United States v. Pablo Hernandez ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50016
Plaintiff-Appellee, D.C. No.
2:15-cr-00662-ODW-5
v.
PABLO VELASCO HERNANDEZ, AKA MEMORANDUM*
Pablo Hernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted February 14, 2022**
Pasadena, California
Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District
Judge.
Defendant Pablo Hernandez appeals his 87-month prison sentence arising
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
from his guilty plea to a racketeering conspiracy charge, 18 U.S.C. § 1962(d). As
the parties are familiar with the facts, we do not recount them here. Reviewing the
district court’s intended loss calculation for clear error, United States v. Tulaner,
512 F.3d 576, 578 (9th Cir. 2008), and Hernandez’s unpreserved procedural
objections to the district court’s sentencing decision for plain error, United States
v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), we affirm.
1. Hernandez contends that the district court was required to find intended
loss by clear and convincing evidence because the enhancement had an “extremely
disproportionate” effect on his sentence (adding sixteen points to his offense level).
We have previously ruled that the clear and convincing evidence standard applies,
as a matter of due process, “when a sentencing factor has an extremely
disproportionate effect on the sentence relative to the offense of conviction.”
United States v. Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015). But where an
enhancement is based upon the extent of a conspiracy of which the defendant was
already convicted (as opposed to uncharged or acquitted conduct), the
preponderance standard is sufficient. See United States v. Armstead, 552 F.3d 769,
777 (9th Cir. 2008); United States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008).
Hernandez has been convicted of a conspiracy to launder money derived
from narcotics trafficking. The loss enhancement in this case simply reflects the
extent of the crime of conviction (the amount of money Hernandez conspired to
2
launder). Thus, despite the magnitude of the enhancement, preponderance of the
evidence was the appropriate standard of proof. See Garro, 517 F.3d at 1167-69(finding no error in the use of the preponderance standard, despite a sixteen-point
increase in defendant’s offense level); Hymas, 780 F.3d at 1290-91 (affirming the
preponderance standard, despite a ten-point increase).
2. The district court did not clearly err in finding by a preponderance of the
evidence that Hernandez intended a $2 million loss. Hernandez has confirmed,
through the plea agreement, that on August 23, 2012, he “told [a government
informant] that [he and co-defendant Emilio Herrera] had already tried to launder
money with an account at Saigon National Bank but that that [sic] the account had
been closed.” There is also documentary evidence that a company called Credes
Financial Services (“Credes”) opened an account at that bank in late July 2011 and
closed it after roughly $2 million were deposited, and that the owners of this
company were Hernandez’s clients. Given these facts, the district court could
reasonably infer that the Saigon National Bank account referenced in Hernandez’s
admission was the Credes account.
Hernandez’s arguments to the contrary are unpersuasive. First, he argues
that his recorded statement about having “tried” to launder money with co-
defendant Bill Lu was, by its plain terms, referring to an attempt that occurred after
the Credes account was already closed. But the full statement was, “We tried to do
3
it with your uncle [Lu], but then they cancelled that account.” The adverb “then”
implies that the money laundering attempt was chronologically prior to the
cancellation. Second, Hernandez states that he was trying to prevent Credes from
laundering the $2 million, because the transcripts show him expressing frustration
that Credes did not heed his warnings. However, it seems that the cause of
Hernandez’s frustration was that Credes’ actions (depositing so much money,
within a short time, while Bill Lu was away on vacation in Cambodia) made the
laundering scheme too easy to detect—not that the scheme was illegal. Third,
Hernandez suggests that the plea agreement marks August 25, 2011 as the date of
his “first participation in the scheme,” whereas the $2 million at issue was
deposited in July 2011. But the agreement, on the contrary, states that the scheme
began “on a date unknown” and continued to a date “in or around December
2015.”
3. Hernandez also argues that the district court failed to consider the 18
U.S.C. § 3553(a) factors or explain its chosen sentence, as required by § 3553(c).
As Hernandez never raised these broad objections at the sentencing hearing, we
review them for plain error.1 See Valencia-Barragan, 608 F.3d at 1108. The
1
Hernandez arguably preserved the much narrower objection that the district court
failed to explain how its sentence comported with the factor counseling avoidance
of “unwarranted sentence disparities,” § 3553(a)(6). But applying the abuse of
discretion standard to this particular objection, United States v. Door, 996 F.3d
606, 622 (9th Cir. 2021), there is still no reversable error. By Hernandez’s
4
district court clearly listened to Hernandez’s arguments for a reduced sentence,
stated that it reviewed the § 3553(a) factors, and noted the factual considerations
(related to at least two of those factors) that it found most salient, including
Hernandez’s likely history of money laundering, his advanced age, and the threat
that Covid-19 would pose to Hernandez in the prison environment. It then
imposed a sentence at the lower end of the Guidelines range. This is enough, on
plain error review, to conclude that the court satisfied its obligations under § 3553.
See id.
AFFIRMED.
counsel’s own admission, the district judge listened to his argument. The court
simply found it insufficient. Its failure to explain why was not an abuse of
discretion. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1053-54 (9th
Cir. 2009).
5