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United States v. Hernandez

November 04, 2002


Appeal from the United States District Court for the Western District of Wisconsin. No. 00-CR-113-C-01--Barbara B. Crabb, Chief Judge.

Before Cudahy, Diane P. Wood, and Evans, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge


Juan Carlos Hernandez was a methamphetamine dealer who was caught on a surveillance videotape picking up a substantial sum of money in connection with his drug trade. He pleaded guilty to Count One of a two-count indictment, in which he had been charged with conspiring to distribute in excess of 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), and distributing in excess of 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Count Two). He received a sentence of 360 months, which included a two-point Guidelines enhancement for his role as a leader, a rejected three-point downward adjustment for acceptance of responsibility, and classification as a career offender. The district court overruled Hernandez's objections to these three factors. He has renewed his challenges on appeal, but finding no error in the district court's rulings, we affirm his sentence.


The story of the drug dealings that got Hernandez in trouble begins with Raymond Orr, a resident of Superior, Wisconsin, who sold methamphetamine in that area. Initially, Orr used a man named Jerry as his supplier, but after he received "junk" from Jerry, he decided that he needed to make a change. Shortly thereafter, Orr was referred to a team of two alternate suppliers, whom he described as "Mexican looking" men. The older of the two turned out to be Hernandez; the younger was Milton Gonzales. The evidence indicated that Orr spoke no Spanish, and that Hernandez's English was limited; Gonzales served as an interpreter for the other two. Hernandez also used Gonzales as his driver, paying him $500 per trip for his services.

Orr had a revolving credit arrangement with Hernandez, whereby Hernandez and Gonzales would bring methamphetamine to Orr, and Orr would pay them the money for the prior week's delivery. Normally, Hernandez and Gonzales delivered approximately ½ pound of methamphetamine to Orr, but on one occasion they gave him 2 ½ pounds. The three had a regular meeting Sunday evenings around 8:00 p.m.

In early November 2000, Orr was caught. The police obtained and executed a search warrant for his residence, but when they showed up Orr agreed immediately to cooperate. He showed them where he had stored 0.5 grams of methamphetamine and where he had buried a large quantity of the drug that he had obtained at an earlier time from Hernandez. Orr also agreed to cooperate in the police effort to catch his suppliers. As part of that cooperation, he allowed the police to install micro-phones and cameras in his garage so that they could monitor his next meeting with Hernandez and Gonzales.

The Sunday after Orr's home was searched, Hernandez and Gonzales showed up as usual around 8:00 p.m. to pick up approximately $10,000 from Orr. Gonzales drove to Orr's home. Most of what occurred next was captured on a videotape. The three met in the garage, but Hernandez did not appear to say very much. Gonzales carried on a conversation with Orr, in keeping with his role as Hernandez's helper. After Orr delivered the money, Hernandez and Gonzales counted it and tried to leave Orr's residence. They were intercepted by the police. Although Hernandez tried to throw the money away, the police were too fast for him, and they arrested him immediately.


On March 31, 2001, Hernandez pleaded guilty to the conspiracy count. Although he made some comments that caused the district court to explore his genuine willingness to plead guilty, in the end the court found that he was indeed entering his plea knowingly and voluntarily, commenting that she was "satisfied that the government could prove the factual basis for the plea, and that you wish to enter a plea of guilty even though you have some reservations about your own guilt for the amount of methamphetamine." Before this court, Hernandez has not made any argument that he should have been permitted to withdraw the guilty plea; we therefore have no need to consider any such possibility. More importantly, his plea of guilty represents his sworn statement that he was indeed conspiring to deal in more than 500 grams of methamphetamine, and he is thus bound to that fact.

After accepting the guilty plea, the district court ordered the preparation of a Presentencing Report (PSR). Hernandez cooperated with the probation officer to a certain degree, but he also furnished a written statement of his guilt in which he claimed that he did not know what kind of illegal drug he was transporting with Gonzales, and he claimed that he was paid less than $1,000 to accompany Gonzales to Superior. Based on the statements in the letter, the probation officer recommended that Hernandez should not receive any reduction in his sentence for acceptance of responsibility under U.S.S.G. § 3E1.1. The probation officer noted that Hernandez's statements were inconsistent with those of Orr and Gonzales, and that the videotape also belied Hernandez's claims.

At the sentencing hearing, Orr and Gonzales testified that Hernandez was the one in charge of the operation. The district court considered that testimony and viewed the videotape, and concluded that "it's very clear that Mr. Hernandez was the leader of this escapade." Hernandez's denials not only helped to influence the judge not to give him the acceptance of responsibility downward adjustment; they also persuaded her that she should enhance his offense level by two under § 3B1.1(c). On the latter point, the judge observed that "Mr. Hernandez was the one who decided where they would go. He was the one that knew where the customer lived, he was the one that gave directions, he was the one that kept the bulk of the money, and he was the one that supplied the methamphetamine." In addition, the court accepted the recommendation in the PSR that Hernandez was a career offender for purposes of § 4B1.1. The net result was that ...

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