United States v. Jose Hernandez, 37 F.4th 1316

Jose Hernandez, long-time leader ("Inca") of the Maywood, IL branch of the Almighty Latin Kings, was charged in 2016 with RICO conspiracy (18 U.S.C. § 1962(d)).
In 2019 Hernandez pled guilty, admitting the enterprise engaged in racketeering (threats, violence, extortion) and that he agreed to at least two predicate acts affecting interstate commerce.
Sentencing occurred December 10, 2020 via video under the CARES Act; the district court obtained Hernandez's consent but omitted a statutorily required finding that sentencing could not be delayed without serious harm to the interests of justice.
The PSR and government evidence (including audio recordings) attributed violent gang policies and specific violent acts to Hernandez: enforcing rules that justified shooting rivals, offering an AR-15 to members, personally shooting at rivals, and pointing a gun at officers.
The district court applied a Guidelines cross-reference to conspiracy to commit murder (USSG §2A1.5), producing a base offense level of 33 (versus 27 for attempted murder), adjusted for leadership (+3) and acceptance (-3); the court imposed 175 months’ imprisonment.
Hernandez appealed, arguing (1) the CARES Act interests-of-justice finding was omitted (requiring reversal) and (2) insufficient evidence supported the conspiracy-to-commit-murder cross-reference.

Issue	Plaintiff's Argument	Defendant's Argument	Held
CARES Act omission: failure to make statutory "interests-of-justice" finding before remote sentencing	Omission is nonwaivable error requiring reversal of sentence	CARES Act errors are subject to waiver/forfeiture; Hernandez forfeited by not objecting and suffered no prejudice	Forfeited; plain-error review fails because Hernandez cannot show prejudice or a reasonable probability of a different outcome; affirmed
Guidelines: whether evidence supported cross-reference to conspiracy to commit murder (base level 33)	Evidence was insufficient; at most membership/indirect proof, so base level should be for attempted murder (27)	PSR and government evidence (gang policies, audio recordings, weapons/offensive conduct, leadership role) provided adequate proof by a preponderance of the evidence	Clear-error review upheld district court’s finding that Hernandez conspired to commit murder; base offense level 33 affirmed

United States v. Coffin, 23 F.4th 778 (7th Cir. 2022) (CARES Act remote-sentencing findings are subject to waiver/forfeiture)
United States v. Williams, 949 F.3d 1056 (7th Cir. 2020) (plain-error requires reasonable probability of a different outcome to show prejudice)
United States v. Butler, 777 F.3d 382 (7th Cir. 2015) (enumerating plain-error factors)
United States v. Hall, 608 F.3d 340 (7th Cir. 2010) (preponderance standard for sentencing factfinding)
United States v. Garcia, 754 F.3d 460 (7th Cir. 2014) (gang-member liability for conspiracy supported by direct evidence such as recorded statements)
United States v. Garcia, 948 F.3d 789 (7th Cir. 2020) (clear-error standard for reviewing sentencing factual findings)
United States v. Miller, 834 F.3d 737 (7th Cir. 2016) (district court may rely on an unchallenged presentence report)

A FFIRMED