United States v. Buster Hernandez ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-1481 & 21-1935
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BUSTER HERNANDEZ,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:17-cr-183 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED FEBRUARY 24, 2022 — DECIDED AUGUST 17, 2022
____________________
Before ROVNER, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
KIRSCH, Circuit Judge. Buster Hernandez was sentenced to
75 years’ imprisonment after pleading guilty to a yearslong
sextortion scheme involving hundreds of victims, many of
them minors. One aspect of his sentence was mandatory res-
titution, which the district court ordered in the amount of
$10,000 for each of eleven minor victims—eight accounted for
in the initial judgment, and three more added in an amended
2 Nos. 21-1481 & 21-1935
judgment when it surfaced that they had been omitted from
the first.
Hernandez now challenges his $110,000 restitution order
on two grounds. He first contends that the entire order must
be reversed because the government shirked its duty to prove
his victims’ losses. And second, in the event his first argument
fails, he maintains that the restitution order must be reversed
at least as to the final three victims because the judgment was
not properly amended under Federal Rule of Criminal Proce-
dure 35(a). But our criminal justice system is adversarial, and
Hernandez failed to raise these issues with the district court.
Because we believe this omission was part of Hernandez’s
sentencing strategy, we deem his appellate arguments
waived. We therefore affirm the judgment of the district court
without reaching the merits of Hernandez’s claims.
I
A
From 2012 to 2017, Hernandez engaged in an online cam-
paign of terror, coercing hundreds of victims—most often mi-
nors—to produce sexually explicit images and videos of
themselves. Typically, he began with a private message to a
potential victim on social media conveying that he already
possessed explicit photos of them. Should that individual re-
spond, Hernandez’s ploy was then to demand that they create
sexually explicit materials of themselves and send them to
him, in exchange for which he promised to delete all such ma-
terials afterward. But of course, this sextortion didn’t end
once Hernandez’s initial demands were met. Instead, he con-
tinued making demands of a victim until they refused to com-
ply, at which point he often posted the sexually explicit
Nos. 21-1481 & 21-1935 3
materials he had already extorted from his victim online or
anonymously sent those materials to the victims’ friends and
families. He also threatened to murder, rape, kidnap, and in-
jure his victims and their friends and family and encouraged
some victims to kill themselves.
Hernandez worked hard to cover his tracks, including by
using at least 169 different email and social media accounts
under countless aliases, as well as by deploying sophisticated
technological measures to avoid detection. For example, he
used a computer system that lacked a hard drive, which en-
sured that no data would be left on his device once powered
off. To the extent that he did keep longer-term copies of the
videos and images he extorted from his victims, those were
maintained on encrypted external hard drives. And all of his
extortion schemes were carried out with the aid of the Tor
Network, an anonymity network designed to mask its user’s
IP address so that their geographic location is virtually impos-
sible to trace.
His schemes began to unravel in December 2015, when
one minor victim’s mother discovered extortionist text mes-
sages from Hernandez to her child. Hernandez responded by
threatening to kill the victim and her mother and to kidnap
the victim’s minor sibling, as well as by disseminating online
the images he had previously extorted from that victim. And
he only upped the ante in the months that followed, threaten-
ing to commit bombings and mass murder at two public high
schools, a shopping mall, and a large retailer all located near
this victim’s home.
Even with state and federal law enforcement determined
to bring him to justice, Hernandez’s technological skills al-
lowed him to evade capture for another 20 months. But in
4 Nos. 21-1481 & 21-1935
mid-2017, the law finally caught up with Hernandez, after
one of his minor victims allowed law enforcement officials to
use the victim’s online identity to send an (innocuous) video
to Hernandez containing surreptitiously embedded code that
revealed his IP address. With Hernandez’s IP address at last
unmasked, his physical location became apparent, and he was
brought into custody on August 3, 2017.
The evidence of Hernandez’s crimes mounted following
his capture, and his list of charges grew accordingly. By April
2019, he faced a 41-count Superseding Indictment which
charged him with production of child pornography; coercion
and enticement of minors; distribution and receipt of child
pornography; threatening to use explosive devices; extortion;
threats to kill, kidnap, and injure other persons; witness tam-
pering; obstruction of justice; and retaliation against the vic-
tims and witnesses of his crimes. Staring down this mountain
of charges, Hernandez chose to forego trial, instead pleading
guilty to all 41 counts (without a plea agreement) on February
6, 2020.
B
Before Hernandez’s sentencing hearing, an initial Presen-
tence Investigation Report disclosed that the government
would seek $10,000 in restitution each for eight of Hernan-
dez’s minor victims, which 18 U.S.C. § 2259(b)(2)(B) and (c)(3)
make mandatory for child pornographers like Hernandez.
Hernandez objected to an offense-level enhancement pro-
posed by the PSR, but said nothing about restitution, even af-
ter the Probation Office submitted an amended PSR which
again indicated the government would seek $10,000 for each
of eight minor victims.
Nos. 21-1481 & 21-1935 5
While awaiting sentencing, Hernandez also submitted a
sentencing memorandum, which sought a 30-year sentence
(his prospective Guidelines Range, by contrast, recom-
mended life imprisonment). But he never submitted a filing
taking issue with the PSR’s mention of restitution, even after
the government later indicated it had identified three addi-
tional minor victims for whom it would seek restitution. At
sentencing, the government said nothing on restitution, while
Hernandez referenced it once, arguing that the 30-year sen-
tence he sought would provide substantial time to pay resti-
tution while working inside the Bureau of Prisons.
Knowing from the PSR that the government sought
$10,000 for each minor victim, the district court ultimately
stated an intended sentence including $10,000 in restitution
for each of eight victims, totaling $80,000 (an amount which
omitted the three victims disclosed in one of the government’s
filings, mentioned above). The district court then asked
whether there was any reason not to impose the intended sen-
tence and, both parties having answered that question in the
negative, proceeded to impose that sentence, including 75
years’ imprisonment, supervised release thereafter, and
$80,000 in restitution.
Within a week, it became apparent that the three minor
victims disclosed in one of the government’s post-PSR filings
(for whom restitution was, again, mandatory, and set by stat-
ute at a minimum of $3,000) had been omitted from the initial
judgment. The government therefore moved to amend the
judgment to include $10,000 in restitution for each of these
three victims as well, with the motion indicating that Hernan-
dez did not object. Given the unopposed motion, the district
court entered an amended judgment including $10,000 for all
6 Nos. 21-1481 & 21-1935
three, meaning $110,000 total when added to the $80,00 pre-
viously ordered. Hernandez then appealed to our court, rais-
ing challenges to his restitution order for the first time.
II
Hernandez presses two issues on appeal. He argues first
that the district court erred in ordering $10,000 in restitution
for each of eleven minor victims because the government pro-
vided no evidence of those victims’ losses. And he argues next
that the district court erred in amending the judgment to in-
clude $10,000 in restitution for each of three victims initially
left out, contending that this was not the sort of error Federal
Rule of Criminal Procedure 35(a) contemplates correcting
through an amended judgment. We consider each argument
in turn.
A
Hernandez urges us to reverse the district court’s $110,000
restitution order because the government provided no evi-
dence of his victims’ losses. Of course, he admits, these eleven
victims will get some restitution, even on remand—the law
demands some minimum recompense for Hernandez’s vic-
tims. See 18 U.S.C. § 2259(b)(2)(b) and (c)(3) (making at least
$3,000 per victim in restitution mandatory for those convicted
of trafficking in child pornography). But he thinks that the
government, having failed to provide proof of loss at sentenc-
ing, is barred by our precedents from submitting that evi-
dence on remand, see United States v. Noble, 367 F.3d 681, 682
(7th Cir. 2004) and United States v. Wyss, 147 F.3d 631, 633 (7th
Cir. 1998), meaning his victims should each get the $3,000 stat-
utory minimum and not a penny more.
Nos. 21-1481 & 21-1935 7
Yet whatever the merits of that argument, Hernandez
must first overcome his failure to raise it before the district
court. Arguments not properly preserved during sentencing
are either forfeited or waived. United States v. Burns, 843 F.3d
679, 685 (7th Cir. 2016). The former permits limited appellate
review; the latter precludes it. Id. Although the difference be-
tween the two is hard to delineate, finding waiver—the inten-
tional relinquishment of a known right—is appropriate where
a defendant’s district-court omission was a matter of strategy.
Id.Identifying such a strategic choice “requires some conjec-
ture on our part in light of the record viewed as a whole.” Id.
at 686 (citation omitted). In making this assessment, “we con-
sider express statements of waiver, as well as evidence of ac-
quiescence.” United States v. Mansfield, 21 F.4th 946, 954 (7th
Cir. 2021). And a chief sign of acquiescence is inaction in the
face of notice. See United States v. Staples, 202 F.3d 992, 995 (7th
Cir. 2000) (finding waiver where PSR provided defendant ad-
vanced notice of proposed criminal history calculation, yet
defendant failed to object before or during sentencing hear-
ing); Mansfield, 21 F.4th at 954–55 (finding waiver where PSR
incorporated defendant’s arrest history, providing advanced
notice that history might be considered, yet defendant did not
object until appeal).
There was ample notice here, and silence in the face of it.
The initial PSR was filed in the district court docket nearly one
year before Hernandez’s sentencing hearing, and it did not
hide the ball when it came to restitution. Over a span of more
than a dozen pages, the PSR recounted the horrors that Her-
nandez had inflicted on his victims over the years and ex-
pressed that the government had identified eight of them—
8 Nos. 21-1481 & 21-1935
victims 1 through 6, 11, and 12 (all minors)—on whose behalf
it would seek $10,000 in restitution each.
It's evident that Hernandez closely reviewed the initial
PSR. He responded to it by filing a detailed objection to a pro-
posed base-offense-level enhancement. But he said nothing
about restitution—a telling omission that we have previously
found points to waiver. See Mansfield, 21 F.4th at 954–55 (find-
ing waiver where defendant made multiple sentencing-rele-
vant filings after receiving the PSR yet failed until appeal to
challenge the PSR’s accuracy or inclusion of disputed arrest
history).
This silence continued when the final PSR again indicated
that the government would seek $10,000 in restitution for
each of eight victims, even as Hernandez submitted a sentenc-
ing memorandum arguing vigorously for a 30-year sentence
against the possibility of life imprisonment. And when the
government later identified three other minor victims entitled
to restitution (their identification having been delayed by
Hernandez’s sophisticated efforts to conceal his online sextor-
tion scheme), Hernandez never said a word about the proof
of loss needed to seek such restitution.
At sentencing, Hernandez continued this pattern of
“missed opportunities.” Id. at 955. During the hearing, the
government said nothing about restitution; Hernandez, for
his part, said little. His counsel assured the district court that
they had reviewed the PSR, presumably including its indica-
tion that the government would seek $10,000 in restitution per
victim. Yet Hernandez’s sole reference to restitution at the
sentencing hearing was to argue that the 30 years’ imprison-
ment that he sought “w[ould] provide significant time for res-
titution to be paid” as he worked inside the Bureau of Prisons.
Nos. 21-1481 & 21-1935 9
Given the near-total oversight of the issue, it’s unsurpris-
ing that the district court proceeded to state an intended sen-
tence which included $10,000 in restitution per victim—ex-
actly what the PSR said would be sought—as well as 75 years’
imprisonment. Even here, however, Hernandez had a chance
to object—the district court made clear that both parties
would have “a final opportunity to state any legal objections
before sentence [wa]s finally imposed.” Yet when asked at the
close of the sentencing hearing whether there was “any rea-
son[] … why [the] sentence should not be imposed as stated,”
Hernandez’s counsel disclaimed any further objections.
To be sure, even affirmative non-objection is not per se
waiver. See United States v. Robinson, 964 F.3d 632, 641 (7th
Cir. 2020) (“[A] lawyer’s statement that a defendant has no
objection to the PSR does not automatically constitute a waiver
… .”). But we do “consider it in light of the surrounding cir-
cumstances and the record as a whole to determine whether
counsel and the defendant made a knowing and intentional
decision” not to object. Id. (citation omitted). And the govern-
ment here has proffered compelling strategic reasons why
Hernandez may have chosen not to do so, reasons which also
favor finding waiver. See Mansfield, 21 F.4th at 955 (finding
waiver where government proffered convincing strategic rea-
sons for defendant’s failure to raise a sentencing objection
with the district court).
For starters, Hernandez had no income or assets to his
name at the time of sentencing. On that basis, the district
judge concluded that he could not pay even a Guideline range
fine in association with his conviction. This by itself was a
good reason for Hernandez not to contest restitution—no
10 Nos. 21-1481 & 21-1935
matter whether he was ordered to pay $10,000 per victim or
$10 million, he would remain equally unable to pay.
Moreover, nitpicking over the precise recompense owed
to and harm suffered by his victims could have undermined
Hernandez’s other, more effort-worthy sentencing argu-
ments. Based on the severity of Hernandez’s crimes, the advi-
sory Sentencing Guidelines calculation recommended life im-
prisonment, a penalty which the government forcefully
sought. But Hernandez asked for a dramatically different out-
come, seeking a downward variance to 30 years. Defense
counsel sought this comparatively light sentence in part
based on a nuanced portrayal of Hernandez as a Jekyll-and-
Hyde figure, acknowledging the seriousness of his crimes but
emphasizing his lack of prior criminal history, acceptance of
responsibility, and own traumatic upbringing. We imagine—
and think Hernandez did, too—that an argument seeking to
discount his victim’s losses for restitution purposes would
have been deeply unpalatable to a district judge being asked
for extraordinary lenience based in part on Hernandez’s ac-
ceptance of responsibility.
Hernandez dismisses the government’s proffered strate-
gic reasons, arguing that it would make little strategic sense
to give up his restitution arguments in order to obtain an ef-
fective life sentence of 75 years when he would have been bet-
ter off with less restitution and an actual (instead of de facto)
life sentence. But recall that Hernandez sought a downward
variance to 30 years, which, given that he was 27 years old
when first taken into custody, would likely have been decades
shorter than a sentence of life imprisonment. To be sure, Her-
nandez got 75 years, not the 30 that he wanted. But a failed
gambit can still be a rational one, and after-the-fact regret
Nos. 21-1481 & 21-1935 11
doesn’t mean that Hernandez lacked good strategic reasons
for being selective in his choice of sentencing arguments.
Fighting waiver, Hernandez argues that he couldn’t have
been expected to object to the restitution amount when the
PSR offered no evidence of loss and the government showed
up unexpectedly empty-handed to his sentencing hearing. As
he sees it, there was nothing tangible to object to until the dis-
trict court indicated that it would order the $10,000 in restitu-
tion per victim that the government requested, at which point
Federal Rule of Criminal Procedure 51(a) made it unnecessary
for him to object to an already-decided ruling. But that mis-
construes what happened: the district court stated an intended
sentence including $10,000 per victim, which it did not im-
pose until after giving both parties an opportunity to object—
an opportunity Hernandez did not take.
“The sentencing in the district court is the main event,”
and sentencing arguments are often a use-it-or-lose-it affair, a
reality which reflects our system’s foundation in adversarial
principles. United States v. Lewis, 823 F.3d 1075, 1081–82 (7th
Cir. 2016). In this case, there were no surprises at sentencing
with respect to restitution. Id. at 1082. From his guilty plea and
forward, Hernandez knew to a certainty that he would pay
restitution—the law made it mandatory, and subject to a stat-
utory minimum. And the PSR warned him nearly a year in
advance that the government would seek $10,000 per victim,
with later filings confirming the number of compensable mi-
nor victims at eleven. Hernandez had every opportunity to
raise that issue and failed to do so. Having notice of what will
come and electing not to object “shows intent to waive [a]
right, not ignorance or neglect of [that] right.” Staples, 202 F.3d
at 995. We find such an intent here, and so deem Hernandez’s
12 Nos. 21-1481 & 21-1935
argument that restitution was improperly entered without ev-
idence to have been waived. This holding does not, however,
condone a lack of factual basis in determining a restitution
amount. See 18 U.S.C. § 3664(e) (the government bears the
burden of proving victim losses by a preponderance of the ev-
idence before mandatory restitution may be ordered); United
States v. Eaden, 37 F.4th 1307, 1313–14 (7th Cir. 2022) (on plain
error review, reversing portions of restitution order that were
entered without evidentiary support).
B
Hernandez also says that it was improper to amend the
judgment to include restitution for minor victims 13, 17, and
20, who were originally omitted from the judgment, despite
having recounted to the district court how they had suffered
at Hernandez’s hands. He insists that the omitted restitu-
tion—which was set at a mandatory minimum of $3,000 per
victim by 18 U.S.C. § 2259—wasn’t the sort of error subject to
correction through an amended judgment under Federal Rule
of Criminal Procedure 35(a).
But there was waiver here, clear as day. The government’s
motion requesting an amended judgment stated that Hernan-
dez did not object, and Hernandez doesn’t deny on appeal
that this was the case. It’s true that (as Hernandez points out)
United States v. Jaimes-Jaimes says we shouldn’t find waiver
where, given an ambiguous record, finding waiver would
compel the conclusion that counsel had performed deficiently
in failing to object. 406 F.3d 845, 848 (7th Cir. 2005). But Jaimes-
Jaimes took that view in the face of an ambiguous record, in
which defense counsel disclaimed any objection to the PSR’s
Guidelines calculation only in general terms. Id. The record
here, by contrast, is anything but ambiguous. The
Nos. 21-1481 & 21-1935 13
government moved to amend the judgment in one and only
one respect—including restitution for victims who were over-
looked at sentencing. In response to that single-issue request,
Hernandez’s counsel denied having any objection. There’s
nothing ambiguous about disclaiming objection to so precise
a request; to the contrary, that’s textbook waiver. Cf. id. (find-
ing forfeiture, not waiver, where defendant’s trial counsel dis-
claimed objection to PSR’s proposed Guidelines calculation
generally, rather than to a specific offense-level enhancement
underpinning that calculation).
In discussing Jaimes-Jaimes’s holding at oral argument,
Hernandez’s counsel suggested that Hernandez’s lawyer in
the district court may have performed deficiently by failing to
object to the late-added restitution. But whether that is true is
a question for a later day. Under United States v. Strickland,
“counsel’s strategic decisions are presumed to be competent,”
United States v. Flores, 739 F.3d 337, 340 (7th Cir. 2014) (citing
466 U.S. 668 (1984)), and that presumption ordinarily “cannot
be overcome without an evidentiary hearing” not available on
direct appeal, id. For that reason, raising ineffective assistance
on direct appeal is imprudent, id. at 341, and it would be
equally imprudent for us to engage with that issue when Her-
nandez has not pursued it.
AFFIRMED