United States v. Alexis Hernandez

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-15666
Non-Argument Calendar
D.C. Docket No. 8:16-cr-00486-CEH-TBM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(October 26, 2018)
Before WILSON, ANDERSON, and WILLIAM PRYOR, Circuit Judges.
WILSON, Circuit Judge:
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Defendants convicted of certain drug-related felonies are subjected to a 240-
month mandatory minimum if they have previously been convicted of a drug-related
felony. See 21 U.S.C. § 841(b). If the existence of the prior conviction is in
dispute, district courts are required to conduct a “§ 851 hearing” to determine
whether the defendant has a previous conviction, thus making him eligible for the
sentence enhancement. See 21 U.S.C § 851(c)(1). On this appeal, we decide
whether it was an abuse of discretion to disregard the Federal Rules of Evidence
during a § 851 hearing. We hold that it was not.
Alexis Hernandez was convicted of felony conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine and one kilogram or more of
heroin under 21 U.S.C. § 846. The district court sentenced Hernandez to 240
months, the mandatory minimum under 21 U.S.C. § 841(b)(1)(A). Hernandez
appeals his sentence, arguing: (1) the district court should have applied the Federal
Rules of Evidence at his § 851 hearing, and (2) the district court committed plain
error when it applied the incorrect standard of proof as to the government’s burden
under § 851.
I.
We review a district court’s evidentiary rulings for abuse of discretion. United
States v. Green, 873 F.3d 846, 854 (11th Cir. 2017). The Federal Rules of Evidence
do not apply to miscellaneous proceedings such as sentencing hearings. FED. R.
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EVID. 1101(d)(3). A sentencing court may consider any evidence, regardless of its
admissibility at trial, in determining whether factors exist that would enhance a
defendant’s sentence, provided that (1) the evidence has sufficient indicia of
reliability, (2) the court makes explicit findings of fact as to credibility, and (3) the
defendant has an opportunity to rebut the evidence. United States v. Ghertler, 605
F.3d 1256, 1269 (11th Cir. 2010). Prior convictions are treated as sentencing
factors. See United States v. Gibson, 434 F.3d 1234, 1244 (11th Cir. 2006) (citing
Almendarez-Torres v. United States, 523 U.S. 224, 228–35 (1998)).
Under 21 U.S.C. § 841(b)(1)(A), a defendant found guilty of one of the
enumerated offenses, including conspiracy to distribute, or possess with intent to
distribute, 500 grams or more of methamphetamine and one kilogram or more of
heroin, is subject to a 20-year mandatory minimum term of imprisonment if that
defendant has a prior conviction for a felony drug offense. 21 U.S.C.
§ 841(b)(1)(A). In order to obtain this sentencing enhancement, the government
must file an information before trial indicating its intent to use the prior conviction.
21 U.S.C. § 851(a)(1). If the defendant files a written response challenging the prior
conviction, the district court must “hold a hearing to determine any issues raised by
the response which would except the person from increased punishment.” 21
U.S.C. § 851(c)(1). At this hearing, the government “shall have the burden of proof
beyond a reasonable doubt on any issue of fact.” Id.3
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In this case, the government properly filed an information alleging Hernandez
had a prior felony drug conviction. Hernandez filed a response denying the
conviction. Accordingly, pursuant to § 851(c)(1), the district court held a hearing to
determine whether Hernandez had a prior conviction.
During the § 851 hearing, Hernandez repeatedly objected to the introduction of
evidence. First, Hernandez objected to the admission of the certified judgment of his
possession of cocaine charge. Hernandez claimed admission of the evidence violated
Rule 902 of the Federal Rules of Evidence because the document was a photocopy of
the certified judgment, not the original, and therefore it was not properly
authenticated. Second, Hernandez objected to the admission of booking photographs
taken of Hernandez after he was arrested for the possession of cocaine. According to
Hernandez, the photographs were not authenticated under Rule 902. See FED. R.
EVID. 902. Moreover, Hernandez argued that the probation officer that identified the
person in the photographs as Hernandez was not competent to testify about the
similarity of photographs, as she was not a facial recognition expert. Finally, on
hearsay grounds, Hernandez objected to the admission of the probation officer’s
testimony as to the Presentence Investigation Report (“PSR”), the certified judgment
of his prior possession of cocaine conviction, and her conversation with Hernandez’s
state probation officer. The district court dismissed each objection, reasoning that the
Federal Rules of Evidence do not apply to § 851 hearings.
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We have not explicitly determined whether the Federal Rules of Evidence
apply to § 851 hearings. The Eighth Circuit dealt with a similar situation in United
States v. Pratt, where the defendant challenged the district court’s reliance on
hearsay evidence at his § 851 hearing. 553 F.3d 1165, 1170 (8th Cir. 2009). The
Eighth Circuit categorized the § 851 hearing as part of the sentencing process and
did not consider the Federal Rules of Evidence, simply reasoning that “the rules of
evidence do not apply at sentencing.” Id. Instead, the court employed the
“sufficient indicia of reliability” standard federal courts use at sentencing hearings.
See id. at 1170–71; see also Ghertler, 605 F.3d at 1269.
Likewise, we conclude that the Federal Rules of Evidence do not apply at
§ 851 hearings because they are miscellaneous proceedings akin to sentencing
hearings. First, the Federal Rules of Evidence do not apply at sentencing, and prior
convictions are treated as sentencing factors. See FED. R. EVID. 1101(d)(3); see also
Gibson, 434 F.3d at 1244. Second, § 851 hearings are similar to sentencing hearings
insofar as they involve determining the existence of facts that, if proven, enhance an
individual’s sentence independent of the crime of conviction. Finally, § 851
hearings, like sentencing hearings, are post-trial bench proceedings in which the
judge is the finder of fact. Accordingly, whether to apply the Federal Rules of
Evidence during a § 851 hearing is left to the discretion of the district court. The
district court’s decision to disregard the Federal Rules of Evidence during the § 851
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hearing was, therefore, not an abuse of discretion.
We therefore consider whether the evidence satisfies the “sufficient indicia of
reliability” standard. We agree with the district court that the documents appear to be
reliable and authentic. Accordingly, the district court did not clearly err. See
Ghertler, 605 F.3d at 1269.
II.
During § 851 hearings, the government has “the burden of proof beyond a
reasonable doubt on any issue of fact.” 21 U.S.C. § 851(c)(1). We generally review
the interpretation of a criminal statute de novo. United States v. Rojas, 718 F.3d
1317, 1319 (11th Cir. 2013). When a party fails to object in the district court,
however, we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005). In order to establish plain error, a party must demonstrate: (1) the
district court erred; (2) the error was plain; and (3) the error affected the party’s
substantial rights. Id. If all three conditions are met, this Court “may exercise its
discretion to notice a forfeited error, but only if the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Id. To affect a
party’s substantial rights, the error “must have affected the outcome of the district
court proceedings” such that, absent the error, there is a reasonable probability of a
different result. Id. at 1299.
In this case, the district court improperly employed the preponderance of the
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evidence standard, as opposed to the beyond a reasonable doubt standard. See 21
U.S.C. § 851(c)(1). We review that choice for plain error because Hernandez failed
to object to the application of the wrong standard. See Rodriguez, 398 F.3d at 1298.
Hernandez satisfies the first two prongs of plain error review. The district
court’s application of the preponderance of the evidence standard was plainly
erroneous because § 851 requires the United States to prove the conviction beyond a
reasonable doubt. 21 U.S.C. § 851(c)(1). Hernandez fails to satisfy the third prong,
however, which requires establishing a reasonable probability that the outcome
would have been different if the district court applied the correct standard. See
Rodriguez, 398 F.3d at 1299.
Hernandez contends that the district court’s failure to apply the Federal Rules
of Evidence in his § 851 hearing affected his substantial rights. According to
Hernandez, but for the inadmissible evidence, the government would not have been
able to meet its burden of proof in establishing the prior felony drug conviction. But
we have already established that the Federal Rules of Evidence did not apply, and
Hernandez never challenged nor objected to the reliability or substance of the
documentary evidence. There was sufficient evidence for the district court to find
beyond a reasonable doubt that Hernandez was previously convicted of possession of
cocaine. Accordingly, it was not reasonably probable that the outcome of the
proceedings would have changed even if the district court had applied the correct
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standard. See id. The district court did not plainly err.
AFFIRMED.
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