United States v. Rolando Hernandez
634 F.3d 317
5th Cir.2011Background
- Hernandez, a Salvadoran citizen, was arrested in Texas in 2009 after previously being deported in 2002 and illegally reentering.
- He pleaded guilty to one count of illegal reentry, and his criminal history includes burglary, assault, DWI, and evading arrest.
- Included in his prior history is a 2007 Texas obstruction of a highway or other passageway (Class B misdemeanor) for which he received 15 months’ probation, later revoked to 150 days in jail.
- The district court counted the obstruction offense in calculating Hernandez’s criminal history score, yielding a history category IV and an offense level of six (6), with a 6–12 month Guidelines range.
- Hernandez objected that obstructing a passageway is “similar to” loitering and thus should be excluded under 4A1.2(c)(2); the district court overruled, and he was sentenced to 12 months.
- The Fifth Circuit adopted a common-sense approach to determine similarity and affirmed the sentence, holding obstructing a highway is not similar to loitering.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether obstructing a highway is similar to loitering under 4A1.2(c)(2). | Hernandez argues similarity to loitering warrants exclusion. | The government contends obstructions differ and are countable. | Not similar; obstruction counts. |
| Applicability of the common-sense four-factor approach to similarity determinations. | Hernandez relies on traditional element-based comparison. | Court should apply common-sense factors including punishment and culpability. | Adopted common-sense approach with factors. |
| Role of mens rea and culpability in comparing offenses for Guidelines purposes. | Loitering and obstruction may share minimal culpability. | Different mens rea and harms justify non-similarity. | Different culpability supports non-similarity. |
| Whether the punishment level of the obstruction offense supports a finding of significance for sentencing. | Punishment is not dispositive of similarity. | Substantial punishment indicates seriousness distinct from loitering. | Punishment level supports non-similarity. |
| Whether the record shows the obstruction offense was a serious crime meriting heightened punishment. | Original probation sentence is sufficient to show seriousness. | Combined sentence (probation plus revocation) shows seriousness. | Record shows significant seriousness; upheld sentence. |
Key Cases Cited
- United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991) (common-sense approach for similarity determinations under Guidelines)
- United States v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002) (considering the entire episode and underlying facts to assess culpability)
- United States v. Gadison, 8 F.3d 186 (5th Cir. 1993) (look to underlying facts rather than categorical offense alone)
- Spaulding v. United States, 339 F.3d 20 (1st Cir. 2003) (addressing similarity analysis in Guidelines context)
- United States v. Lamm, 392 F.3d 130 (5th Cir. 2004) (shoplifting vs. bad check—different risk of harm to others)
- United States v. Sanchez-Cortez, 530 F.3d 357 (5th Cir. 2008) (considering state offense classification and harms in comparing offenses)