Lead Opinion
Defendanh-Appellant Aaron Hernandez appeals his convictions and sentence for (1) conspiracy to possess with intent to distribute cocaine and (2) aiding and abetting the theft of government money. "We affirm the convictions, but we vacate his sentence and remand for further proceedings.
I
A Federal Bureau of Investigation (“FBI”) agent received information from a confidential source, Lorenzo Guerra, that Hernandez was “selling kilogram quantities of cocaine.” Guerra arranged a meeting with Hernandez at the latter’s residence to discuss the purchase of cocaine. At the meeting, Hernandez showed Guerra a small amount of cocaine and indicated that he could sell him one kilogram. Hernandez told Guerra that his brother, Daniel Hernandez (“Daniel”), had the kilogram of cocaine and that he should return to talk to Daniel. Two days later, Guerra returned to Hernandez’s residence and tentatively agreed to purchase one kilogram of cocaine from Hernandez for $17,000. At this meeting, Hernandez again showed Guerra a small amount of cocaine; he also showed Guerra a .45 caliber handgun that he had tucked in his waistband. Guerra finalized the $17,000 purchase price in a subsequent telephone conversation with Daniel.
A few days later, Guerra met Daniel in a parking lot of an apartment complex with $17,000 in FBI funds to complete the purchase. Daniel got in Guerra’s truck and the two of them drove to another apartment complex. After they stopped, Daniel told Guerra to give him the money and he would bring the cocaine back. When Guerra balked, Daniel explained that the person holding the cocaine did not want to meet Guerra. Guerra eventually gave Daniel the money, but Daniel took the money and fled in a waiting car.
A grand jury returned a two-count indictment against Hernandez, his wife Erica Carrillo, Daniel, and another person.
The indictment was unsealed on February 19, 2010 upon the arrest of Hernandez, Daniel, and Carrillo. Shortly thereafter, Attorney Sergio Gonzalez entered an appearance for Hernandez and his wife Carrillo. At a detention hearing for the Hernandez brothers that same day, Attorney Gonzalez revealed that he had represented Daniel in a felony case in state court that had been dismissed a week earlier.
The district court eventually set a hearing to review the conflict of interest stemming from Attorney Gonzalez’s representation of both Hernandez and his wife. The court found that a conflict of interest existed and ordered Gonzalez to withdraw from representation of Carrillo.
Five days before trial, the Government moved to disqualify Attorney Gonzalez as counsel for Hernandez based on his representation of Daniel in the state felony matter that Gonzalez had mentioned in the detention hearing. The Government’s mo
On the morning of the first day of trial, the district court held a hearing prior to jury selection on the Government’s motion to disqualify-Attorney Gonzalez. At the hearing the Government acknowledged that Daniel’s prior state case, which involved charges of felony marijuana possession, was not related to this case. 'However, the Government expressed concern that it planned to call Daniel as a witness in the instant case and that Attorney Gonzalez might not be able to effectively cross-examine him without a conflict of interest arising. Attorney Gonzalez responded that he had “never even spoke with ... Daniel” regarding the prior case; he said that he had simply “showed up at the first hearing,” “looked at the file,” and “talked to the [prosecutor],” before the prosecutor said, “You’re right[;] It’s a bad case[ ]” and dismissed the case. Attorney Gonzalez further stated that he and Daniel “never' even had an attorney/client communica- - tion” and that “there’s nothing that I could use adverse that I learned from him because we had never had a communication.” Attorney Gonzalez also advised the district court that Daniel was aware that Gonzalez was going to represent Hernandez in this case and had not voiced an objection. The district court denied the Government’s motion to disqualify Gonzalez.
That afternoon, the Government renewed the motion with support from Daniel’s attorney in this case. Daniel’s counsel argued that his client risked being prejudiced by his former attorney’s, cross-examination if he was called to testify at trial. The district court replied that Attorney Gonzalez had explained that “he didn’t even talk to [Daniel]” during the prior representation. Further, the district court stated that any cross-examination of Daniel by Attorney Gonzalez would be limited. The court then orally denied the Government’s motion to disqualify Gonzalez a second time. The next day, the district court issued a written order denying the Government’s motion. The district court concluded that Attorney Gonzalez’s prior representation of Daniel did not present a conflict of interest because (1) Daniel’s prior case was unrelated to the current case, (2) Gonzalez’s representation of Daniel in the prior case had unambiguously ended before his representation of Hernandez began, (3) Gonzalez’s prior representation of Daniel was “extremely limited,” and (4) Gonzalez had attested that he did not learn anything in his prior representation of Daniel that he could use to harm either Hernandez or Daniel.
Daniel did not testify at the ensuing trial, and the jury found Hernandez guilty on both counts.
The district court adopted the PSR and, finding no reason to depart from the Guidelines range, sentenced him to concurrent 120-month terms of imprisonment. The district court (1) assessed a fine in the amount of $2,500 and a $200 special assessment and (2) rendered a money judgment of forfeiture in the amount of $17,000. This appeal followed.
II
A
First, Hernandez claims that the district court erred when it determined that Attorney Gonzalez’s prior representation of Daniel would not present an actual conflict of interest at trial. He contends that because Attorney Gonzales had recently represented Daniel and had discussed the present case with Daniel’s wife, the district court should have held a Garcia hearing to determine whether Attorney Gonzalez had a conflict of interest and whether that conflict would prejudice Hernandez. Hernandez further asserts that Attorney Gonzalez’s failure to call Daniel as a witness provides evidence of a conflict of interest; he maintains that because Daniel was the only witness who could corroborate Hernandez’s defense, the only explanations for Gonzalez’s decision not to call Daniel were (1) the existence of a conflict of interest and (2) the district court’s warning to Gonzalez not to take advantage of his prior representation of Daniel. Accordingly, Hernandez asks us to remand proceedings to the district court so that it can conduct a Garcia hearing to determine whether the conflict adversely affected Attorney Gonzalez’s performance at trial.
“The Sixth Amendment right to counsel includes the ‘right to representation that is free from any conflict of interest.’ ” United States v. Garcia-Jasso,
To determine whether Attorney Gonzalez had an actual conflict of interest, “we must ask whether Attorney [Gonzalez] labored under a conflict of interest, which was not merely hypothetical, and whether that conflict adversely affected the representation (i.e., whether it was an actual conflict).” Id. at 392 (citations omitted). Because Hernandez concedes that there is insufficient evidence in the record to determine whether the alleged conflict adversely affected Attorney Gonzalez’s representation, we need only decide whether the alleged conflict was not merely hypothetical. Id.
“Joint representation does not necessarily create a conflict of interest.” United States v. Rico,
We hold that the conflict here remained purely hypothetical. Burns,
Hernandez contends that Attorney Gonzalez’s decision not to call Daniel as a witness supports his assertion that Gonzalez’s prior representation of Daniel created a conflict of interest. At the hearing on the Government’s motion to disqualify, the Government argued that Hernandez might want to call Daniel to testify regarding a statement he made to an investigator before he eventually pleaded guilty. In the earlier statement, Daniel said that the brothers had always planned simply to steal the money from the confidential
Accordingly, because Hernandez did not establish that Attorney Gonzales labored under a non-hypothetical conflict of interest, “we conclude that the district court did not err in failing to conduct a Garcia hearing.” Garcia-Jasso,
B
Second, Hernandez claims that the district court committed plain error when it calculated his total adjusted offense level under the Sentencing Guidelines. He asserts that the district court erroneously increased his offense level by employing a one-level multi-count adjustment pursuant to U.S.S.G. § 3D1.4. He contends that the district court’s error increased his offense level from 28 to 29, which, when combined with his criminal history category, increased his advisory Guidelines range of imprisonment from 87-108 months to 97-121 months. The district court adopted the PSR, found no reason to depart from the Guidelines range, and sentenced Hernandez to concurrent 120-month terms of imprisonment.
Because Hernandez did not object to the district court’s multi-count adjustment in the district court, we review his claim for plain error. To show reversible plain error, Hernandez must show a clear or obvious error that affects his substantial rights. Puckett v. United States,
Hernandez claims that the district court committed clear error that affected his substantial rights by sentencing him to a term of imprisonment 12 months above the top-end of the proper Guidelines range. Further, he claims that the district court’s error seriously affected the fairness, integrity, or public reputation of the judicial proceedings because the court intended to give him a sentence within the Guidelines range, but due to the court’s error, gave him a sentence one year above the top-end of the correct Guidelines range.
As the Government concedes, the district court committed clear error by employing a one-level multi-count adjustment to Hernandez’s total offense level pursuant to U.S.S.G. § 3D1.4. Hernandez was clearly not eligible for a multi-count adjustment under § 3D1.4 because his theft of government money offense was “9 or more levels less serious” than his cocaine conspiracy offense. See U.S.S.G. § 3D1.4(c) (providing that courts should “disregard [offenses that are] 9 or more levels less serious than the Group with the highest offense levels” for the purposes of employing a multi-count adjustment); see also United States v. Villegas,
In Mudekunye, we held that in cases where the correct and incorrect Guidelines ranges overlap, but the court imposes a sentence significantly above the top-end of the correct Guidelines range, the imposed sentence affects the defendant’s substantial rights “where it is not apparent from the record that [the defendant] would have received an above-Guidelines sentence.”
Here, similarly to Mudekunye, the correct and incorrect Guidelines ranges overlapped by 11 months, and the district court imposed a sentence 12 months higher than the top-end of the correct Guidelines range. Id. (holding that the district court’s misapplication of the Guidelines affected the defendant’s substantial rights where the “correct and incorrect sentencing ranges overlapped] by one month, [and the defendant] was sentenced well outside the one month overlap, 19 months above the correct range”); see United States v. Carrizales-Jaramillo,
Further, as in Mudekunye, there is no evidence in the record that suggests the district court would have imposed an above-Guidelines sentence of 120 months if the district court had considered the accu-. rate Guidelines range — 87-108 months. Mudekunye,
Although the correct and erroneous Guidelines ranges overlapped more significantly here than they did in Mudekunye, we find its reasoning persuasive. In short, given (1) the substantial, 12-month disparity between the top-end of the correct Guidelines range and the sentence imposed and (2) the lack of any indication in the record that the district court would have imposed an above-Guidelines sentence if it had considered the correct range, we conclude that Hernandez has shown a reasonable probability “that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” Villegas,
Because we have determined that Hernandez has satisfied the first three elements of plain error, wé must decide whether to exercise our discretion to remand for resentencing. We may only exercise our discretion to correct the district court’s plain error if it “seriously affectfs] the fairness, integrity or public reputation of judicial proceedings.” Puckett,
Although we have been “generous with remand” when employing the fourth prong of the plain error test in the sentencing context, “we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem.” United States v. Ellis,
Nonetheless, as in Mudekunye, we conclude that under the particular facts of this case, “[t]he substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error.”
Ill
We AFFIRM Hernandez’s convictions. For the reasons stated above, we VACATE Hernandez’s sentence and REMAND for further proceedings.
Notes
. The grand jury later returned a superseding indictment that did not contain any substantive changes.
. "As noted recently, our court has not fully resolved whether a different substantial-rights standard also remains in effect, i.e., 'if the case were remanded, the trial judge could reinstate the same sentence.' " United States v. Gaither,
. We take no position regarding the point at which a sentence becomes materially or substantially above the proper Guidelines range. See John,
Dissenting Opinion
dissenting:
I respectfully dissent, although the majority correctly decides Hernandez’s conflict-of-interest claim and properly holds that the district court committed an obvious error that likely affected Hernandez’s substantial rights when it added one point to the guideline calculation for a multicount indictment under U.S.S.G. § 3D1.4. At the fourth prong of plain-error analysis, this court should not exercise its discretion to reverse, because in no way does the error “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano,
I.
Reversal on plain error is “exceptional,”
This court has nonetheless adopted an approach that is “generous” and “permissive,”
*624 ensures full development of the record, prevents strategic timing of objections meant to secure a second bite at the apple, gives incentives for the diligence and zealousness of trial counsel and the defendant, minimizes the sandbagging of trial courts, promotes judicial economy by reducing appeals and remand, and safeguards the district court’s role as the court of first instance in our federal system.
Id. (citations and internal quotation marks omitted). Unfortunately, the panel majority is complicit in this “unwarranted extension” of “the Rule’s careful balancing,” Young,
II.
Although tacitly acknowledging the importance of the fourth prong, the majority regrettably adheres to the generous and permissive pattern of reversal on plain-error review. Though our caselaw makes the result none too surprising, “[tjhese holdings do not compel a similar conclusion here, however, because the fourth prong of plain-error review is meant to be applied on a ease-specific and fact-intensive basis.”
It is uncontested that the district court clearly and obviously erred by adding one point to Hernandez’s sentence calculation for a multi-count enhancement under U.S.S.G. § 3D1.4. His miscalculated guideline range is 97-121 months, when it should have been 87-108 months. He received 120 months, one year above the top of his correctly calculated range.
The first two prongs of plain-error review are easily met. Although there is some question whether Hernandez’s substantial rights were affected, under our precedent a miscalculated range that likely affected his sentence by at least twelve months, with no evidence that the district court was willing to depart from the guideline range, likely satisfies the third prong.
First, the majority finds that our precedent supports reversal because of the “substantial disparity between the imposed sentence and the applicable Guidelines range” (quoting Mudekunye,
The only published case cited by éither side that presents a weaker case than the instant one, yet still met the fourth prong, is United States v. Price,
Weighing against the majority’s position, in United States v. Gaither,
In sum, this court’s published decisions have not found that a disparity as small as the difference between a nine-year and a ten-year sentence is so substantial as seriously to affect the fairness or integrity of the judicial system. Indeed, in Davis we found that a twelve-month disparity that consisted of a larger proportion of the sentence than in the instant case did not warrant reversal, albeit in a case in which the district court had upwardly departed. Nevertheless, as stated before, these numbers alone should not determine whether we should exercise our discretion, because the inquiry is fact-intensive and case-sensi-' tive, so “we are not tethered to what other panels of this court have done in deciding whether to exercise their discretion in other cases, similar or not.” John,
Second, the majority justifies reversal under the fourth prong because the error was particularly obvious. Though the obviousness of the error may weigh in favor of reversal on the fourth prong in some cases,
Finally, the majority justifies reversal because, “even though the record of Hernandez’s offense contains some aggravating elements, those elements do not persuade us to refrain from exercising our discretion to remand for resentencing under the particular facts of this case.” “But the majority’s approach turns the fourth prong on its head.” Escalante-Reyes,
In this fact-intensive inquiry, we need to review the salient facts with care: Lorenzo Guerra, a confidential informant to the FBI, learned from Juan Rosales that Hernandez was selling large amounts of cocaine. Rosales stated that his aunt could bribe a Border Patrol agent to smuggle any amount of drugs Guerra wanted to purchase. Guerra visited Hernandez at Hernandez’s house, where one of Hernandez’s customers showed Guerra an ounce of cocaine he had recently purchased from Hernandez. Hernandez then asked a six-year-old girl to retrieve another ounce of cocaine from a back room to show Guerra, informing him that he could sell Guerra as much cocaine as he wanted to buy, but Guerra only agreed to buy one kilogram.
A couple of days later, Guerra again spoke to Rosales, who asked whether he was sure he wanted to buy only one kilo. Guerra responded that if the first kilo was good, he would consider buying five or six — a statement he repeated to Hernandez’s brother. Guerra met a second time with Hernandez, who showed him an additional one-ounce pack of cocaine, a .45 Ruger semi-automatic handgun, and two AK-47 assault rifles, explaining that he also could sell Guerra similar assault rifles and handguns. According to the PSR, which was adopted in full by the district court, “Hernandez claimed to have a contact that could steal guns directly from a manufacturer in Amarillo, Texas. Hernandez further stated he had just recently sent thirty stolen AR-15-style rifles to Ciudad Juarez, Mexico, to friends that were responsible for causing ‘all the mess’ in Ciudad Juarez.”
The next week, Guerra met with Hernandez’s brother, Daniel, to complete the transaction: one kilogram of cocaine for $17,000. When Guerra handed over the money, which was provided by the FBI, Daniel entered a waiting car and absconded without handing over the cocaine. Later, Guerra spoke to a neighbor connected to the drug-smuggling community, who informed him that Hernandez owed a Mexican drug cartel $150,000 and “was stealing money from whomever they could to pay their debt,” doing “anything to steal money, including murder.” Before he was ar
This is not Hernandez’s first run-in with the law. In 1994, he was convicted of burglarizing a vehicle and in 2004 of stealing thousands of dollars worth of merchandise and engaging in organized crime. He has also had numerous other charges filed against him, including possession of cocaine and marihuana, unlawfully carrying a weapon, harassment, theft, and disorderly conduct. As a result, Hernandez had a criminal history category of II, which, combined with an offense level of 29, yielded a guideline range of 97-121 months. The sentence was 120 months. Because the one-point multi-count enhancement was erroneously applied, the offense level should have been 28, resulting in a range of 87-108 months. The statutory maximum for the cocaine offense of which Hernandez was convicted is 40 years. 21 U.S.C. § 841(b)(1)(B).
Considering these facts — (1) Hernandez’s desire to sell Guerra as much cocaine as he wanted,
this unpreserved, forfeited error so particularly egregious, grievous, and serious, and this case so rare and exceptional, that [I am] willing to abrogate our most basic and longstanding rules of procedure to correct it because it generally undermines the fundamental fairness of the courts and offends core notions of justice.
Escalante-Reyes,
The majority should not have exercised its discretion to reverse on the fourth prong. The sentence should be affirmed, so I respectfully dissent.
. United States v. Atkinson,
. United States v. Young,
. United States v. Dominguez Benitez,
. Puckett v. United States,
. Young,
. United States v. Padilla,
. United States v. Robinson,
. United States v. Taylor,
. Young,
. United States v. Gonzalez-Huerta,
. United States v. Vasquez,
. United States v. Ellis,
. United States v. Poitra,
. See Puckett v. United States,
. See United States v. Carrizales-Jaramillo,
. Though Escalante-Reyes overturned a sentence below the correct guideline range, it is distinguishable, because it involved Tapia error, not incorrect guideline calculation. See Escalante-Reyes,
. See Davis,
. See Escalante-Reyes,
. Had, for example, Hernandez continued in the conspiracy and tried to sell Guerra five or six kilograms of cocaine, his base offense level would have been six points higher. U.S.S.G. § 2D 1.1 (c)(4). Indeed, if Hernandez had attempted to sell that much cocaine, his statutory minimum sentence would have been ten years. See 21 U.S.C. § 841(b)(1)(A).
. See Davis,