United States v. Jose Hernandez , 547 F. App'x 839 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50276
Plaintiff - Appellee, D.C. No. 3:10-cr-03173-H-3
v.
MEMORANDUM*
JOSE LUIS HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted November 6, 2013**
Pasadena, California
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
Jose Luis Hernandez appeals his conviction and sentence for conspiracy to
possess with the intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conspiracy to affect commerce by robbery or extortion, 18 U.S.C. § 1951(a),
possession of a firearm in furtherance of a crime of violence or drug trafficking
offense, id. § 924(c)(1)(A)(i), and possession of a firearm by an illegal alien. Id.
§§ 922(g)(5)(A), 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
First, Hernandez argues that the district court plainly erred by failing to give
three jury instructions.1 We disagree. The district court correctly decided not to
give Hernandez’s proffered willfulness instruction because willfulness is not an
element of any of the offenses for which he was charged. Hernandez did not
request the other two instructions, and the district court did not plainly err by not
giving them sua sponte.
Second, Hernandez contends that his counsel was ineffective for failing to
request the jury instructions discussed above. We review ineffective assistance
1
Hernandez's counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), addressing several grounds for appeal including (i) the failure to give
three jury instructions; (ii) sentencing entrapment; and (iii) challenges to the
sufficiency of the evidence. Hernandez filed a pro se response to counsel's brief
explaining that the failure to give the jury instructions and the sentencing
entrapment arguments are not frivolous and arguing that counsel was ineffective.
Hernandez also filed a supplemental brief arguing that his conviction was in
violation of Alleyne v. United States, 133 S. Ct. 2151 (2013). We deemed
Hernandez's response to counsel's brief the opening brief and the supplemental
brief as a supplement to the reply brief.
2
claims on direct appeal only if the record is sufficiently developed or the
defendant’s legal representation is glaringly inadequate. United States v.
Mayweather, 634 F.3d 498, 507 (9th Cir. 2010). Neither exception applies here, so
we need not consider Hernandez’s claim. He may raise this claim in any post-
conviction proceedings.
Third, Hernandez argues that the verdict in his case ran afoul of Apprendi
and Alleyne because the type and amount of narcotics that were the object of the
charged conspiracy are sentencing factors that must be resolved by a jury. See
Alleyne v. United States, 133 S. Ct. 2151 (2013); Apprendi v. New Jersey, 530 U.S.
466 (2000). Here, in contrast, the narcotics determination was fixed before it
reached the jury because the government set the fictitious amount of drugs as part
of the sting. We review unpreserved Apprendi errors for plain error. United States
v. Ameline, 409 F.3d 1073, 1078-79 (9th Cir. 2005) (en banc).
Hernandez is correct that a jury must determine the type and quantity of
narcotics involved in the offense if the drug type and/or quantity increases the
statutorily prescribed minimum or maximum sentence. United States v. Cortes,
732 F.3d 1078, 1088, 1090-91 (9th Cir. 2013) (discussing Apprendi and Alleyne).
Recently, we explained that “any defenses to those drug types and quantities,”
including sentencing entrapment, “must be submitted to the jury” if the proffered
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defense potentially changes the statutory maximum or minimum sentences. Id. at
1088 (emphasis in original). Here, the evidence did not raise the possibility of a
different sentencing range because Hernandez’s theory of defense—that he wanted
counterfeit clothing, not drugs—did not include any argument or evidence that he
sought a different type or quantity of contraband.
Fourth, Hernandez argues that the crime of violence enhancement violates
Alleyne because it was not charged in the original indictment and jurors did not
have the opportunity to review the original indictment. This argument lacks merit
because Hernandez did not provide a copy of the original indictment in the record.
See Fed. R. App. P. 10(b); Thomas v. Computax Corp., 631 F.2d 139, 141 (9th Cir.
1980). Nevertheless, even if the original indictment did not include a crime of
violence charge, the jury instructions listed the allegations in the superseding
indictment, (including possession of a firearm in furtherance of a crime of
violence), the elements of the offense, and the legal meaning of possession. Thus,
the grand jury and trial jury properly determined whether Hernandez was guilty of
possessing a firearm during a crime of violence.
Fifth, Hernandez argues that the district court should have granted his
motion for a finding of sentencing entrapment. We review the district court’s
decision to reject a sentencing entrapment argument for abuse of discretion, United
4
States v. Yuman-Hernandez, 712 F.3d 471, 473 (9th Cir. 2013), keeping in mind
the risk of law enforcement inflating the amount of fictitious drugs in a stash house
sting to obtain higher mandatory sentences. United States v. Briggs, 623 F.3d 724,
729-30 (9th Cir. 2010).
To establish sentencing entrapment in a stash house case, the defendant must
prove, by a preponderance of the evidence, that he either lacked the intent or
lacked the capability to “conspire with others to take the amount of cocaine
involved by force.” Yuman-Hernandez, 712 F.3d at 473-75. Hernandez does not
meet his burden of proof because video and audio evidence showed that he
enthusiastically assisted with the plan to rob the fictitious cocaine stash house
without further inducement from the government. See Black v. United States, 733
F.3d 294, 311 (9th Cir. 2013) (“[I]n this case, the existence of tape and video
recordings to prove what was actually said and done has weighed heavily in our
review of the record.”). Furthermore, Hernandez was capable of conspiring to
obtain thirty kilograms of cocaine. His theory of defense was that he did not want
any cocaine, not some lesser amount of cocaine, and the jury rejected this defense.
Thus, the district court did not abuse its discretion by denying the motion for a
finding of sentencing entrapment.
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Sixth, Hernandez makes a variety of arguments that we construe as a
challenge to the sufficiency of the evidence. “Evidence is sufficient to support a
conviction unless, viewing the evidence in the light most favorable to sustaining
the verdict, no rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Overton, 573 F.3d 679, 685
(9th Cir. 2009). Here, the evidence of guilt was overwhelming: every part of the
undercover operation, including Hernandez’s statement in the squad car, was
recorded on video and/or audio; the undercover agent and confidential informant
testified; and several law enforcement officers discussed the operation and the
evidence they collected after arresting Hernandez.
Accordingly, the judgment is AFFIRMED.
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