United States v. Jose Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 2, 2020
• Docket: 16-56675
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-56675

Plaintiff-Appellee, D.C. Nos. 3:16-cv-01452-H v. 3:10-cr-03173-H-3

JOSE LUIS HERNANDEZ, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-55385

Plaintiff-Appellee, D.C. Nos. 3:16-cv-01537-H v. 3:10-cr-03173-H-1

JULIAN MONDRAGON-HERNANDEZ, AKA David Rojas,

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Submitted August 14, 2020** Pasadena, California

* 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). Before: WARDLAW and CLIFTON, Circuit Judges, and CHOE-GROVES,*** Judge.

Jose Luis Hernandez and Julian Mondragon-Hernandez (collectively, the

“Defendants”) were convicted by jury trial of conspiracy to commit Hobbs Act

robbery, conspiracy to possess cocaine with intent to distribute, and firearms

offenses under 18 U.S.C. § 924(c). Defendants now appeal the denials of their

28 U.S.C. § 2255 motions to vacate, set aside or correct their convictions arising

under § 924(c), for which they were each sentenced to a 60-month term of

imprisonment. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

1. The jury was instructed that to convict on the firearms charge under

§ 924(c) it had to find beyond a reasonable doubt that Defendants possessed a

firearm in furtherance of the drug conspiracy or the conspiracy to commit Hobbs

Act Robbery. The jury verdict form for the § 924(c) conviction did not specify

which predicate offense the jury relied upon. In light of the Supreme Court’s

decision in United States v. Davis, 139 S. Ct. 2319 (2019), which held that

§ 924(c)(3)(B) is unconstitutionally vague, the parties now agree that the

instruction was erroneous because conspiracy to commit Hobbs Act robbery no

longer qualifies as a crime of violence and thus is not a predicate offense for the

§ 924(c) conviction.

*** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation.

2 2. We need not reach the question of whether the Government waived its

argument that this error was harmless because we would nonetheless excuse it. All

three Rodriguez factors—“(1) the length and complexity of the record, (2) whether

the harmlessness of an error is certain or debatable, and (3) the futility and

costliness of reversal and further litigation”—weigh in favor of excusing any

possible waiver by the Government. United States v. Rodriguez, 880 F.3d 1151,

1164 (9th Cir. 2018). For the first factor, the record in this case, which spans just

over a year, is not sufficiently lengthy or complex so as to “render the

harmlessness inquiry a burdensome one.” Id. As for the second and third, the

record demonstrates that the instructional error was harmless, so reversal would

lead only to costly, and ultimately futile, further litigation.

3. Because the error did not have a “substantial and injurious effect or

influence in determining the jury’s verdict,” it was harmless. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (internal citation omitted); Pulido v.

Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). Defendants’ argument that

Stromberg v. California, 283 U.S. 359 (1931), mandates reversal is foreclosed

because “drawing a distinction between alternative-theory [Stromberg] error and

the instructional errors in Neder, Roy, Pope, and Rose would be patently illogical.”

Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008).

3 As the trial record makes clear, Defendants’ § 924(c) convictions are

independently supported by the drug trafficking conspiracy offense, and

Defendants committed two different predicate offenses while possessing a

firearm—a Hobbs Act conspiracy that was inextricably intertwined with a

conspiracy to possess cocaine with intent to distribute.

AFFIRMED.