United States v. Hernandez

44 F. App'x 813

Opinion

MEMORANDUM

**

Hernandez first argues that the district court erred when it concluded that it did not have discretion to grant a 1-level departure pursuant to U.S.S.G. § 3B1.2. This provision does not contemplate or authorize such a departure. Because Hernandez was not qualified for a departure under § 3B1.2, the district court was also without discretion to consider his request for a departure pursuant to § 2D1.1. See U.S.S.G. § 2D1.1, cmt. n. 14.

Hernandez also claims that he is entitled to a departure under § 3E1.1, which requires a defendant to “clearly demonstrate[ ] acceptance of responsibility for his offense.” Only in “rare situations [will] a defendant ... clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.” U.S.S.G. § 3E1.1, cmt. n. 2. Hernandez’s inculpato-ry statements evince no contrition or remorse for his actions. See United States v. Connelly, 156 F.3d 978, 982 (9th Cir. 1998) (holding that “a failure to demonstrate contrition and remorse weighs against a finding of acceptance of responsibility”). Considering that “the sentencing judge is entitled to great deference on review,” U.S.S.G. § 3E1.1, cmt. n. 5, we cannot conclude that the district court clearly erred in denying a departure.

Finally, Hernandez claims that he should be resentenced pursuant to Ap-prendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000) (overruled on other grounds), we held that, pursuant to Ap-prendi, an individual cannot be sentenced above the “prescribed statutory maximum,” which is the maximum punishmént to which the defendant could be exposed “solely under the facts found by the jury.” 21 U.S.C. § 841(b)(1)(C) provides a maximum sentence of 20 years’ incarceration and indefinite supervised release without regard to a finding of any particular drug amount. Because Hernandez’s sentence of 235 months does not exceed the prescribed statutory maximum, we affirm his sentence.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.