United States v. Hernandez-Carrillo ( 2021 )

Case: 19-50625 Document: 00515716454 Page: 1 Date Filed: 01/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 22, 2021
No. 19-50625 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Fernando Hernandez-Carrillo,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-2957-1
Before Owen, Chief Judge, and Ho and Engelhardt, Circuit Judges.
Per Curiam:*
Fernando Hernandez-Carrillo appeals his 96-month, below-
guidelines range sentence for conspiracy to import 500 grams or more of
methamphetamine, conspiracy to possess with intent to distribute 500 grams
or more of methamphetamine, and possession with intent to distribute 500
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-50625 Document: 00515716454 Page: 2 Date Filed: 01/22/2021
No. 19-50625
grams or more of methamphetamine. Hernandez-Carrillo contends that the
district court erred by (1) denying him a downward adjustment based on his
minor role in the offense and (2) imposing special conditions of supervised
release requiring him to attend and complete parenting classes, perform 200
hours of community service, and undergo cognitive behavioral treatment in
the event he is allowed to remain in the United States.
We affirm the denial of a minor role reduction. See generally U.S.S.G.
§ 3B1.2. In the district court, Hernandez-Carrillo failed to establish the
culpability of the average participant in the drug conspiracy, let alone that he
was substantially less culpable than that participant insofar as he helped to
secure the participation of an undercover agent in the drug conspiracy and
instructed the agent as to how the liquid methamphetamine would be
concealed during transport in order to prevent its detection by law
enforcement. See United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016).
The court’s finding, based on all the facts and extensive arguments before it,
that Hernandez-Castillo did not warrant a minor role adjustment was not
clearly erroneous. See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir.
2005).
Hernandez-Carrillo’s challenge to the special supervised release
conditions is not ripe for review. See United States v. Carmichael, 343 F.3d
756, 761 (5th Cir. 2003). Because Hernandez-Carrillo is not a citizen and at
least one of his convictions is for an aggravated felony, he is subject to both
mandatory removal from and future inadmissibility to the United States. See
8 U.S.C. § 1227(a)(2)(A)(iii); Barton v. Barr, 140 S. Ct. 1442, 1453 (2020);
Lee v. United States, 137 S. Ct. 1958, 1963 (2017). In addition, he will be
subject to an immigration detainer, pending removal proceedings, upon his
release from prison. See 8 U.S.C. § 1226(c)(1)(B). As a result, whether he
will remain in the United States free of custody long enough to trigger the
challenged special supervised release conditions is, at best, a matter of
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Case: 19-50625 Document: 00515716454 Page: 3 Date Filed: 01/22/2021
No. 19-50625
conjecture. See United States v. Magana, 837 F.3d 457, 459 (5th Cir. 2016).
We therefore lack jurisdiction to consider this issue. See id.The judgment is AFFIRMED IN PART, and the appeal is
DISMISSED IN PART for lack of jurisdiction.
3