United States v. Hernandez, 2011 U.S. App. LEXIS 2414

Hernandez was charged with knowingly making a false material statement to an federal firearms licensee under 18 U.S.C. §§ 922(a)(6), 924(a)(2); he pleaded guilty based on the admitted facts.
The district court sentenced Hernandez to 97 months’ imprisonment, 3 years’ supervised release, and a $100 special assessment.
PSR and trial record described Hernandez purchasing 23 firearms (military-style) and paying $24,800 for firearms over a year, with at least 8 firearms later used in Mexico; contributed to a larger trafficking organization with ~22 members and ~328 firearms involved.
The PSR attributed responsibility for the purchase or attempted purchase of a conservative total of 103 firearms for sentencing purposes; district court considered upward departures under § 2K2.1 and § 5K2.0 for military-type rifles, large firearms numbers, and impact on cartels.
Hernandez objected to an upward departure; government urged 97 months based on quantity and military nature; court departed to 97 months, above the guideline range, and Hernandez challenged the sentence as Sixth Amendment error and unreasonable overall.
Appellate review affirmed, upholding the sentence as reasonable and not constitutionally prohibited by judge-found facts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence violates the Sixth Amendment by relying on judge-found facts	Hernandez argues the sentence is not permissible if based on judge-found facts	Hernandez contends the sentence is above the jury-adjudicated facts	Foreclosed; as-applied Sixth Amendment challenge rejected; within/above-guidelines decisions may rely on judge-found facts per precedent.
Whether the sentence is procedurally and substantively reasonable	Hernandez asserts procedural defects andreasonableness concerns	Hernandez contends the departure lacks adequate explanation and weight per factors	Sentence affirmed as procedurally adequate and substantively reasonable under the 3553(a) framework.

Rita v. United States, 551 U.S. 338 (2007) (as-applied Sixth Amendment breathing room; open for challenge post-Booker)
Gall v. United States, 552 U.S. 38 (2007) (reasonableness review; individualized consideration of factors)
United States v. Setser, 568 F.3d 482 (5th Cir.) (rejection of within-guidelines Sixth Amendment challenge; pre-Booker framework)
United States v. Campos-Maldonado, 531 F.3d 337 (5th Cir. 2008) (illustrates individualized assessment and discretion in departures)
United States v. Bell, 371 F.3d 239 (5th Cir. 2004) (discussion on whether district court must attribute weight to each departure ground)
United States v. Smith, 417 F.3d 483 (5th Cir. 2005) (adequacy of explanation for sentence outside guidelines)
United States v. Wallace, 461 F.3d 15 (1st Cir. 2006) (procedural adequacy of departure explanation in some contexts)