United States v. Albert Hernandez, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 2019
• Docket: 19-10147
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10147

Plaintiff-Appellee, D.C. No. 2:12-cr-00254-JCM-PAL-1 v.

ALBERT SILVA HERNANDEZ, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Albert Silva Hernandez, Jr., appeals from the district court’s judgment and

challenges the 262-month custodial sentence and lifetime term of supervised

release imposed upon remand for resentencing following his jury-trial conviction

for eight counts of sexual exploitation of a child, in violation of 18 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 2251(a) & (e). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Hernandez contends that the district court erred by denying his request for

an acceptance of responsibility adjustment under U.S.S.G. § 3E1.1. Contrary to

Hernandez’s contention, the district court did not conclude that Hernandez was

precluded from receiving the adjustment because he went to trial. Rather, the

record reflects that the district court denied the adjustment based on its assessment

that Hernandez’s pre-trial conduct undermined his post-trial expressions of

remorse. This was not an abuse of discretion. See U.S.S.G. § 3E1.1 cmt. n.2;

United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc)

(application of the Guidelines to the facts is reviewed for abuse of discretion).

Moreover, Hernandez has not demonstrated any factual misunderstanding by the

district court regarding events that occurred prior to trial affected its decision to

deny the adjustment or the sentence imposed. See United States v. Christensen,

732 F.3d 1094, 1101-03 (9th Cir. 2013).

Hernandez next contends that the district court erred by failing to respond to

his arguments or explain its reasons for imposing a lifetime term of supervised

release. We review for plain error, see United States v. Valencia-Barragan, 608

F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none. The record

reflects that the district court considered Hernandez’s arguments and its reasons for

imposing a within-Guidelines custodial sentence and lifetime term of supervision

2 19-10147 are apparent from the record. See United States v. Carty, 520 F.3d 984, 992 (9th

Cir. 2008) (en banc) (adequate explanation may be inferred from the record as a

whole).

Finally, Hernandez contends that his sentence is substantively unreasonable.

The district court did not abuse its discretion. See Gall v. United States, 552 U.S.

38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) factors and totality of the circumstances, including the seriousness of the

offense. See Gall, 552 U.S. at 51; see also United States v. Williams, 636 F.3d

1229, 1232-34 (9th Cir. 2011) (lifetime term of supervised release may be imposed

on an offender who commits sexual crimes against children).

AFFIRMED.

3 19-10147