U.S. v. Hernandez, 97-2026

• Decision Date: 23 January 1998
• Docket Number: No. 97-2026,97-2026
• Citation: 134 F.3d 1435
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steve D. HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1435

134 F.3d 1435

UNITED STATES of America, Plaintiff-Appellee, v. Steve D. HERNANDEZ, Defendant-Appellant.

No. 97-2026.

United States Court of Appeals, Tenth Circuit.

Jan. 23, 1998.

Jeffrey J. Buckels Albuquerque, NM, appearing for appellant.

Norman C. Bay, Assistant United States Attorney (John J. Kelly, United States Attorney, Albuquerque, NM, with him on the brief), appearing for appellee.

Before SEYMOUR, Chief Judge, MURPHY, Circuit Judge and McWILLIAMS, Senior Circuit Judge.

McWILLIAMS, Senior Circuit Judge.

Pursuant to a plea agreement with the United States, Steve D. Hernandez pleaded guilty to a one-count criminal information charging him with taking by force, violence and intimidation money belonging to the Bank of America in Albuquerque, New Mexico, the deposits of which were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 2113(a). At sentencing, the district court raised Hernandez' base offense level two levels, i.e., from 19 to 21, because it found that Hernandez made "an express threat of death" during the robbery, which enhancement was mandated by U.S.S.G. § 2B3.1(b)(2)(F). With an offense level of 21, and a criminal history category of I, the guideline sentencing range was 37-46 months. Hernandez was then sentenced to imprisonment for 37 months, to be followed by three years of supervised release.

The present appeal relates solely to the district court's determination that U.S.S.G. § 2B3.1(b)(2)(F) warranted a two level enhancement of Hernandez' base offense level from 19 to 21. Without such enhancement, Hernandez' guideline sentencing range would have been 30-37 months. Brief reference to the facts and circumstances surrounding the bank robbery will put the matter in focus.

On August 1, 1996, Hernandez entered a branch office of the Bank of America in Albuquerque, New Mexico. He handed the teller a note which read, "Give me all your hundreds, I have a gun!" The teller recalled that the robber held his right hand behind his back, as if he had a gun. The teller also stated that when, after reading the note, she "hesitated," the robber added, "I'm not kidding." The teller put currency in a bag provided by the robber, who then fled the scene. The robber, who was Hernandez, was apprehended shortly thereafter and he confessed to the robbery, explaining that he was experiencing acute financial problems and owed the Internal Revenue Service some $80,000.00.

The presentence report recommended that Hernandez' base offense level be increased by two levels because, as provided for by U.S.S.G. § 2B3.1(b)(2)(F), Hernandez made an "express threat of death" during the course of the robbery. Counsel filed objections to that recommendation, arguing that there simply was no "express threat of death" made by Hernandez during the course of the robbery. The district court overruled defense counsel's objection to the two level enhancement of Hernandez' criminal offense level, stating it was "not going to split a split hair," and increased Hernandez' base offense level from 19 to 21.

As indicated, on appeal, counsel only challenges the two level enhancement of Hernandez' base offense level, arguing that although there was, perhaps, an "implied threat of death," Hernandez did not make an "express threat of death" during the robbery, as required by U.S.S.G. § 2B3.1(b)(2)(F).

In response, the government first argues that, under the plea agreement, Hernandez waived his right to appeal the two level enhancement of his base offense level. In this regard, the plea agreement provides, in part, as follows:

WAIVER OF APPEAL RIGHTS

10. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging that, the defendant knowingly waives the right to appeal any sentence within the guideline range applicable to the statute of conviction as determined by the court after resolution of any objections by either party to the presentence report to be prepared in this case, and the defendant specifically agrees not to appeal the determination of the court in resolving any contested sentencing factor. In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, that the court may depart upwards from the applicable sentencing guideline range as determined by the court.

The record on appeal does not contain a transcript of the hearing wherein the parties tendered their plea agreement and the district court accepted it. However, as indicated, the plea agreement, itself, is a part of the record on appeal. The agreement merits close scrutiny.

The plea agreement tendered the district court, and accepted by it, states that Hernandez "understands" and "waives" enumerated constitutional rights and "agrees" to plead guilty to Count 1 of a one-count criminal information to be filed charging him with bank robbery in violation of 18 U.S.C. § 2113(a), which, incidentally, had a maximum penalty of imprisonment for not more than 20 years. (Bank robbery with a firearm had a maximum sentence of 25 years imprisonment.) The United States and Hernandez ...