United States v. Oscar Ortega-Hernandez

804 F.3d 447, 420 U.S. App. D.C. 31, 2015 U.S. App. LEXIS 18680, 2015 WL 6457449
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 27, 2015
Docket14-3022
StatusPublished
Cited by10 cases

This text of 804 F.3d 447 (United States v. Oscar Ortega-Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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. Oscar Ortega-Hernandez, 804 F.3d 447, 420 U.S. App. D.C. 31, 2015 U.S. App. LEXIS 18680, 2015 WL 6457449 (D.C. Cir. 2015).

Opinion

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Oscar Ramiro Ortega-Hernandez pleaded guilty to injuring a dwelling and placing lives in jeopardy, 18 U.S.C. § 1363, and discharging a firearm during a crime of violence, id. § 924(c)(1)(A). As part of a plea bargain, he agreed to waive his right to appeal his sentence. That sentence includes a twenty-five year term of imprisonment, which falls within the applicable Sentencing Guidelines range, and sixty months of supervised release. The district *449 judge indicated' — inadvertently, it appears — on the written judgment of conviction, but not in the oral pronouncement of the sentence, that Ortega-Hernandez must register as a sex offender as a condition of his supervised release. The government never asked the district court to require that Ortega-Hernandez register as a sex offender, and it has not identified facts that would support such a registration. The parties agree that the district court erred in checking the “sex offender” box on the pre-printed judgment form.

On appeal, Ortega-Hernandez challenges two aspects of his sentence. First, he contends that he should not be subject to the sex-offender registration condition of supervised release. The government agrees. Because the government has not asked us to enforce the appeal waiver with respect to that condition, we address on its merits Ortega-Hernandez’s challenge to that condition and remand to the district court to conform the written judgment to the oral sentence. Second, Ortega-Hernandez contends that, given Ortega-Hernandez’s mental health history, the sentencing judge committed procedural and substantive error in setting such a long term of imprisonment. The government counters that Ortega-Hernandez validly waived his right to appeal that aspect of his sentence. We agree with the government on that point. We therefore dismiss Ortega-Hernandez’s challenge to his term of imprisonment.

I.

On November 11, 2011, Ortega-Hernandez aimed a high-powered rifle at the White House and fired at least eight shots. Several bullets hit the part of the building where the President and his family live. No one was injured. According to people who know him, Ortega-Hernandez harbored paranoid beliefs about the federal government. He believed that President Obama was the anti-Christ and that it was Ortega-Hernandez’s mission, as “the modern day Jesus Christ,” to “take out Obama.” Gov’t App. 106-07.

The United States charged Ortega-Hernandez with nineteen counts related to the shooting, including attempting to assassinate the President. Shortly before his trial was set to begin, Ortega-Hernandez pleaded guilty to, and was convicted of, two counts. As part of the plea deal, he agreed to a terrorism adjustment that significantly raised his estimated offense level under the Sentencing Guidelines, resulting in an estimated guideline range of 288 to 330 months of imprisonment. The plea agreement stipulates that a sentence within that range “would constitute a reasonable sentence in light of all of the factors set forth in 18 U.S.C. § 3553(a).” Pub. App. 29.

Ortega-Hernandez’s plea agreement includes a waiver of his right to appeal. The appeal waiver states that Ortega-Hernandez waived “the right to appeal the sentence in this case, including any term of imprisonment, fine, award of restitution, term of supervised release, and the manner in which the sentence was determined, except to the extent the Court sentences [him] above the statutory maximum or applicable ' guidelines range....” Pub.App. 32.

At the plea hearing, the district judge reviewed the plea agreement with Ortega-Hernandez, as required by Federal Rule of Criminal Procedure 11. The judge observed that “everybody has agreed that a sentence within the estimated guideline range would be a reasonable sentence under the law,” and asked Ortega-Hernandez whether he understood that. Pub. App. 59. He answered that he did. As to the appeal waiver, the judge explained that “normally a defendant can appeal his sen *450 tence and say it was the wrong sentence, it’s too stern. You’ve agreed not to do that as long as you are not sentenced above the statutory maximum or higher than the guideline range.” Pub.App. 63. She also informed Ortega-Hernandez that, notwithstanding the appeal waiver, he would retain his right to attack his sentence on the ground that he had received ineffective assistance of counsel or that he had newly discovered evidence. The judge asked if he understood those limitations on his appellate rights, and he replied that he did. Ortega-Hernandez further confirmed that he understands English, read the plea documents and discussed them with his lawyers, and was satisfied with his lawyers’ advice. The judge found that Ortega-Hernandez’s decision was informed and voluntary and accepted his plea of guilty to the two counts.

During sentencing proceedings, Ortega-Hernandez urged the district judge to vary from the agreed-upon guideline range. Defense counsel argued that Ortega-Hernandez was not a terrorist; rather, he was a confused, mentally troubled person who had not intended to kill the President. The judge acknowledged those arguments and noted that they were “well-taken.” She then talked about each of the relevant factors under 18 U.S.C. § 3553(a). She acknowledged Ortega-Hernandez’s mental health struggles and granted them some mitigating weight, though she ultimately concluded that they were offset by the seriousness of the offense and the need for both specific and general deterrence.

The district judge then announced the sentence. She imposed a three-hundred-month term of imprisonment, a sixty-month term of supervised release, and a restitution award. The judge also announced several general and special conditions of supervised release to which Ortega-Hernandez would be subject, including that he should cooperate with DNA collection and must not possess a firearm or other dangerous weapon. She said nothing about sex-offender registration.

Three days later, the district judge entered the written judgment against Ortega-Hernandez. The judgment form is •pre-printed, with spaces to enter information and options to check boxes. In the section entitled “Supervised Release,” the form lists generally applicable conditions of supervised release. It also lists five potential additional conditions with boxes for the judge to check if those conditions apply. As relevant here, the second of the five conditions prohibits the defendant from possessing a firearm, ammunition, and other weapons. The third condition mandates cooperation with DNA collection. The fourth condition orders compliance with the requirements of the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901, et seq. (SORNA), as directed by the appropriate official. Ortega-Hernandez has never been convicted of a sex offense.

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Bluebook (online)
804 F.3d 447, 420 U.S. App. D.C. 31, 2015 U.S. App. LEXIS 18680, 2015 WL 6457449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oscar-ortega-hernandez-cadc-2015.