United States v. Hernández

541 F.3d 422, 2008 U.S. App. LEXIS 18610
CourtCourt of Appeals for the First Circuit
DecidedAugust 29, 2008
DocketNo. 07-1828
StatusPublished
Cited by3 cases

This text of 541 F.3d 422 (United States v. Hernández) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hernández, 541 F.3d 422, 2008 U.S. App. LEXIS 18610 (1st Cir. 2008).

Opinion

SELYA, Circuit Judge.

In this single-issue criminal appeal, defendant-appellant Fermín Hernández raises a question of first impression concerning the application of section 4Al.l(d) of [423]*423the federal sentencing guidelines. Although an oddly placed transitional expression in an application note and the ingenuity of able counsel combine to give us momentary pause, we conclude that the guideline provision says what it means and means what it says. Hence, the district court did not commit any interpretive error and the defendant’s sentence must be affirmed.

Because this appeal follows the entry of a guilty plea, we draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991). We limit our recital to those facts that are helpful to an understanding of the issue on appeal.

In late 2003, the government began a protracted investigation of a large-scale heroin trafficking ring. The probe eventually led to an indictment that charged fifteen persons, including the defendant, with conspiracy to distribute one kilogram or more of heroin during the period from December of 2003 to January of 2005. See 21 U.S.C. §§ 841(a)(1), 846. As matters turned out, the evidence of the defendant’s direct involvement in the conspiracy boiled down to (i) his participation in the delivery of about 300 grams of heroin on June 9, 2004 and (ii) testimony that he had participated in at least two deliveries at unspecified times during the life of the conspiracy.

The defendant originally maintained his innocence but, on December 13, 2006, entered a guilty plea to the conspiracy count as framed. The district court convened the disposition hearing on April 24, 2007.

The defendant’s criminal history revealed one relevant entry: a New York state conviction for operating a motor vehicle while under the influence of alcohol (OUI). See N.Y. Veh. & Traf. Law § 1192. The New York court convicted the defendant of that offense on July 22, 2004, and sentenced him on the same date to, among other things, a period of criminal supervision to begin immediately and to expire on July 21, 2005.

The PSI Report in the federal criminal case recommended that this conviction yield an aggregate of three criminal history points: one for the conviction itself, see USSG § 4Al.l(c); and two more because the federal offense was committed while the defendant was under a criminal justice sentence emanating from the state OUI offense, see id. § 4Al.l(d). The government supported this recommendation.

The defendant objected to the two-point enhancement under section 4Al.l(d). He argued that, for sentencing purposes, the federal offense should be deemed to have occurred on June 9, 2004 (the date of his proven personal involvement in the conspiracy)., Since that specific conduct transpired prior to the imposition of the state criminal justice sentence, section 4Al.l(d) should not apply.

The district court rejected this reasoning and overruled the defendant’s objection. Noting that the July 2004 OUI court supervision sentence had been imposed within the fourteen-month span of the conspiracy, the court ruled that section 4Al.l(d) required the addition of the two disputed criminal history points. The resultant criminal history score rendered the defendant ineligible for safety-valve relief. See USSG § 501.2(a)(1). Consequently, the court sentenced him to the mandatory minimum term of imprisonment: sixty months. See 21 U.S.C. § 841(b)(1)(B). This timely appeal followed.

[424]*424We review a sentencing court’s interpretation and application of the guidelines de novo. United States v. Goodhue, 486 F.3d 52, 55 (1st Cir.2007). The guideline provision here at issue — USSG § 4Al.l(d) — requires a sentencing court to add two points to a defendant’s criminal history score “if the defendant committed the instant offense while under any criminal justice sentence, including probation.” For guideline purposes, “offense” is defined as “the offense of conviction and all relevant conduct ... unless a different meaning is specified or is otherwise clear from the context.” USSG § 1B1.1, cmt. (n.l(H)).

In this case, the offense of conviction is conspiracy. The indictment makes manifest that the offense spanned a fourteen-month period from December 2003 to January 2005. The criminal supervision sentence for the unrelated OUI offense was imposed about midway through this span. The defendant pleaded guilty to the conspiracy as charged. At first blush, then, it seems as though the instant offense (or, at least, some part of it) was committed while the defendant was under a criminal justice sentence.

To counter this construction, the defendant points to an application note to section 4Al.l(d). The note states that “[t]wo points are added if the defendant committed any part of the instant offense (ie., any relevant conduct) while under any criminal justice sentence.” USSG § 4A1.1, cmt. (n.4) (emphasis supplied). The defendant posits that the underscored transitional expression equates “any part of the instant offense” with “any relevant conduct” and, thus, that the latter limits the former. Accordingly, his thesis runs, section 4Al.l(d), read through the prism of note 4, focuses not on the offense of conviction simpliciter but, rather, on whatever act(s) the defendant himself committed within the confines of that offense. He adds that the qualifier to the guideline definition of “offense” — which reads “unless a different meaning is specified or is otherwise clear from the context,” USSG § 1B1.1, cmt. (n.l(H)) — opens the door for reading note 4 to disrupt the plain meaning of section 4Al.l(d).

To be sure, note 4 is not a model of literary elegance. The transitional expression “i.e.” (which literally translates as “that is”) appears imprecise in this context, and its use tends to obfuscate the note’s meaning. But it is a quantum leap to assume, as the defendant would have it, that this awkward locution should be regarded as a clear or specific signal from the Sentencing Commission that it desired to alter the meaning of “instant offense” in section 4Al.l(d). At most, the defendant has pointed out a possible inconsistency between the guideline and note 4-and any inconsistency between a guideline provision and a piece of guideline commentary must be resolved in favor of the plain meaning of the guideline itself. See Stinson v. United States, 508 U.S. 36, 43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992).

In all events, we think that the inconsistency envisioned by the defendant is more imagined than real.

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United States v. Ilarraza
963 F.3d 1 (First Circuit, 2020)
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778 F.3d 375 (First Circuit, 2015)
United States v. Hernandez
541 F.3d 422 (First Circuit, 2008)

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Bluebook (online)
541 F.3d 422, 2008 U.S. App. LEXIS 18610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hernandez-ca1-2008.