United States v. Aaron Hernandez

SMITH, Before GARZA and SOUTHWICK, Judges. Circuit Gu- GARZA, Judge: bring would the cocaine back. When Circuit EMILIO M. balked, per- that the explained erra Daniel Aaron Defendanh-Appellant not want to holding son the cocaine did and sentence for his convictions appeals eventually gave meet Guerra. Guerra intent to dis- possess conspiracy took the money, Daniel the but Daniel (2) aiding abetting tribute cocaine waiting in a car. money and fled af- money. "We government the theft grand jury A returned two-count convictions, his but we vacate firm the Hernandez, wife Eri- against dictment proceed- for further and remand sentence Daniel, Carrillo, person.1 another ca ings. charged all four defen- The indictment pos- of conspiracy dants with one count to I or grams intent to distribute 500 sess with Investigation A Federal Bureau cocaine, in violation of U.S.C. more of (“FBI”) from information a agent received 841(B)(ii) 841(a), §§ & 846. And Guerra, source, Lorenzo that confidential Hernandez, Daniel, and Carrillo charged kilogram quanti- “selling Hernandez was abetting the theft and aiding with and arranged a meet- ties of cocaine.” Guerra $17,000 in to their own use of conversion resi- the latter’s ing with Hernandez FBI, in currency belonging to the U.S. of cocaine. purchase to discuss the dence violation of 18 U.S.C. 641. meeting, At Hernandez showed Guerra on Febru- The indictment was unsealed and indicated a amount of cocaine small Hernandez, ary upon the arrest of kilogram. sell him one Her- that he could thereafter, Daniel, Shortly and Carrillo. brother, Dan- told Guerra that his nandez an Attorney Sergio ap- Gonzalez entered (“Daniel”), kilogram Hernandez had the iel for Hernandez and his wife Car- pearance he should return to of cocaine that for the Her- hearing rillo. At a detention later, days talk to Daniel. Two Guerra day, Attorney nandez brothers that same returned to Hernandez’s residence represented that he had Gonzalez revealed tentatively agreed purchase to one kilo- felony in in court that Daniel case state from Hernandez for gram of cocaine had been dismissed a week earlier. $17,000. Hernandez meeting, At this amount of again eventually showed Guerra a small court set a hear- The district cocaine; a .45 cali- he also showed Guerra the conflict of interest stem- ing to review in that he had tucked handgun ming Attorney represen- ber from Gonzalez’s $17,000 finalized the waistband. Guerra tation of both Hernandez and his wife. price subsequent telephone in a purchase The court found that a conflict of interest conversation with Daniel. to withdraw existed and ordered Gonzalez representation from of Carrillo. later, in days

A met Daniel few Guerra trial, complex days Five before the Government parking apartment lot of an Attorney $17,000 pur- disqualify moved to Gonzalez complete in FBI funds to repre- on his in truck and counsel for Hernandez based got chase. Daniel Guerra’s felony in mat- apart- sentation of Daniel the state the two of them drove to another had mentioned they stopped, Daniel ter that Gonzalez complex. ment After hearing. The Government’s mo- give money to him the and he detention told Guerra changes. grand jury superseding tive 1. The later returned a any substan- indictment that did not contain pleaded guilty to [prosecutor],” tion stated Daniel had prosecutor before the said, that it right[;] to both counts the indictment and “You’re It’s bad case[ ]” and call dismissed probably Attorney would Daniel as a witness at the case. Gonzalez further stated that Hernandez’s trial. It contended that At- he and Daniel “never' - even had an torney attorney/client would have a conflict of Gonzalez communica- tion” and that testify nothing interest if Daniel were to “there’s that I called could use adverse that I might learned from him because Gonzalez have information be- cause we had never had a attorney/client an communication.” relationship from (1) Attorney Gonzalez also him advised the district prevent representing would from Daniel was aware that Gonzalez effectively Hernandez would cause going represent to this attorney/client him to breach the privilege objection. case had not voiced an he owed to Daniel. The Government re- district court denied the Government’s mo- quested a hearing” “Garcia to ensure a tion disqualify Gonzalez. right valid waiver Hernandez of his representation free from any conflict of afternoon, That the Government re- Garcia, interest. See United States v. 517 newed the motion with support from Dan- 272, Cir.1975), abrogated on iel’s attorney this case. Daniel’s coun- grounds by Flanagan other v. United argued sel that his client being risked States, 259, 2, 465 U.S. n. 263 & 104 S.Ct. prejudiced by attorney’s, his former cross- (1984). 79 L.Ed.2d Attached to examination if he was called testify to motion, its cop- Government submitted trial. The district court replied that At- ies of state court showing documents torney explained Gonzalez had that “he represented Gonzalez had Daniel for one didn’t even talk to during [Daniel]” day February February 3 to prior representation. Further, the district —from felony when the state case was dis- court any stated that cross-examination of missed. The Government also indicated by Attorney Daniel Gonzalez would be lim- that Daniel had advised it that Attorney ited. The orally court then denied the represented Gonzalez him on another occa- Government’s motion to disqualify Gonza- sion as well. lez a second time. day, The next district court issued a deny- written order morning trial, On the of day the first of ing the Government’s motion. The district the district court held a hearing prior to Attorney concluded that Gonzalez’s jury selection on the Government’s motion prior representation of Daniel did not to disqualify-Attorney Gonzalez. At the present (1) a conflict of interest because hearing the Government acknowledged prior Daniel’s case was unrelated to the prior case, that Daniel’s state which (2) case, current representation Gonzalez’s charges volved felony marijuana of posses- of Daniel in the prior case had unambigu- sion, was not related to this case. 'Howev- ously ended representation before his er, the Government expressed concern (3) began, Hernandez prior rep- Gonzalez’s planned that it to call Daniel as a witness “extremely resentation of Daniel was limit- in the instant case Attorney and that Gon- (4) ed,” and Gonzalez had attested that he zalez might effectively not be able to cross- anything did not learn prior repre- him examine without a conflict of interest sentation of Daniel that he could use to arising. Attorney Gonzalez responded harm either Hernandez or Daniel. that he had “never even with ... spoke case; regarding Daniel” the prior he said Daniel did not testify ensuing at the simply trial, he had up “showed at the first jury and the found guilty file,” hearing,” “looked and “talked on both counts. cently represented Daniel and had dis- conspiracy of- the cocaine

For count (“PSR”) wife, present case with Daniel’s fense, report de- cussed presentence court should have held a Gar- base offense the district that Hernandez’s termined Attorney hearing § cia to determine whether 2D1.1. The PSR 26. U.S.S.G. level was by had a conflict of interest and offense level Gonzalez then increased his base prejudice that conflict would Her- dangerous of a whether possession two levels AK-47 nandez. Hernandez further asserts that and “two weapon handgun —the to call adjusted Attorney him an of- Gonzalez’s failure Daniel giving style rifles”— (b)(1). provides evidence of a conflict § 2D1.1 For as witness fense level of 28. Id. interest; money he maintains that because government count the theft only offense, that Hernan- Daniel was the witness who could determined PSR defense, only level was 6. Id. corroborate Hernandez’s dez’s base offense for Gonzalez’s decision not to explanations § 2B1.1. The PSR then increased his (1) four levels call Daniel were the existence of offense level because base $10,000 than conflict of interest and the theft involved more $30,000, 2Bl.l(b)(l)(C), warning take id. court’s Gonzalez not to less than adjusted advantage prior representation an of his thereby giving him offense . higher Accordingly, used the of Daniel. Hernandez asks us level of 10. PSR adjusted proceedings offense to to remand to the district court Hernandez’s two levels hearing so that it can conduct a determine his total offense level—28—and Garcia adversely whether the conflict it then added one-level multi-count ad- determine Attorney justment pursuant performance to U.S.S.G. 3D1.4. affected Gonzalez’s a total offense level of 29 and a at trial. With II, history category criminal Hernan- right “The Sixth Amendment advisory sentencing range dez’s under the ‘right representa counsel includes the months, 121 Guidelines was 97 to accord- any tion that is free from conflict of inter

ing to the PSR. ” Garcia-Jasso, States v. 472 est.’ United and, adopted The district court the PSR (5th Cir.2006) (quoting 243 F.3d Unit finding depart no reason to from the Vaquero, ed States v. 997 F.2d 89 range, sentenced him to concur- Guidelines Cir.1993)). rule, general a a “As conflict imprisonment. rent 120-month terms of exists when defense counsel allows a situa (1) The district court assessed a fine in the tempts a tion to arise that division coun $2,500 special amount of and a assess- $200 Burns, loyalties.” sel’s United States v. money judgment ment and rendered a F,3d (5th Cir.2008) (citing 526 856 $17,000. of forfeiture in the amount of Garcia-Jasso, 243). 472 at “If a F.3d appeal This followed. proceed repre chooses to defendant by counsel has a conflict of

sentation who II interest, a court what district must conduct commonly hearing’ a known as ‘Garcia A to ensure a valid waiver the defendant First, right.” Hernandez claims that of his Sixth Amendment Garcia- Jasso, Garcia, (citing at 517 district court erred when it determined F.3d 278). However, Attorney prior representa at Gonzalez’s F.2d district hearing if present only tion of Daniel would not an actual needs to “conduct Garcia interest,” an actual conflict of id. conflict of interest at trial. He contends there is “ (citation omitted), specu- to ‘a Attorney opposed because Gonzales had re- Burns, potential’ biguously Infante, lative or conflict.” terminated.” 798-99). Perillo, v. In (quoting (citing F.3d at 856 United States at 392 205 F.3d at (5th Cir.2005)). A fante, 404 F.3d We hold that the conflict here remained that an actu district court’s determination Burns, purely hypothetical. question al conflict not exist is a mixed did First, Attorney represented Gonzalez fact, of law and which we review de novo. to the district court that he did not learn (citations omitted). Id. any confidential information from his brief representation of Daniel in an unrelated Attorney To determine whether felony proceeding. state interest, While Hernandez had an actual conflict of Gonzalez asserts that it was unreasonable for the Attorney “we must ask whether [Gonzalez] interest, district Attorney court to credit labored under a conflict of which Gonzalez’s representations, merely hypothetical, was not and whether district court reason ably them adversely repre that conflict affected the found credible due to the brevi (i.e., ty prior an actual of his representation sentation whether fact conflict).” (citations omitted). Id. at 392 that the proceedings two were unrelated. Perillo, (“Where, Because Hernandez concedes that there is See 205 F.3d at 799 how ever, insufficient evidence in the record to deter defense counsel’s involvement in the alleged mine whether the conflict adverse prior representation was either transient ly Attorney represen affected Gonzalez’s insubstantial, or we have been less inclined tation, only we need decide whether the conflict.”) (citation to find an actual omit conflict alleged merely hypotheti ted). was not Further, although Attorney Gonza cal. Id. lez’s representations two relevant were time, close his representation of Daniel representation “Joint does not had unambiguously ended rep before his necessarily create conflict of interest.” resentation of began. Id. Rico, United States v. (‘Where 798-799 ... pri- defense counsel’s (5th Cir.1995). In such situations a non- representation unambiguously terminat hypothetical only conflict exists “when de ed representation before the second began, compelled fense counsel is to compromise the possibility that defense counsel’s con duty his or her loyalty or zealous advo tinuing obligation to his former client will cacy by choosing to the accused between impede representation his of his current blending divergent or the or competing lower.”) (citation client generally is much interests of a former or current client.” omitted). Johnson, Perillo v. Cir.2000) (citations omitted). Deciding Attorney Hernandez contends that Gon “whether a disqualifying conflict exists is zalez’s decision not to call Daniel as a Burns, highly fact-dependent.” supports witness his assertion that Gonza (citation omitted). at 856 We have found prior representation lez’s of Daniel created that depends this determination on a num a conflict of interest. At hearing the on factors, ber of ... “including, whether the the disqualify, Government’s motion to the attorney argued has confidential information that might Government that Hernandez is helpful to one client but harmful to want to call testify regarding Daniel to another; closely whether and how the sub statement he made to an investigator be ject multiple matter of the representations eventually pleaded fore he guilty. In the related; statement, is multiple how close time the earlier Daniel said that the related; representations are and whether always planned simply brothers had prior the representation money has been unam- steal the from the confidential court, we review adjustment have been that could statement

source—a To plain defense that claim for error. show revers- Hernandez’s his support used error, to sell co conspired Hernandez must show a plain never ible the brothers the However, foregoing, given error caine. clear or obvious that affects his sub- con support Hernandez’s States, does not rights. record stantial Puckett v. United refrained Attorney Gonzalez that 129, 135, tention U.S. S.Ct. testify because of Daniel to calling (2009). from If he makes that L.Ed.2d 266 is, That “[t]here conflict. alleged showing, we have discretion to correct that the failure call [to to indicate nothing only seriously if it error but affects loyal ... ‘divided the result of was Daniel] fairness, integrity, public reputation or in an actual con would result ties’ which judicial proceedings. Id. strategy.” to a tactical trial opposed flict that the Hernandez claims district

Burns, 526 F.3d at 857. that committed clear error affected Hernandez did not Accordingly, because by sentencing him to a rights substantial Attorney labored Gonzales establish imprisonment term of months above the conflict of inter- non-hypothetical under a top-end proper range. of the Guidelines est, court did conclude that district “we Further, he claims that the district court’s to conduct a Garcia failing not err in seriously integ- error affected Garcia-Jasso, 245; 472 F.3d at hearing.” rity, reputation judicial public attorney did not have (holding see id. because the court intended to proceedings appel- an actual conflict of interest because give him a sentence within the Guidelines “rely speculation on and infer- lant’s claims error, range, gave but due to the court’s by the rec- unsupported that are ences year top-end him a sentence one above the ord”). range. of the correct Guidelines B concedes, As Government Second, claims that the dis- Hernandez clear district court committed error error when it plain trict court committed adjust employing one-level multi-count adjusted his total offense level calculated ment to Hernandez’s total offense level He as- Sentencing under the Guidelines. § pursuant to U.S.S.G. 3D1.4. erroneously the district court serts clearly eligible not for a multi-count by employing his offense level increased adjustment under 3D1.4 because his adjustment pursuant one-level multi-count money government theft of offense was “9 § contends that the to U.S.S.G. 3D1.4. He than co or more levels less serious” error increased his offense district court’s conspiracy caine offense. See U.S.S.G. which, 29, combined level from 28 to when 3D1.4(c) (providing that courts should history category, with his criminal “disregard that 9 or more [offenses are] advisory range creased his Guidelines Group than the with the levels less serious imprisonment from 87-108 months to 97- purposes levels” for the highest offense adopted 121 months. The district court adjustment); a multi-count see employing PSR, depart to from found no reason Villegas, v. 404 F.3d also United States Her- range, the Guidelines and sentenced (5th Cir.2005) (holding 364 dis terms of nandez to concurrent 120-month by clear error com trict court committed imprisonment. it to mitting an obvious error that caused from its impose did not a sentence resulted Because Hernandez Guidelines). object application multi-count incorrect to the district court’s

621 In that his above range”); order establish the correct see United Carrizales-Jaramillo, rights were affected this States v. substantial 303 Fed. (5th Cir.2008) curiam) error, Appx. Hernandez must “show a reasonable (per that, for the on probability (vacating plain but district court’s sentence error review Guidelines, of the he would where the correct misapplication and incorrect Guidelines ranges overlapped by have received a lesser sentence.” United month and the one (5th Villegas, imposed States v. 404 F.3d court a sentence one month high Cir.2005) curiam).2 Gaither, (per overlap); addi er than the “[A]bsent 434 Fed. cf. evidence, a defendant a Appx. (holding tional has shown at 393-94 that Guidelines probability that he would have reasonable error did not warrant vacatur of defen (1) received a lesser sentence when dant’s plain sentence on error review mistakenly district court calculates the where correct and incorrect Guidelines (2) wrong range, ranges overlapped by Guidelines the incorrect two months and the higher than the range significantly imposed true a sentence six high months (3) range, and the defendant is er than overlap). Guidelines range.” sentenced within the incorrect Further, in Mudekunye, there is no Mudekunye, v. United States evidence in the suggests record that (5th Cir.2011) curiam) (cita (per imposed district court would have an omitted). tions sentence of 120 if above-Guidelines months Mudekunye, In we held that cases the district court had considered the accu-. range where the correct and incorrect Guidelines rate Guidelines months. —87-108 John, ranges overlap, imposes Mudekunye, but the court (citing 646 F.3d 285). significantly top-end sentence above the of 597 F.3d at The district court mere- range, imposed ly adopted the correct Guidelines the PSR and found no reason to affects the depart range. sentence defendant’s substan- from the Guidelines rights apparent tial “where it is not from Although the correct and erroneous the record that would have [the defendant] Guidelines ranges overlapped signifi- more received an sentence.” above-Guidelines cantly they here than did in Mudekunye, (quoting United States v. short, reasoning persuasive. we find its In Cir.2010)). John, (1) substantial, given 12-month dispar- Here, similarly Mudekunye, ity cor- top-end between the of the correct ranges rect and incorrect Guidelines over- range imposed Guidelines and the sentence months, lapped by 11 any the district court the lack of indication in the imposed higher a sentence 12 months than record that the district court would have top-end of the correct imposed Guidelines an above-Guidelines sentence if it range. (holding Id. range, had considered the correct con- we misapplication court’s af- the Guidelines clude that Hernandez has shown a reason- “that, rights fected the defendant’s substantial able probability but for the district Guidelines, the “correct and misapplication where incorrect sentenc- of the he court’s month, ing ranges overlapped] by one would have received a sentence.” lesser Therefore, the Villegas, [and was sentenced well 404 F.3d at 364. he defendant] outside the one month 19 months overlap, has demonstrated the district court’s " recently, fully "As noted our court has not reinstate the same sentence.' United States substantial-rights Gaither, resolved whether a (5th Cir.2011) different Fed.Appx. v. effect, i.e., standard also remains in 'if the curiam) (citation omitted). (per remanded, judge case were the trial could to correct the error.” 646 rights. Mu- our discretion substantial affected his

error John, 291; 597 F.3d at 289 at 291.3 F.3d at see dekunye, 646 F.3d (holding appropriate that it is to exercise we have determined Because discretion to vacate and remand for our three the first has satisfied no indication resentencing “when there is error, wé must decide plain elements of court would have selected that the district to re our discretion whether to exercise of the regardless applicable the sentence may only ex resentencing. We mand for sentence im range, and the Guidelines to correct our discretion ercise erroneously on an calculat posed is based “seriously affectfs] if it error plain court’s ... at when the range, ed Guidelines least reputation integrity public or materially substantially sentence is Puckett, 556 U.S. judicial proceedings.” properly range”). calculated above “[U]ltimately, 129- S.Ct. 1423. at Moreover, the district court’s error was seriously error af sentencing whether obvious, involving straight particularly fairness, integrity, or.public repu fects misapplication plain of the lan forward dependent is judicial proceedings tation of John, 597 guage of the Guidelines. par the error and the upon degree Cf. (Smith (“The J, dissenting) at 290 F.3d John, case.” 597 F.3d ticular facts of the forfeited error panel majority declares this at 288. manu ‘plain,’ although to be takes five “generous been Although we have explain why it was error at script pages to employing prong the fourth remand” when all.”). Lastly, though even the record of sentencing in plain of the error test aggra Hernandez’s offense contains some context, not convinced that “we are elements, vating those elements do not point on this is settled or as case law exercising to refrain from our persuade us language in some cases categorical as un resentencing discretion to remand for it seem.” States v. might make United particular der the facts of this case. (5th Ellis, 370, 378 & n. 44. Cir. Cf. 564 F.3d Gaither, (holding at Fed.Appx. cases). 2009) (collecting are also We not warrant remediation offense did precedent declining of “our ‘to mindful where record showed it domes “involv[ed] adopt prejudice a blanket rule that once violence, firearm; drugs, tic and a a lead error plain prong], found under the [third ” ership gang; role within a violent invariably requires the error correction.’ charges possessing deadly for pending Escalante-Reyes, States v. United (citations weapon prison”) while omit 425-26, at 2012 WL ted). (5th Cir.2012) (en banc) (alteration in *7

original) (quoting Reyna, United States v. (5th Cir.2004) (en banc)). Ill Nonetheless, Mudekunye, con- we convictions. We AFFIRM Hernandez’s particular

clude that under the facts of this above, case, For the reasons stated we VA- disparity between substantial “[t]he and RE- CATE Hernandez’s sentence imposed applicable sentence and the range proceedings. Guidelines warrants the exercise of MAND further position regarding point Guidelines 3. We take no between the correct and incorrect materially which a sentence becomes or sub- ranges analysis. See United would affect our range. stantially proper Guidelines above Price, v. 289 n. 28 States John, See 597 F.3d at 289. We also no take Cir.2008). position regarding overlap whether additional

623 be,”4 SMITH, only it reserved for the most Judge, should E. Circuit JERRY “serious,”6 “grievous”7 and “egregious,”5 dissenting: errors. should thus exercise our dis- We dissent, although the ma I respectfully only to reverse in “blockbuster”8 cretion Hernandez’s con correctly decides jority in so flagrant cases which the error is holds properly claim and flict-of-interest it the fundamental fair- “undermine[s] an obvi court committed that the district system ness”9 of our and offends “core likely affected Hernandez’s ous error justice”10 such that “the trial notions point one rights when added substantial judge prosecutor and derelict in [were] for a multi guideline to the calculation it.”11 “An error that warrants permitting § 3D1.4. count indictment under U.S.S.G. despite contemporaneous-ob- reversal analysis, prong plain-error At the fourth that, uncorrected, jection rule is one if left this court should not exercise its discretion would shock conscience of the common reverse, way in because no does the man, powerful serve as a indictment “seriously integri affect the error system justice, our or against seriously ty reputation judicial proceed public or question competence integ- call into Olano, v. 507 ings.” United States U.S. rity of the judge.” district Id. at 435 732, 1770, 725, 113 S.Ct. 123 L.Ed.2d 508 (Smith, J., (1993) (internal dissenting). quotation marks and alter omitted). majority perpetuates ations This court has adopted nonetheless an unseemly “being court’s habit of far this “generous” that is approach “permis- permissive plain-error more on review sive,”12 reversing plain-error on review Supreme than the Court and common over 180 times since Olano was decided sense allow.” United States v. Escalante- over 72% of the cases which the 415, 431-36, Reyes, 689 F.3d 2012 WL prong fourth was reached. Id. at 433-34 Cir.2012) (en banc) 3024195, at *13-17 (Smith, J., dissenting). This lax applica- (Smith, J., dissenting). only tion of review not plain-error runs directives, Supreme afoul to the Court’s

I. severely but also undermines this court’s longstanding Contemporaneous Objection “exceptional,”1 plain Reversal on error is Rule, “rare,”3 “difficult, sparingly,”2 which “used Atkinson, 157, 160, Robinson, 941, v. 627 1. United States v. 297 U.S. 7. United States 956 391, (1936). (4th Cir.2010). 56 S.Ct. 80 L.Ed. 555 1, 15, Young, 2. United States v. 470 U.S. 105 967, Taylor, 8. United v. 54 F.3d States 1038, (1985) (citing S.Ct. 84 L.Ed.2d 1 United (1st 1995). Cir. 152, 14, Frady, v. 456 U.S. 163 & n. States 1584, (1982)). 102 S.Ct. 71 L.Ed.2d 816 16, Young, 9. 470 U.S. at 105 S.Ct. 1038. Benitez, Dominguez U.S. 3. United States v. Gonzalez-Huerta, 74, 9, 2333, 10. United States v. 403 F.3d 83 n. 124 S.Ct. 159 L.Ed.2d 157 727, (10th Cir.2005) (en banc). (2004). States, 129, 135, 4. Puckett v. United 556 U.S. 79, Vasquez, 11. United States v. 267 F.3d (2009). 129 S.Ct. 173 L.Ed.2d 266 Cir.2001) (citations omitted); (2d see also Frady, 456 U.S. at 102 S.Ct. 1584. Young, 5. S.Ct. 1038. U.S. Ellis, Padilla, 12. v. 378 & v. 223- United States United States (5th Cir.2009). (1st Cir.2005) (en banc). n. 44 624 record, development point of the to Hernandez’s sentence calculation full

ensures timing objections of for a multi-count strategic enhancement under prevents at the a second bite U.S.S.G. 3D1.4. His miscalculated to secure meant months, diligence range for the 97-121 it gives guideline incentives is when apple, zealousness of trial counsel and should have been 87-108 months. He re- and defendant, months, sandbagging year top minimizes the ceived 120 one above the courts, economy promotes judicial correctly range. trial of his calculated remand, reducing appeals and and by prongs plain-error The first two re- the district court’s role as safeguards easily Although view are met. there is court of first instance in our federal question some whether Hernandez’s sub- system. affected, rights stantial were our under (citations quotation and internal marks Id. precedent a range likely miscalculated omitted). Unfortunately, major- panel affected his sentence at least twelve ity complicit is this “unwarranted exten- months, with no evidence balancing,” of “the Rule’s careful sion” willing depart guide- court was from the 15, 1038, Young, 470 at U.S. 105 S.Ct. range, likely line satisfies the third “encourages litigants to which abuse prong.14 question The more difficult con- judicial process public and bestirs the prong: cerns the fourth whether the error States, ridicule it.” Johnson v. United 520 seriously affects the integrity or 470, 461, 1544, U.S. 117 S.Ct. 137 L.Ed.2d public reputation judicial proceedings. (1997) (citation omitted). majority rules that we should exercise our princi- discretion and reverse for three

II. pal reasons. Although tacitly im- acknowledging the First, majority prece- finds that our portance prong, majority of the fourth supports dent reversal because of the regrettably generous adheres to the disparity “substantial between the imposed permissive pattern of plain- reversal on applicable sentence and the Guidelines error Though review. our caselaw makes range” (quoting Mudekunye, at 646 F.3d “[tjhese the result surprising, none too 291). In Mudekunye, the court addressed holdings compel do not a similar conclusion a sentence 19 higher months than the here, however, because fourth prong of highest possible sentence in the correct plain-error applied review is meant to be here, range; the sentence months on a ease-specific and fact-intensive ba- higher top than the applicable sis.”13 John, 285, range. And F.3d

It is uncontested that the district court difference between the sentence and the clearly obviously by adding top erred one of the applicable range was 21 months. Poitra, 884, 13. United (stating States v. that “the error must have (8th Cir.2011) Puckett, (quoting 556 U.S. at appellant’s rights, affected the substantial 142, 1423) (internal quotations 129 S.Ct. and- ordinary which in the case means he must omitted); alterations see also United States v. demonstrate that affected the outcome of 281, (5th Cir.2011) Mudekunye, 646 F.3d proceedings the district court .... When the curiam) (Barksdale, J., (per dissenting); Unit- rights acquired by the defendant relate to John, ed States v. sentencing, the ‘outcome’ he must show to Cir.2010) J., (Smith, dissenting). sentence.”) (citations have been affected is his omitted); quotation marks see also Mude- States, Puckett v. See United 556 U.S. kunye, 646 289-91. 142 n. 129 S.Ct. 173 L.Ed.2d

625 course, presents prong this case a closer fourth where the calculated Of —even John, months, range range 15-21 the correct Mudekunye than and because was call months, likely Hernandez’s was 6-12 and the sentence im- the difference between 24 range posed part the correct and his was months—in because the sentence under statutory months —is substan- “sentence well the [was] actual sentence—12 within (19 months, 21 tially months and re- maximum was rendered after Davis less violating in Although 'some cases this was found terms of his spectively). numerous sentencing supervised apparently plan- found even smaller release and court has months, a ning prior such as one or three return to his criminal activi- disparities, (5th Davis, prong,15 fourth those deci- ties.” 602 F.3d at 650-52 have met the .2010). not unpublished sions are therefore Cir

precedential.16 sum, published In this court’s decisions case cited éither have not found that a only published disparity as small as a weaker case than the difference a presents nine-year side that between and a one, yet ten-year met the fourth prong, instant still sentence is so substantial as seri- Price, (5th ously 516 integrity is United States v. F.3d 285 affect fairness or Cir.2008) Indeed, judicial system. court in this reversed even the Davis we —where though the sentence was within the correct found a twelve-month disparity in guideline range because, larger proportion the court’s consisted of a of the — judgment, “clearly the error affected the sentence than in the instant case did not (internal reversal, defendant’s sentence.” Id. at 290 warrant albeit in a in case which omitted). court, quotation upwardly departed. marks This the district court had Nevertheless, however, before, question has since called into a as stated num- these reading of Price.17 bers alone not broad should determine whether discretion, we should exercise our because Weighing against majority’s position, inquiry is fact-intensive and case-sensi-' Gaither, v. Fed.Appx. United States 434 tive, so “we are not tethered to what other Cir.2011), 394 this found panels deciding of this court have done in that a difference six-month between the whether to exercise their discretion in oth- top range sentence and the of the correct cases, John, er similar or not.” did not warrant reversal under the fourth (Smith, J., at dissenting). prong, considering that the case involved violence, Second, involving majority justifies “an offense domestic reversal firearm; drugs, leadership prong and a role under the fourth because the error gang; pending particularly Though a violent within obvious. ob- charges possessing deadly weapon may weigh viousness of the error in favor prison.” similarly prong We found in of reversal on the fourth in some while cases,18 error, the error failed to meet the more Davis obvious Carrizales-Jaramillo, Davis, (advising 15. See United States v. 17. See 602 F.3d at 651 n. 12 (5th Cir.2008); Fed.Appx. Unit- temptation that "we should resist the to over- Severin, Fed.Appx. ed States v. categorically require read Price to remand (5th Cir.2006). probability a reasonable wherever lesser found”). sentence is Escalante-Reyes Though overturned a sen- guideline range, tence below the correct it is Escalante-Reyes, 18. See 440 n. 25 distinguishable, Tapia because it involved er- J., (Smith, ror, dissenting). guideline not incorrect calculation. See Escalante-Reyes, F.3d at 423-26. purchase. it is that neither the de- Guerra visited Hernandez concerning more house, bothered to take Hernandez’s where one of Hernan- fendant nor his counsel carefully an the PSR and dez’s customers showed Guerra ounce the time to review recently purchased that affects the sen- of cocaine he had from object to a mistake Hernandez. Hernandez then asked a six- tence. year-old girl to retrieve another ounce of majority justifies reversal Finally, the Guerra, from a back room to cocaine show because, though the record of Her- “even informing him that he could sell Guerra aggrava- offense contains some nandez’s buy, much cocaine as he wanted to but elements, per- elements do not ting those only agreed buy kilogram. Guerra to one exercising from our suade us to refrain later, resentencing couple days again for un- A of discretion to remand Guerra Rosales, of “But to who particular spoke der the facts this case.” asked whether he majority’s approach buy only turns the fourth sure he wanted to one kilo. was prong Escalante-Reyes, responded on its head.” 689 Guerra that if the first kilo was (Smith, J., dissenting). It good, buying F.3d at 438 he would consider five or the norm that repeated makes remediation must be six—a statement he to Hernan- precluded by showing ag- dez’s brother. met a otherwise Guerra second time Hernandez, than gravating upholding elements rather who showed him an addi- cocaine, pack sentence unless the defendant “can tional one-ounce a .45 particularly sympathetic show a case in Ruger handgun, semi-automatic and two rifles, justice seriously which the demands of so AK-47 explaining assault that he integrity system undermine the of our also could sell Guerra similar assault rifles willing PSR, depart handguns. According we are to from our well- to the procedure adopted established to correct it.” Id. which in full majority court, repeats thus the common “Hernandez claimed to have a con- “presuming] mistake of plain guns directly error unless tact that could steal from a otherwise,” Amarillo, prevailing party prove can manufacturer Texas. Hernan- id., held, Supreme just when the Court has dez further recently stated he had contrary, that proving thirty AR-15-style the burden of sent stolen rifles to Juarez, prong party seeking Mexico, the fourth is on the Ciudad to friends that reversal, Vonn, responsible United States v. causing U.S. were ‘all the mess’ 55, 63, 122 S.Ct. 152 L.Ed.2d 90 in Ciudad Juarez.” (2002). Further, below, as demonstrated week, The next Guerra met with Her- majority factually incorrect: The brother, Daniel, nandez’s to complete the aggravating aspects of Hernandez’s of- kilogram transaction: one of cocaine for fense reveal his sentence does not $17,000. Guerra handed over the When justice.” offend “core notions of Gonza- FBI, money, provided by which was lez-Huerta, 403 waiting Daniel entered a car and abscond-

In inquiry, handing this fact-intensive we need to ed without La- over cocaine. ter, review the salient facts with care: Lorenzo spoke neighbor Guerra to a connected Guerra, a drug-smuggling community, confidential informant to the to the who FBI, from learned Juan Rosales that Her- formed him that Hernandez owed Mexi- $150,000 selling large drug stealing nandez was amounts of co- can cartel and “was caine. Rosales aunt money they pay stated could from whomever could to debt,” agent smuggle doing “anything bribe Border Patrol their mon- to steal any amount drugs ey, including Guerra wanted to murder.” Before he was ar- rested, of criminal pattern Hernandez had numerous conver- conduct—the mistaken over, things level, to smooth with Guerra addition of one to the offense sations which that Daniel should not have stolen claiming by just increased the advised sentence arrest, however, money. After Her- 10%, years from nine to ten —does not architect of being admitted to nandez seriously affect the integrity, or the larcenous scheme. public reputation judicial proceedings. Judge Briones was not so incompetent or Hernandez’s first run-in with

This is not capricious as a to have committed derelic- In he was convicted of the law. of imposing tion his duties this sen- a and in 2004 of steal- burglarizing vehicle tence, nor was of dollars worth of merchan- ing thousands organized crime. He engaging dise and unpreserved, this par- forfeited error so charges other has also had numerous filed ticularly egregious, grievous, and seri- him, including possession of co- against ous, and case so exception- this rare and marihuana, unlawfully carrying a caine and al, that willing abrogate [I am] our harassment, theft, disorderly weapon, most basic and longstanding rules of result, Hernandez had a conduct. As procedure to gener- correct because it II, which, history category criminal of ally undermines the fundamental fair- 29, yield- combined with an offense level of ness of the courts and offends core no- guideline range of 97-121 months. ed justice. tions of The sentence was 120 months. Because (cita- Escalante-Reyes, 689 F.3d at 439-40 one-point multi-count enhancement quotation tions and internal marks omit- erroneously applied, the offense level was ted) (Smith, J., dissenting). 28, resulting range in a should have been statutory maxi- of 87-108 months. The The majority should not have exercised mum for the cocaine offense of which Her- its discretion to reverse on the fourth years. nandez convicted is 40 affirmed, prong. The sentence should be 841(b)(1)(B). § U.S.C. respectfully Iso dissent. (1) Considering these Hernan- facts — dez’s desire to Guerra as much cocaine sell (2) wanted,19 a conspiracy may

as he (3) bribing agent,

have involved federal six-year girl

Hernandez’s use of a old (4) offense,

committing possession his (5) rifles, attempted sale of assault his

admitted connection the horrific vio- (6) Juarez,

lence in a sentence Ciudad well maximum,20 statutory

below the Had, example, imposition Hernandez continued in court’s of a sentence of 24 months conspiracy and tried to sell Guerra five or imprisonment years supervised of and two cocaine, kilograms six his base offense level particularly statutory where a maxi- release— points higher. would have been six U.S.S.G. imprisonment mum of 36 months of and two Indeed, (c)(4). § 2D1.1 if Hernandez had at- years supervised release was an available cocaine, tempted to sell that much his statuto- punishment seriously affects — ry minimum sentence would have been ten or, tegrity public reputation judicial pro- 841(b)(1)(A). years. 21 U.S.C. See (citation, ceedings.”) quotation internal marks, omitted). Davis, and alterations ("On 20. See 602 F.3d at 651 this rec- ord, we conclude decline to district

Case Details

Case Name: United States v. Aaron Hernandez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 8, 2012

Citation: 690 F.3d 613

Docket Number: 10-51136

Court Abbreviation: 5th Cir.