded guilty
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to illegal reentry following removal, and the district court enhanced his
sentence under § 2L1.2(b)(1)(C). See United States v. Carales-Villalta, 311 F.
App’x 727, 727 (5th Cir. 2009). The defendant appealed, and this court
acknowledged that the enhancement was erroneous. Id. As here, we vacated
the defendant’s sentence and remanded for resentencing. Id. at 728.
The district court then considered additional evidence on remand,
and based on this newly presented evidence, again applied the
§ 2L1.2(b)(1)(C) enhancement. See Carales-Villalta, 617 F.3d at 344. The
defendant appealed, making an identical argument to the one Hernandez
presses here—namely, that the district court exceeded this court’s mandate
and could not hear additional evidence related to the § 2L1.2(b)(1)(C)
enhancement.
We disagreed. We held that “[i]n the absence of a specific mandate
and in the interest of truth and fair sentencing, the district court may consider
any corrections and additions relevant to the issues addressed by this Court
on appeal.” Id. at 345. “Therefore, when the case is remanded for
resentencing without specific instructions, the district court should consider
any new evidence from either party relevant to the issues raised on appeal.”
Id. (emphasis added). We contrasted this with issues that were not raised on
appeal, which could not be considered (or reconsidered) on remand “due to
the passage of time and logistical considerations.” Id. We also noted that we
could “mandate a particular result or limit consideration to only particular
evidence on remand,” id., a path this court did not take in response to
Hernandez’s first appeal. Because Carales-Villalta is directly on point, it
controls and makes clear that the district court did not err by considering
additional evidence in support of the § 2L1.1(b)(6) enhancement on remand.
Hernandez attempts to distinguish Carales-Villalta by arguing that
there is a distinction between introducing additional evidence to “clarify” a
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record and introducing additional evidence to “establish” a fact not in
evidence. Hernandez suggests that Carales-Villalta dealt with the former
circumstance, and this case dealt with the latter. But Hernandez’s argument
points more to a semantic difference than a legal distinction, particularly
because, as here, in Carales-Villalta the Government had to introduce
additional evidence or the sentencing enhancement could not be properly
applied. Moreover, nothing in Carales-Villalta limits its holding to cases
where the Government is “clarifying” the record, rather than “establishing”
a record.
Hernandez also points to cases post-dating Carales-Villalta to argue
that the district court erred. It is true that in United States v. Chemical & Metal
Industries, Inc., 677 F.3d 750, 753 (5th Cir. 2012), we stated—in apparent
reliance on only a Second Circuit case and with no discussion of our binding
precedent in Carales-Villalta—that “[t]he government generally may not
present new evidence on remand when reversal is required due to the failure
to present evidence originally.” Id. at 753 (citing United States v. Archer, 671
F.3d 149, 168–69 (2d Cir. 2011)); see also United States v. Villalobos, 879 F.3d
169, 172 (5th Cir. 2018) (reiterating this holding in dicta). To the extent that
the holding in Chemical & Metal Industries is in tension with Carales-Villalta,
the holding of Carales-Villalta controls. See United States v. Broussard, 669
F.3d 537, 554 (5th Cir. 2012) (explaining that “where ‘two previous holdings
or lines of precedent conflict, the earlier opinion controls and is the binding
precedent in this circuit.’” (quoting United States v. Wheeler, 322 F.3d 823,
828 n.1 (5th Cir. 2003))). 1
1
Hernandez also relies heavily on the Second Circuit case United States v. Archer,
671 F.3d 149, 168–69 (2d Cir. 2011). He argues that we should follow the rule laid out in
Archer because it is the “majority rule.” But we are bound to follow our precedents, not
the precedents of our sister circuits. See, e.g., United States v. Traxler, 764 F.3d 486, 489
(5th Cir. 2014). Moreover, Archer is distinguishable. Like Chemical & Metal Industries, in
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But even were we to apply the test laid out in Chemical & Metal
Industries, Hernandez’s argument would still fall short. First, Chemical &
Metal Industries is distinguishable. There, the court did not remand the case
at all, but rather it modified the fine and restriction order and otherwise
affirmed. Chemical & Metal Industries, Inc., 677 F.3d at 753. In other words,
the court explicitly chose not to give the Government a second chance to
introduce evidence on remand and instead took advantage of a path Carales-
Villalta explicitly offers us: to “mandate a particular result.” 617 F.3d at 345.
Second, that case purported to hold that a party “generally may not present
new evidence on remand.” Chem. & Metal Indus., 677 F.3d at 753 (emphasis
added). But there are “special circumstances” that justify an exception to
the rule, including “where the government’s burden was unclear.”
Villalobos, 879 F.3d at 172. Hernandez argues that the Government’s burden
was obviously clear, as this court reversed his earlier sentence on plain error
review. But this ignores the fact that Hernandez previously seemed to take
the same view 2 of the Government’s burden as the Government did, as he
failed to object before the district court during his first sentencing hearing.
And unlike in Chemical & Metal Industries, the Government did not concede
error on appeal. Under these circumstances, the contours of the
Government’s burden were at least sufficiently fuzzy that a “special
circumstance” was present, and the Government could therefore present
additional evidence on remand.
Archer an appellate court considered whether it was appropriate for the Government to
produce additional evidence on remand before it remanded the case, and specifically
instructed the district court to consider certain factors in determining whether to do so.
Archer, 671 F.3d at 168–69. That differs from this case, where our court gave no specific
instructions on remand in deciding Hernandez’s first appeal. See Hernandez, 2022 WL
576406, at *1.
2
The probation officer and the district court shared this view as well.
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In sum, we hold that Carales-Villalta binds this court and is dispositive
here. Moreover, even under Hernandez’s preferred approach, the district
court did not err in hearing additional evidence related to the § 2L1.1(b)(6)
enhancement on remand.
III
We next consider whether the district court properly applied the
enhancement. Because Hernandez preserved his objection to the application
of the sentencing enhancement, we review “a district court’s interpretation
of the Sentencing Guidelines de novo and its factual determinations for clear
error.” United States v. Garza, 587 F.3d 304, 308 (5th Cir. 2009).
The Sentencing Guideline at issue is U.S.S.G. § 2L1.1(b)(6). That
Guideline allows for an enhancement “[i]f the offense involved intentionally
or recklessly creating a substantial risk of death or serious bodily injury to
another person.” The commentary to the Guidelines tells us that the
“[r]eckless conduct to which the adjustment . . . applies includes a wide
variety of conduct,” including “transporting persons in the trunk or engine
compartment of a motor vehicle” and “carrying substantially more
passengers than the rated capacity of a motor vehicle.” U.S.S.G. § 2L1.1
cmt. 3.
Our caselaw makes clear that the act of transporting aliens lying in the
cargo area of a minivan does not “create[] a substantial risk of death or
seriously bodily injury to another person” unless aggravating factors are
present. See United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005).
This is because “[t]he only dangers we consider to be associated with riding
in the cargo area of the minivan are generally the same dangers that arise from
an individual not wearing a seatbelt in a moving vehicle.” Id. See also United
States v. Rodriguez, 630 F.3d 377, 381 (5th Cir. 2011); United States v. Castelo-
Palma, 30 F.4th 284, 288–89 (5th Cir. 2022). Given that the only evidence
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in support of the enhancement before this court during Hernandez’s first
appeal was the PSR’s statements that there were “several occupants in the
back seat and rear cargo area” of Hernandez’s Escalade who were “laying on
top of one another,” the prior panel was correct that our caselaw required
vacating Hernandez’s earlier sentence.
Our precedents have also described which “aggravating factors” may
warrant application of the enhancement. These include “(1) the availability
of oxygen; (2) exposure to temperature extremes; (3) the alien’s ability to
communicate with the driver of the vehicle; (4) the alien’s ability to exit the
vehicle quickly; and (5) the danger to the alien if an accident occurs.” Garza,
587 F.3d at 310 (citing United States v. Zuniga-Amezquita, 468 F.3d 886, 889
(5th Cir. 2006). This list is non-exhaustive. Id. Our cases often emphasize
the final two factors, particularly because they are often related. See id. at
311; Zuniga-Amezquita, 468 F.3d at 889–90.
Here, the district court expressly found that aliens in the cargo area
could not exit the vehicle quickly. This finding was not clearly erroneous.
Given the number of individuals “stacked in [the cargo area] pretty tight,”
and the inability of Gonzalez to open the back door even with the keys, this
finding was reasonable. Hernandez’s counterarguments, including that the
passengers could have managed to climb out of the narrow back window of
the Escalade or that the there might have been a different (though unproved)
way to open the back door do not demonstrate clear error. “To be clearly
erroneous, a decision must strike us as more than just maybe or probably
wrong; it must . . . strike us as wrong with the force of a five-week-old,
unrefrigerated dead fish.” United States v. Hughes, No. 21-50458, 2022 WL
1223806, at *2 (5th Cir. Apr. 26, 2022) (quoting Parts & Elec. Motors, Inc. v.
Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
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We have previously held that “[t]ransporting aliens in a manner that
significantly hinders their ability to exit the vehicle quickly creates a
substantial risk of death or serious bodily injury.” Zuniga-Amezquita, 468
F.3d at 889. In other words, on resentencing the Government proved up an
aggravating factor that was not considered by this court during Hernandez’s
first appeal. The presence of that aggravating factor is dispositive here, as its
presence is sufficient for application of the § 2L1.1(b)(6) enhancement. 3 Id.
IV
For the foregoing reasons, we AFFIRM.
3
Although the district court’s findings that the aliens could not egress the vehicle
easily is sufficient to affirm here, we note that there is other evidence in the record which
further supports application of the enhancement. Specifically, Gonzalez testified that
Hernandez was driving dangerously, including “swerving within its lane and at several
times had crossed over the center lane divider.” Although in United States v. Ramirez, we
found a defendant’s “unsafe” driving insufficient to impose the § 2L1.1(b)(6)
enhancement, that case should not be read to suggest that a driver’s unsafe driving can
never be a consideration that supports application of the enhancement, particularly because
in that case there was also evidence the driver was making an effort to drive safely by going
fifteen miles under the speed limit. 37 F.4th 233, 237 (5th Cir. 2022).
10