United States v. Jose Hernandez
678 F. App'x 189
| 5th Cir. | 2017Background
- Appellant convicted and sentenced; dispute centers on calculation of criminal history that slightly increased his Guidelines range (24–30 months vs. 18–24 months).
- Government moved to vacate and remand based on plain error; a divided panel initially denied that unopposed motion because the government had not briefed the fourth prong of plain-error review.
- Appellant has a lengthy criminal history (including an assault counted in his criminal history) and recent immigration and welfare-fraud issues; district judge imposed a high-end sentence within the slightly increased range.
- The appeal was delayed pending en banc guidance in Gonzalez-Longoria; appellant has been serving the higher sentence and was near release (March 22, 2017) when this panel ruled.
- Appellant also attempted a facial challenge to 18 U.S.C. § 16(b), which was foreclosed by Gonzalez-Longoria; he submitted factual evidence on appeal about a prior sentence that the court declined to consider.
- The panel concluded that any resentencing relief would be close to moot given imminent release and that correcting the error would not affect the fairness, integrity, or public reputation of the proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plain error occurred in criminal-history calculation | Appellant: sentencing range was improperly increased by counting a criminal history item | Gov: conceded error and sought vacatur/remand but initially failed to brief fourth plain-error prong | Court: acknowledged error but affirmed sentence because appellant failed to preserve objection and fourth prong not satisfied given circumstances |
| Whether the fourth prong of plain-error review (serious effect on fairness, integrity, reputation) is met | Appellant: relief appropriate to correct Guidelines miscalculation | Gov: later argued fourth prong satisfied | Court: fourth prong not satisfied—error did not seriously affect fairness/integrity/reputation under totality (criminal history, delay, imminent release) |
| Whether to exercise discretion to order resentencing for a slight sentence increase | Appellant: resentencing warranted despite small increase | Gov: initially sought remand; later argued for fourth-prong satisfaction | Court: declined to exercise discretion because relief would be minimal/moot and precedent permits denying relief for small differences |
| Whether new factual evidence about a prior sentence may be considered on appeal | Appellant: submitted evidence on appeal to challenge factual basis of criminal history | Gov: opposed consideration | Court: refused to consider new factual evidence first presented on appeal as not preserved for review |
Key Cases Cited
- United States v. Castaneda, 740 F.3d 169 (5th Cir. 2013) (describing the four prongs of plain-error review)
- United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc) (foreclosing appellant's § 16(b) challenge and governing related sentencing issues)
- United States v. Davis, 602 F.3d 643 (5th Cir. 2010) (declining discretionary resentencing where guideline range error changed a short-term range)
- United States v. Avalos-Martinez, 700 F.3d 148 (5th Cir. 2012) (declining resentencing where error affected sentence by only about one month)
- United States v. Villegas, 404 F.3d 355 (5th Cir. 2005) (exercising discretion to remand where guideline-range error materially affected sentencing)
- United States v. Lee, [citation="368 F. App'x 548"] (5th Cir. 2010) (refusing to consider factual evidence available at trial but first offered on appeal)