United States v. Pedro Hernandez ( 2011 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 28, 2011*
Decided June 30, 2011
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-1752
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 1:08-cr-00832-1
PEDRO HERNANDEZ,
Defendant-Appellant. Amy J. St. Eve, Judge.
ORDER
*
After an examination of the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. FED. R. APP. P. 34(a)(2).
No. 11-1752 Page 2
This is defendant Pedro Hernandez’s second appeal of his sentence for the
distribution of more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Hernandez pleaded guilty and originally received the mandatory minimum sentence of 120
months. At the time of his plea, he already had been convicted in Illinois state court for an
unrelated state offense, unlawful possession of a firearm. At the time of his federal
sentencing, Hernandez had served 18 months on the latter conviction. Hernandez asked
the district court to run his federal sentence concurrently with his state sentence. The judge
could accomplish this by ordering only an additional 102 months in prison; that term,
stacked with the 18 months he had already served on the state offense, would add up to
the 120-month mandatory minimum required by § 841(b)(1)(A).
Believing that it did not have the authority to structure the sentence as Hernandez
desired, the district court denied his request. Hernandez then appealed to this court. Citing
our decision in United States v. Campbell, 617 F.3d 958 (7th Cir. 2010), we held that 18 U.S.C.
§ 3584 confers upon a district court the authority to impose a sentence below the
§ 841(b)(1)(A) mandatory minimum to account for time served on an unrelated
undischarged sentence, so long as the defendant’s total period of state and federal
imprisonment equaled the statutory minimum. We therefore vacated the sentence and
remanded for further proceedings.
By the time of the remand, Hernandez had served another 14 months on the state
sentence. The district court was persuaded to exercise its discretion in accordance with
Hernandez’s wishes; it thus sentenced him to 88 months imprisonment, which was the time
now needed to reach the total of 120 months.
Hernandez, nonetheless, has brought a new appeal to this court. He now argues that
he is entitled to be re-sentenced in accordance with the Fair Sentencing Act of 2010, which
took effect after his trial. The FSA increased the quantities of crack cocaine required to
trigger the mandatory maxima and minima stipulated by the statute. Hernandez argues
that these more lenient rules should apply to defendants (like him) who committed the
charged offense prior to the passage of the FSA but were sentenced after the FSA’s
enactment. We addressed and rejected precisely this argument in United States v. Fisher,
635 F.3d 336, 340 (7th Cir. 2011), reh’g en banc denied, —F.3d — 2011 WL 2022959 (7th Cir.
May 25, 2011) (“[W]e reaffirm our finding that the FSA does not apply retroactively, and
further find that the relevant date for a determination of retroactivity is the date of the
underlying criminal conduct, not the date of sentencing.”).
No. 11-1752 Page 3
We see no reason to upset such a recent and thorough look at the question.
Hernandez has done what he needed to do to preserve this question for further review.
AFFIRMED.