U.S. v. Hernandez

• Decision Date: 09 February 2011
• Docket Number: No. 09–20267.,09–20267.
• Citation: 633 F.3d 370
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.John Phillip HERNANDEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

633 F.3d 370

UNITED STATES of America, Plaintiff–Appellee,

v.John Phillip HERNANDEZ, Defendant–Appellant.

No. 09–20267.

United States Court of Appeals, Fifth Circuit.

Feb. 9, 2011.As Revised March 23,2011.

Julia Bowen Stern, John Richard Berry (argued), James Lee Turner, Asst. U.S. Attorneys, Houston, TX, for Plaintiff–Appellee.Marjorie A. Meyers, Sarah Beth Landau (argued), Fed. Pub. Defenders, Molly Estelle Odom, H. Michael Sokolow, Asst. Fed. Pub. Defenders, Houston, TX, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Texas.Before HIGGINBOTHAM, SMITH and ELROD, Circuit Judges.JERRY E. SMITH, Circuit Judge:

John Hernandez appeals his sentence, arguing that it is unreasonable and violates his Sixth Amendment right to a jury trial because it can be found reasonable only on the basis of judge-found facts. We affirm.

I.

The parties do not dispute the relevant facts. Hernandez was charged with one count of knowingly making a false material statement to a federal firearms licensee, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2) (2006). At rearraignment, the government presented its case, and Hernandez pleaded guilty based on those facts. The district court sentenced him to ninety-seven months in prison, three years of supervised release, and a $100 special assessment.

II.

The facts presented at rearraignment were that Hernandez purchased two Bushmaster Model 16M4, .223 caliber semiautomatic assault rifles (civilian versions of the U.S. military's M16 assault rifle) from a sporting goods store. He intentionally lied on an ATF form that asked whether he was buying the firearms on behalf of another person or for himself. He said he was buying them for himself, when in fact he was buying them on behalf of a person who intended to smuggle them to Mexico. The statement was material, because the store would not have made the sale had Hernandez said he was buying the firearms on behalf of another person. One of the two firearms was recovered at a crime scene in Acapulco, Mexico, about seven months later.

In addition, over the course of a year, Hernandez paid $24,800 to purchase at least twenty-three firearms that were “military in style and utility.” Fifteen of the twenty-three were “essentially” identical to the Bushmaster 16M4. Five were recovered at crime scenes in Mexico. A “cooperating source” told the ATF that Hernandez had recruited him or her to traffic firearms, and Hernandez told the source that the firearms were being sold out of state for profit. Hernandez also promised to pay the source to buy firearms in the source's name on Hernandez's behalf. After his arrest, Hernandez told the ATF that he had sold all of the firearms he bought, but he did not say to whom.

III.

The presentence report (“PSR”) set forth the following additional facts: Hernandez was one of the most prolific purchasers for an organization involved in illegal firearms trafficking that had at least 22 suspected members and purchased at least 328 firearms. Of the 23 firearms purchased by Hernandez, one was used in the kidnaping and murder of a businessman in Municipia de Xicotepec, Mexico; another when the Los Zetas drug cartel enforcers opened fire on the Mexican Army at the Botanical Garden in Miahuatlan de Porfirio, Mexico; and another was recovered in Acapulco, Mexico, after more than a dozen armed assailants attacked two offices of the state attorney general and executed four police officers and three secretaries.

The PSR also related numerous instances in which Hernandez, using various aliases, either accompanied, recruited, or tried to recruit others as straw purchasers to buy 80 firearms, in addition to the 23 that Hernandez had bought. In addition, one witness said he heard Hernandez talk about the Zetas on the phone. Ultimately, the PSR concluded that Hernandez was responsible, for guidelines purposes, for the purchase or attempted purchase of “a conservative total” of 103 firearms.

The PSR calculated an offense level of 24: (1) starting with an offense level of 12 pursuant to U.S.S.G. § 2K2.1(a)(7); (2) adding eight levels pursuant to § 2K2.1(b)(1)(D) for an offense involving between 100 and 199 firearms;¹ (3) adding four levels for firearms trafficking pursuant to § 2K2.1(b)(5); (4) adding three levels for a manager or supervisor role in the offense, based on Hernandez's recruitment of straw purchasers, pursuant to § 3B1.1(b); and (5) subtracting three levels for acceptance of responsibility, pursuant to § 3E1.1(a)-(b). Hernandez's total offense level of 24 and criminal history category of I resulted in a 51–63–month guideline sentencing range.

The PSR identified the following authorized factors warranting departure from the range: First, U.S.S.G. § 2K2.1, application note 11(B), authorizes an upward departure where the offense involves “military type assault rifles;” second, § 2K2.1, application note 13(C), authorizes an upward departure where the defendant trafficked substantially more than twenty-five firearms; and third, § 5K2.0(a)(2)(B) authorizes an upward departure in exceptional cases for circumstances not identified in the guidelines and not adequately taken into consideration by them. The main circumstances identified by the PSR that were potentially not adequately taken into consideration were (1) that the firearms were used in the commission of eight murders, (2) that the sheer number of purchases indicated Hernandez likely knew they would not serve a law-abiding purpose, and (3) that the future harm of his firearms purchases was “immeasurable.”

Hernandez did not object to the PSR. The government responded to it by requesting an above-guideline sentence of ninety-seven months based on the quantity and military style of the weapons and how they were used in Mexico. Hernandez objected to the government's request and requested a sentence within the guideline range. He noted that he already had received enhancements for the number of guns used and for trafficking. In addition, he argued there was a “significant issue” as to whether he had knowledge of how the firearms were used in Mexico. Indeed, an ATF agent testified he “had no evidence [Hernandez] knew of the activity that those firearms would eventually end up a part of in Mexico.”

The government countered that Hernandez was overheard talking about the Zetas on the telephone and that it was common knowledge they were “drug henchmen for the Gulf cartel.” It also detailed the various murders committed with the weapons Hernandez had purchased or recruited others to buy. Hernandez responded that he never admitted that he knew how the guns would be used. He also noted that a few weeks earlier, Juan Gutierrez, another firearms trafficker, was sentenced to only forty-six months for making false statements in purchasing twenty-three firearms. See United States v. Gutierrez, 359 Fed.Appx. 540, 541 (5th Cir.2010). To the extent there were differences between the two cases, Hernandez argued his sentence enhancements under the guidelines accounted for them.

The district court concluded that an upward departure in the offense level from 24 to 30 was warranted, pursuant to U.S.S.G. §§ 2K2.1 and 5K2.0. It did so because (1) military-type assault rifles were purchased, as discussed in § 2K2.1, application note 11(B); (2) substantially more than twenty-five firearms were trafficked, as discussed in § 2K2.1, application note 13(C); and (3) the court believed that the sentencing guidelines range did not adequately account for the severity of Hernandez's actions, because they led to eight murders in Mexico and “strengthened the drug cartels by arming them.” The court noted that it was “not holding the defendant directly accountable for the death of others ... [but] his part in the criminal activity is nonetheless significant in facilitating violent crime.” The court also observed that the statutory maximum sentence for Hernandez's offense was 120 months, above Hernandez's sentence. Hernandez objected to the sentence on Sixth Amendment and reasonableness grounds.

IV.

Hernandez argues that his sentence is not reasonable if based only on the facts he admitted, so it violates his Sixth Amendment right to a jury trial, because it is authorized only by judge-found facts. We review constitutional claims de novo. E.g., United States v. Romero–Cruz, 201 F.3d 374, 377 (5th Cir.2000). Hernandez relies primarily on two concurrences by Justice Scalia that state that every federal criminal sentence that is higher than what could be upheld as reasonable, based only on the facts found by the jury or admitted by the defendant, is a violation of the Sixth Amendment right to a jury.²

Irrespective of whether Supreme Court precedent has foreclosed as-applied Sixth Amendment challenges to sentences within the statutory maximum that are reasonable only if based on judge-found facts,³ such challenges are foreclosed under our precedent. We have rejected one such Sixth Amendment challenge to a within-guideline range sentence on the ground that a “sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a guidelines sentencing range.” ⁴

Setser cannot be factually distinguished from this case: Because Justice Scalia's reasoning in Rita and Gall (and hence Hernandez's reasoning here) makes no distinction between within-guidelines and above-guidelines sentences that are reasonable solely based on judge-found facts,⁵ if the former are categorically acceptable under our precedent, then the latter must be too. Indeed, to distinguish Setser on the ground that within-guidelines sentences are always constitutional but above-guidelines sentences may not be would be conclusively to presume that within-guidelines sentences are reasonable even if we ignore the judge-found facts, which would treat the guidelines as more than just purely advisory and would violate Supreme Court precedent.⁶

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