United States v. Hernandez

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0044n.06
Filed: January 17, 2007
No. 05-6349
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) KENTUCKY
JESUS ANTONIO HERNANDEZ, )
)
Defendant-Appellant. )
)
Before: DAUGHTREY, GIBBONS, Circuit Judges; and EDMUNDS, District Judge*
JULIA SMITH GIBBONS, Circuit Judge. Defendant Jesus Antonio Hernandez appeals
his sentence of 327 months for money-laundering conspiracy and engaging in a continuing criminal
enterprise. Hernandez asserts that the district court’s failure to state the reasons for his particular
sentence in open court was plain error in violation of 18 U.S.C. § 3553(c) and that his case should
be remanded for resentencing. Further, Hernandez argues that he entered into an involuntary plea
agreement on the basis of promises made by the prosecutor that were never fulfilled, and as a result
he should be allowed to withdraw his guilty plea. Because the district court’s failure to comply with
§ 3553(c) did not affect Hernandez’s substantial rights and therefore is not plain error, and because
his plea withdrawal argument fails, we affirm the judgment of the district court.
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District
of Michigan, sitting by designation.
I.
Hernandez was the leader of a drug ring that transported substantial quantities of marijuana
and money between Arizona and eastern Kentucky. According to both Hernandez’s plea and the
Presentence Report (PSR), members of the organization hid stacks of U.S. currency, packaged in
shrink-wrap, in the headliners of their vehicles. These vehicles were then driven to Arizona, where
Hernandez took possession of the money and loaded the vehicles with marijuana for return to
Kentucky. Various drivers transported the drugs over the years, but all were paid by Hernandez for
their services. Hernandez directed more than ten trips between Arizona and Kentucky over the
course of seven years, with each trip involving substantial quantities of marijuana. The PSR
estimated the total amount of marijuana attributable to Hernandez to be approximately 15,000
pounds, and calculated the total amount of money transported between Arizona and Kentucky to be
roughly $1,500,000. Hernandez directed at least five people in the conspiracy.
In mid-2003, DEA agents became aware of the distribution organization involving Hernandez
and his co-conspirators. Following the arrest and interrogation of several of his co-conspirators, on
April 21, 2004, Hernandez was charged along with a co-defendant in a two-count indictment with
drug conspiracy in violation of 21 U.S.C. § 846. Superseding indictments included additional
charges. The final Superseding Indictment was filed on August 26, 2004, and charged Hernandez
with involvement in a continuing criminal enterprise in violation of 21 U.S.C. § 848 and with a
money-laundering conspiracy in violation of 18 U.S.C. § 1956(h). Pursuant to a written plea
agreement, Hernandez pled guilty to violations of 21 U.S.C. § 848 and 18 U.S.C. § 1956(h) on
March 23, 2005.
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The court went over the plea agreement with Hernandez in detail at his plea hearing and
emphasized the implications of his guilty plea. Hernandez agreed with all the facts as they appeared
in the agreement and stated that he understood the consequences of his plea. The court found that
Hernandez was fully capable and competent of making an informed plea and that his plea was made
knowingly and voluntarily.
The PSR calculated Hernandez’s total offense level to be 37. This reflected 38 points for a
quantity of greater than 3,000 kilograms but less than 10,000 kilograms of marijuana, an additional
2 points because defendant was convicted under 18 U.S.C. § 1956, and a 3-point subtraction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a). Hernandez was previously convicted of
various crimes, including misconduct involving a weapon, solicitation to unlawfully possess narcotic
drugs, carrying a loaded firearm, and misconduct involving a weapon. These prior convictions
resulted in a criminal history category of III. This, when coupled with his total offense level, resulted
in a Guideline range of 262 to 327 months.
Hernandez was sentenced on August 11, 2005. The district court adopted the factual findings
and Guideline applications in the PSR and agreed that the correct Guideline range was 262-327
months. Hernandez informed the court that he had reviewed the PSR with his lawyer and had no
objections to it. Prior to sentencing, Hernandez’s attorney offered only that Hernandez knew he was
facing “a very, very long time” in jail, and asked for “the Court’s mercy and discretion to give him
the sentence at the lowest end, if at all possible.” When given the opportunity to speak, Hernandez
said only “I’m just sorry about it. I want to get it over with and do my time.” After stating that it
had “taken into account all of the factors articulated in Title 18, United States Code, Section
4
3553(a),” the district court sentenced Hernandez to a term of 327 months on Count One and a term
of 240 months on Count Three, to be served concurrently, producing a total term of 327 months.
II.
Because Hernandez did not object to his sentence, this court reviews the determination of the
district court for plain error. United States v. Aparco-Centeno, 280 F.3d 1084, 1087 (6th Cir. 2002);
Fed. R. Crim. P. 52(b). This court cannot correct that error unless it is “‘plain’ or ‘clear’ under
current law and . . . affects substantial rights.” United States v. Page, 232 F.3d 536, 543 (6th Cir.
2000) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). The defendant bears the
burden of persuasion to demonstrate prejudice in the plain-error inquiry. United States v. Newsom,
452 F.3d 593, 604 (6th Cir. 2006). Whether the government’s conduct violated its plea agreement
with a defendant is reviewed de novo. United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).
III.
Hernandez first argues that this case must be remanded for resentencing because the district
court failed to give reasons for sentencing him at the highest end of the advisory Guideline range as
required by 18 U.S.C. § 3553(c)(1). Section 3553(c), which United States v. Booker, 43 U.S. 220
(2005), left unimpaired, states:
(c) Statement of reasons for imposing a sentence. The court, at the time of
sentencing, shall state in open court the reasons for its imposition of the particular
sentence, and, if the sentence —
(1) is of the kind, and within the range, described in subsection (a)(4)
and that range exceeds 24 months, the reason for imposing a sentence
at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection
(a)(4), the specific reason for the imposition of a sentence different
from that described, which reasons must also be stated with
specificity in the written order of judgment and commitment . . . .
5
18 U.S.C. § 3553(c). The government argues that the district court did not commit error because it
effectively complied with the requirements of § 3553(c), and even if the court did err, any such error
did not affect Hernandez’s substantial rights.
This court’s plain error analysis consists of four distinct considerations. United States v.
Thomas, 11 F.3d 620, 630 (6th Cir. 1993). To establish plain error, a defendant must show:
(1) that an error occurred in the district court; (2) that the error was plain, i.e.,
obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that
this adverse impact seriously affected the fairness, integrity or public reputation of
the judicial proceedings.
United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). Hernandez’s Guideline range
spanned 65 months (262-327), but the district court did not state in open court why it chose the
particular sentence within the Guidelines that Hernandez received. Accordingly, it did not comply
with the dictates of § 3553(c)(1) and therefore committed error. See United States v. Lewis, 424 F.3d
239, 246 (2d Cir. 2005) (finding that a sentence imposed without complying with the still-applicable
post-Booker requirements of § 3553(c) constitutes error, even assuming its length is reasonable).
In light of the clarity of the statute and the record, this error was “obvious or clear.” Koeberlein, 161
F.3d at 949; see also United States v. Gore, 298 F.3d 322, 325 (5th Cir. 2002) (finding in 3553(c)(2)
context that “[t]he text of the statute (‘in open court’) leaves no doubt that although it did issue
written reasons, the district court committed error that is plain by failing to explain the reasons for
the departure”).
This court has mentioned the articulation requirement § 3553(c) on several occasions, but
has not directly addressed whether the failure to comply with this section necessarily affects a
defendant’s substantial rights and therefore constitutes plain error. See, e.g., United States v.
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Jackson, 408 F.3d 301, 305 (6th Cir. 2005) (mentioning the § 3553(c) requirement, but ultimately
vacating and remanding for resentencing because the district court’s minimal discussion rendered
reasonableness review impossible).1
Other circuits that have addressed the issue provide some insight. In United States v. Vences,
the Ninth Circuit, in dictum, found there was no plain error where a district court fails to articulate
in open court the reasons for a departure. 169 F.3d 611, 613 (9th Cir. 1999). In Vences, the district
court made no effort to explain the departure in open court as required by § 3553(c)(2) but did
engage counsel in a discussion, and “the court’s reasons were implicit in the colloquy the court had
conducted with counsel.” Id. The Vences court concluded that a remand for the sake of compliance
with the technical dictates of § 3553(c) “would be a meaningless formality.” Id. The Eighth Circuit
has found that a district court’s adoption of the PSR (which the district court did here) is sufficient
to avoid plain error where that court has failed to follow the “open court” provision of § 3553(c).
United States v. Evans, 272 F.3d 1069, 1089 (8th Cir. 2001). The Fifth Circuit arrived at a similar
conclusion in Gore. 298 F.3d at 325 (finding in a Guidelines departure case that the “key aim of the
articulation requirement [in § 3553(c)] is satisfied if an appeals court can review the reason for the
departure.”). The First Circuit has also explicitly relied on a district court’s reference to the PSR as
an indicator of sufficient specificity to allow appellate review. United States v. Cruz, 981 F.2d 613,
1
Hernandez points to Jackson as evidence that this court considers failure to comply with
§ 3553(c) to be plain error. (Final Br. of Appellant at 7-8.) This is an oversimplification,
however, as Jackson has little in common with this case. Jackson involved a downward
departure from the Guidelines. Yet, the district court in Jackson “did not include any reference to
the applicable Guidelines provisions or further explication of the reasons for the particular
sentence imposed” and also failed to mention or consider § 3553(a). Jackson, 408 F.3d at 305.
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617-18 (1st Cir. 1992) (finding reference to the PSR met the § 3553(c) requirements “by the
narrowest margin”).
Hernandez emphasizes the Second Circuit’s holding in Lewis, where the court concluded that
the district court’s failure to state specific reasons for its sentencing decision satisfied the plain error
analysis because only such a statement would allow the defendant “a platform upon which to build
an argument that her sentence is unreasonable.” 424 F.3d at 247. Hernandez’s reliance on Lewis
is misplaced, however, as that case is distinguishable. As an initial matter, Lewis dealt with §
3553(c)(2), which concerns a sentence that departs from the Guidelines range, while Hernandez was
given a sentence within the Guidelines range. See id. at 243. The Lewis court also “slightly relaxed”
the plain error review, as acknowledged by Hernandez. Id. at 248. Finally, the Lewis court
concluded the district court had “stat[ed] no reasons at all” for its sentencing decision. Id. at 245.
As discussed below, the district court in this case did articulate its reasoning by reference to the §
3553(a) factors.2
Here, the district court explicitly stated that it sentenced Hernandez only after “having taken
into account all of the factors articulated in Title 18, United States Code, Section 3553(a).” The
court also expressly adopted the PSR, which details how Hernandez coordinated and directed his
employees in a drug trafficking conspiracy that spanned seven years, involved automatic weapons,
numerous people, thousands of pounds of drugs, and millions of dollars. The court informed
Hernandez that it would “have to look to a number of factors to determine the appropriate sentencing
2
Hernandez argues that district court’s “failure to state its reasons now prohibit this Court
from being able to review the sentence for unreasonableness” but does not explicitly seek a
review for reasonableness. (Final Br. of Appellant at 6; 8.)
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guideline range in your case. I have to look at things like your role in the offense and your criminal
history, just to name a couple.” The district court invited any arguments Hernandez might have with
respect to § 3553(a), but Hernandez’s counsel stated only that Hernandez knew he was facing a long
sentence and that he had “learned his lesson.” When given the chance to speak, Hernandez said only
“I’m just sorry about it. I want to get it over with and do my time.” When asked if there was any
legal reason the given sentence should not be imposed, Hernandez’s counsel stated there was not.
Although the district court did not say why it chose a sentence at the high end of the advisory range
as opposed to a lower one, it gave a generalized picture of its reasoning.
Finally, Hernandez was the leader of a substantial drug trafficking ring that transported
marijuana (with the aid of numerous employees and weapons) over a six to seven year period. His
previous convictions also suggest a long-term lack of concern for compliance with the law. In light
of the entire record, the court’s failure to comply with § 3553(c) does not affect Hernandez’s
substantial rights. Cf. United States v. Kingsley, 241 F.3d 828, 836 (6th Cir. 2001) (finding that a
sentencing court’s failure to expressly explain its reasons for exacting a particular special condition
of supervised release will be deemed harmless error if the supporting reasons are apparent on the
overall record, and accordingly did not amount to plain error under § 3553(c)). The error here does
not rise to the level of plain error.3
IV.
3
Because we find that the district court’s error did not affect Hernandez’s substantial
rights, we need not address whether the error “seriously affected the fairness, integrity or public
reputation of the judicial proceedings,” as is required under the fourth prong of the plain error
analysis. See Thomas, 11 F.3d at 630.
9
Hernandez also asserts that he entered into an involuntary plea agreement on the basis of
promises made by the prosecutor that were never fulfilled, and as a result he should be allowed to
withdraw his guilty plea. As an initial matter, Hernandez’s claim that the United States promised
to have his related state court charges dismissed is moot, as the indictment pending against
Hernandez in Ohio state court was dismissed on February 22, 2006, as acknowledged by Hernandez
in his Final Reply Brief.
Hernandez also asserts, however, that “as part of the plea agreement, Mr. Hernandez agreed
to provide substantial assistance to the government in exchange for the filing of a downward
departure motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) by the government.” This
claim also fails. Hernandez knowingly pled guilty with the assistance of counsel. The agreement
stated only that “If the Defendant provides substantial assistance in the investigation or prosecution
of other persons who have committed an offense, the United States will consider filing a motion for
a downward departure from the sentencing guidelines pursuant to 5K1.1 and 18 U.S.C. 3553(e) and
applicable statutory minimum mandatory sentence. The decision to file a motion is solely within the
discretion of the United States.” (emphasis added). The agreement clearly noted that it was “the
complete and only Plea Agreement” between the parties, and that the “United States has not made
any other promises to the Defendant.” Further, Hernandez expressly told the district court that he
had carefully reviewed the plea agreement with his lawyer, that he understood its terms and
conditions, and that no one had made any further promises to him that were not embodied in the
agreement.
Despite this, Hernandez contends that the United States promised to file a 5K1.1 motion if
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he persuaded his family members to plead guilty and that this agreement was simply not
memorialized in the plea agreement. The existence of a separate, unwritten plea agreement must be
proven by clear and convincing evidence. United States v. Herrera, 928 F.2d 769, 773 (6th Cir.
1991). The only “evidence” provided by Hernandez is his argument that the government’s offer to
help get the state court claims dismissed was also not embodied in the plea agreement. This
attenuated analogy alone does not rise to the level of clear and convincing evidence, and accordingly
Hernandez’s attempt to withdraw his plea on this basis fails as well.
V.
For the foregoing reasons, we affirm the judgment of the district court.
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