United States v. Hernandez-Barajas
| Docket Number | 21-3763 |
| Decision Date | 28 June 2023 |
| Citation | 71 F.4th 1104 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Luis Alberto HERNANDEZ-BARAJAS, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from United States District Court for the Southern District of Iowa - Eastern
Counsel who represented the appellant was Nova D. Janssen, AFPD, of Des Moines, IA.
Counsel who represented the appellee was Torrie J. Schneider, AUSA, of Saint Louis, MO.
Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
Luis Hernandez-Barajas received an enhancement for "direct[ing] the use of violence." U.S.S.G. § 2D1.1(b)(2). The facts support the enhancement, so we affirm.
While in prison for dealing drugs, Hernandez-Barajas continued to run his operation from behind bars. At one point, he arranged for a shipment of marijuana to a relative. But when black-tar heroin arrived instead, Christopher Hicks sold it on his behalf.
The arrangement went so smoothly that they teamed up again to sell methamphetamine. The process was the same each time. Hernandez-Barajas would arrange deliveries to Hicks, who would then sell the drugs. Hicks paid for the drugs in one of three ways: a personal delivery of cash to someone in Hernandez-Barajas's family, a deposit in another inmate's prison account, or a wire transfer to a third party.
Once Hicks quit paying, however, the relationship fell apart. Nonpayment turned into non-responsiveness: Hicks ignored texts and other communications. And Hernandez-Barajas's family got caught "in the middle" of a "danger[ous]" drug dispute.
To protect his family, Hernandez-Barajas pointed the finger at Hicks and passed along his address to their suppliers. He then told Hicks via text that "[t]omorrow at noon a guy is gonna be at [your] house[,] talk to him." When there was no response, he finally said, "[l]isten this is the last tex[t] I will send [you], I can't hold th[ese] people back anymore, and since [you] don't answer my calls [I] am about to [tell] them that [you] don't want to pay and . . . whatever they do after that is on you."
Meanwhile, Hicks continued to sell drugs, including what he received through Hernandez-Barajas. He eventually sold those drugs in controlled buys, which led to federal drug charges. Hernandez-Barajas, for his part, pleaded guilty to a single count of conspiracy to distribute 50 grams or more of methamphetamine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.
At sentencing, the district court1 gave him a two-level enhancement for "ma[king] a credible threat to use violence[ ] or direct[ing] the use of violence." U.S.S.G. § 2D1.1(b)(2). Hernandez-Barajas challenges the enhancement on appeal.
The question is whether providing a co-conspirator's address to dangerous people "direct[s] the use of violence" or itself conveys "a credible threat to use violence." U.S.S.G. § 2D1.1(b)(2). In addressing this question, we review "the district court's interpretation of the [S]entencing [G]uidelines de novo." United States v. Wattree, 431 F.3d 618, 621 (8th Cir. 2005).
At the heart of this case is what U.S.S.G. § 2D1.1(b)(2) says. See United States v. Clayborn, 951 F.3d 937, 939 (8th Cir. 2020) (). It allows a district court to impose a two-level enhancement when one of three situations arises: "the defendant used violence, made a credible threat to use violence, or directed the use of violence." U.S.S.G. § 2D1.1(b)(2).
Basic grammar tells us what the sentence means. See Nielsen v. Preap, — U.S. —, 139 S. Ct. 954, 965, 203 L.Ed.2d 333 (2019) ("Words are to be given the meaning that proper grammar and usage would assign them." (brackets omitted) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012)). The sentence's subject, the doer of the action, is the defendant. See Bryan A. Garner, Garner's Modern American Usage 918 (3d ed. 2009); see also Rodney Huddleston & Geoffrey K. Pullum, The Cambridge Grammar of the English Language 230, 235 (2002) ( that, in this kind of sentence, the subject causes "an action or event"). There are also three verbs that cover what the defendant must do: use, make, or direct. See TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 102 (D.D.C. 2020) ("[V]erbs describe the 'action the subject exerts . . . .' " (quoting The Chicago Manual of Style ¶ 5.98 (17th ed. 2017)). And the direct object of each verb involves violence: using it, making a credible threat of it, or directing it. See Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer 166 (3d ed. 2009) ( that a direct object "receive[s] the action of the verb"); see also United States v. Sanders, 966 F.3d 397, 406 (5th Cir. 2020) (). According to this basic subject-verb-object sentence, it is the defendant who must do one of those three acts,2 each of which must connect to violence in a specified way. See The Cambridge Grammar, supra, at 238, 1349.
With those basic grammatical principles in mind, our task is to figure out whether Hernandez-Barajas committed any of the listed acts. The parties agree on one thing: having been in prison at the time, he never "used violence" against Hicks. U.S.S.G. § 2D1.1(b)(2); see The American Heritage Dictionary of the English Language 1907 (5th ed. 2016) (defining "use" as "[t]o avail oneself of" or "[t]o put into service or employ for a purpose" (emphasis added)).
Whether Hernandez-Barajas "made a credible threat to use violence" is a closer call. U.S.S.G. § 2D1.1(b)(2). Recall that, grammatically speaking, the defendant is the one who must make the credible threat, even if it involves the potential use of violence by someone else. Our cases reflect this interpretation. Consider United States v. Lewis-Zubkin, 907 F.3d 1103 (8th Cir. 2018) (per curiam). There, the defendant threatened to assault two co-conspirators and then paid a third party to do it. Id. at 1104. Although the opinion never directly states which of the three listed acts the defendant committed, the reasoning suggests that we treated it as a credible threat. See id. ().
Here, by contrast, Hernandez-Barajas never actually threatened Hicks. He demanded "money" and "answer[s]" and told Hicks that "whatever they do after that is on you." But even that final warning does not "express[ ] . . . an intention to inflict pain, harm, or punishment" through the acts of others. American Heritage Dictionary, supra, at 1813 (emphasis added) (defining "threat").
The government has one last chance to make the enhancement work: showing that Hernandez-Barajas "directed the use of violence" against Hicks. U.S.S.G. § 2D1.1(b)(2). To "direct" means "to dispatch, aim, or guide," so it necessarily contemplates "assist[ing]" or "guid[ing]" someone else. Webster's Third New International Dictionary 640 (2002).
The object, at least in the grammatical sense, is "the use of violence." See Sanders, 966 F.3d at 406. This noun phrase requires an "application or employment of" violence, no matter who does it. American Heritage Dictionary, supra, at 1907 (); cf. Barbato v. Greystone All., LLC, 916 F.3d 260, 267 (3d Cir. 2019) (). Putting those pieces together yields a clear meaning: the defendant must "assist" or "guide" someone else in the use of violence. See Sanders, 966 F.3d at 406; see also Enquist & Oates, supra, at 166.
It is possible, as the dissent argues, to "guide" someone else in the use of violence through the exercise of authority. But another way to do it, like Hernandez-Barajas did here, is through persuasion or suggestion. As even the dissent's definition recognizes, direction does not always require authority. See Webster's Third, supra, at 640 ().
An everyday example proves the point. Imagine that a city snowplow piles snow in front of a driveway. The homeowner comes out and tells the driver to push it somewhere else. The homeowner has no authority over the snowplow or the driver. Yet most people would still conclude that the homeowner "directed" the driver to do something else with it.
The same sort of direction happened here. Once danger came knocking on his family's door, Hernandez-Barajas redirected the suppliers' anger toward the person who refused to pay. It was "reasonably foreseeable" that this simple act, given how dangerous they were, could have led to the use of violence against Hicks. United States v. McDonald, 43 F.4th 1090, 1098 (10th Cir. 2022) .
Hernandez-Barajas has a different view. He argues that, at most, he alerted Hicks of potential danger. But what he told Hicks is not what matters. Rather, the focus is on what he told his suppliers, who were trying to get their money. And here, he "directed" them to go after Hicks instead of his own family, fully aware of their intent and ability to do harm. U.S.S.G. § 2D1.1(b)(2); see McDonald, 43 F.4th at 1098-99 (); United States v. Perez, 962 F.3d 420, 451 (9th Cir. 2020) (...
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