US v. Arturo Hernandez-Frias
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00211-REP-1 Copies to all parties and the district court/agency. [998831101]. Mailed to: Sarah Elizabeth Chase. [09-5222]
Appeal: 09-5222
Document: 71
Date Filed: 04/12/2012
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTURO HERNANDEZ-FRIAS, a/k/a Sergio Armando Andrade-Lopez,
a/k/a Arturo Fries Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:09-cr-00211-REP-1)
Argued:
March 20, 2012
Before MOTZ and
Circuit Judge.
SHEDD,
Decided:
Circuit
Judges,
and
April 12, 2012
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.
Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.
ON BRIEF: Samuel P. Simpson, V, MONTGOMERY &
SIMPSON, LLLP, Richmond, Virginia, for Appellant.
Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Arturo Hernandez-Frias pleaded guilty to being “found in”
the United States after previously being deported subsequent to
a conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a).
Hernandez-Frias appeals his sentence, challenging
both the calculation of his criminal history points under the
U.S. Sentencing Guidelines and the district court’s failure to
provide an individualized explanation for his sentence.
For the
reasons that follow, we affirm.
I.
Hernandez-Frias, a native of Mexico, legally entered the
United States on a work permit when he was a teenager.
In 1990,
however, he was convicted in California of a felony offense for
drug distribution, resulting in the cancellation of his work
permit.
In 1993, Hernandez-Frias was convicted of another drug-
related felony offense.
In 2000 and again in 2004, U.S. immigration authorities
arrested Hernandez-Frias and deported him from the United States
to
Mexico.
Each
time,
following
his
return
to
Mexico,
Hernandez-Frias illegally reentered the United States.
On July
23, 2005, Hernandez-Frias was arrested in Virginia for driving
under
the
convicted
influence
him
of
the
(“DUI”);
offense.
2
a
state
He
court
incurred
subsequently
another
DUI
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Date Filed: 04/12/2012
conviction in Virginia in 2009.
second
DUI
authorities
conviction,
discovered
on
that
While he was in jail for his
June
he
Page: 3 of 14
30,
was
2009,
U.S.
the
United
in
immigration
States
and
charged him with the instant offense.
Hernandez-Frias pleaded guilty to one count of being “found
in” the United States after previously being deported subsequent
to
a
conviction
for
8 U.S.C. § 1326(a).
an
aggravated
felony
in
violation
of
In preparing Hernandez-Frias’s presentence
report (“PSR”), the probation officer determined that HernandezFrias’s offense commenced on July 23, 2005 -- the date on which
Hernandez-Frias was arrested for his first DUI in Virginia. 1
The
probation officer then used this date to calculate HernandezFrias’s criminal history score pursuant to the U.S. Sentencing
Guidelines (“U.S.S.G.”).
Based on the July 23, 2005 commencement date, the probation
officer added criminal history points for Hernandez-Frias’s drug
conviction
in
1990.
See
U.S.S.G.
§§
4A1.1(a),
4A1.2(e)(1)
(directing the addition of three criminal history points for
“[a]ny prior sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the defendant’s
1
The PSR does not explain the probation officer’s choice of
July 23, 2005 as the commencement date. The reason is obvious,
however:
it was the first date after Hernandez-Frias’s 2004
deportation for which the record conclusively established his
illegal presence in the United States.
3
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commencement
of
Date Filed: 04/12/2012
the
instant
Page: 4 of 14
offense”).
Additionally,
the
probation officer added two criminal history points because he
found that Hernandez-Frias committed the instant offense while
under
the
September
§ 4A1.1(d)
three-year
2005
for
“good
his
(directing
behavior”
first
the
DUI
addition
sentence
conviction.
of
two
imposed
See
criminal
in
U.S.S.G.
history
points “if the defendant committed the instant offense while
under any criminal justice sentence”).
With the addition of
these
to
points,
and
others
not
relevant
this
appeal,
the
probation officer calculated that Hernandez-Frias had a criminal
history category of V.
In the district court, neither party initially objected to
the presentence report.
At the sentencing hearing, however,
when the court asked if either party had any objections, defense
counsel stated that Hernandez-Frias “has a question with regard,
apparently, to use of his prior record in [the] calculation of
his sentencing guidelines, [in that] some of the items on the
record are old.”
Counsel continued that the objection “has to
do with when this criminal conduct started, how long before, you
know, the 15 years’ issue.”
Defense counsel offered that he did
not “think we’ve got a valid objection” on that issue.
The
district
and
court
granted
a
Hernandez-Frias to confer.
recess
for
defense
counsel
After the recess, Hernandez-Frias
stated on the record that he had no objections.
4
The court then
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adopted
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the
Date Filed: 04/12/2012
presentence
report
as
Page: 5 of 14
tendered
by
the
probation
officer, which yielded an advisory Guidelines range of 70 to 87
months.
Upon
hearing
the
parties’
sentencing
arguments,
the
district court sentenced Hernandez-Frias to 72 months in prison.
The court stated that it had considered the 18 U.S.C. § 3553(a)
factors and that it believed that a within-Guidelines sentence
would accomplish the goals of those factors.
After announcing
the sentence, the court informed Hernandez-Frias that “it would
have been perfectly legitimate to have imposed the punishment of
87 months, but I did not feel it was a justifiable use of the
public funds to incarcerate you for the extra 15 months.
And if
you don’t learn in 72 months, you aren’t going to learn in 87
months that you can’t come back to this country without legal
permission.”
Hernandez-Frias timely noted this appeal.
II.
A.
Title 8, section 1326 of the U.S. Code prohibits aliens who
have been previously removed from this country from “enter[ing],
attempt[ing] to enter, or [being] . . . found in, the United
States”
without
permission
from
the
U.S.
Attorney
General.
Hernandez-Frias pleaded guilty to the offense of being “found
5
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in” the United States.
the
district
court
Page: 6 of 14
On appeal, Hernandez-Frias argues that
miscalculated
his
criminal
history
score
under the Sentencing Guidelines because it used the wrong date
for
the
commencement
of
his
offense.
He
asserts
that
the
offense of being “found in” the United States commences on the
date that immigration authorities discover a defendant in the
United States.
Thus, according to Hernandez-Frias, his offense
commenced on June 30, 2009 -- not July 23, 2005 as stated in his
PSR.
If his offense commenced on June 30, 2009, he notes that
the district court should not have assessed criminal history
points under U.S.S.G. § 4A1.1(a) or U.S.S.G. § 4A1.1(d) and the
exclusion of these points would have produced a lower applicable
Guidelines range.
In assessing a challenge to a district court’s application
of
the
Guidelines,
findings
United
for
clear
States
v.
we
typically
error
Allen,
and
446
review
its
legal
F.3d
522,
the
court’s
conclusions
527
(4th
factual
de
Cir.
novo.
2006).
Because Hernandez-Frias did not object to the calculation of his
criminal
history
score
before
the
district
Hernandez-Frias’s claim for plain error. 2
2
court,
we
review
To prevail, Hernandez-
The Government contends that by withdrawing his objection
at the sentencing hearing Hernandez-Frias waived his claim
entirely. See United States v. Olano, 507 U.S. 725, 733 (1993)
(comparing “waiver” and “forfeiture”). Hernandez-Frias counters
that this court should not find waiver because the record does
(Continued)
6
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Frias must demonstrate that the district court committed error,
that the error was plain, and that the error affected HernandezFrias’s
substantial
rights.
Fed.
R.
Crim.
P.
52(b);
United
States v. Olano, 507 U.S. 725, 731-32 (1993).
We hold that he
cannot
plainly
do
so;
the
district
court
did
not
err
in
calculating his criminal history score.
The
first
criminal
history
enhancement
at
issue,
§ 4A1.1(a), instructs the district court to add three points to
the defendant’s criminal history score for each prior sentence
of imprisonment exceeding thirteen months.
U.S.S.G. § 4A1.1(a).
Such a prior sentence counts only if it “was imposed within
fifteen years of the defendant’s commencement of the instant
offense” or “resulted in the defendant being incarcerated during
any part of such fifteen-year period.”
U.S.S.G. § 4A1.2(e)(1).
The Guidelines commentary explains that “the term ‘commencement
of the instant offense’ includes any relevant conduct.”
Id.
cmt. n.8 (citing U.S.S.G. § 1B1.3(a)(1)).
Abundant
case
law
holds
that
the
“relevant
conduct”
of
being “found in” the United States commences on the date that
not make clear that Hernandez-Frias’s objection at the hearing
was the same as the claim he now raises on appeal.
Indeed,
defense
counsel’s
explanation
to
the
district
court
of
Hernandez-Frias’s objection was hardly precise.
We need not
address this dispute, however, because we reject HernandezFrias’s claim even under plain error review.
7
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the defendant illegally reenters the country and continues until
he or she is discovered by immigration authorities.
See, e.g.,
United States v. Delgado-Hernandez, 646 F.3d 562, 567 (8th Cir.
2011); United States v. Hernandez-Guererro, 633 F.3d 933, 937
(9th Cir. 2011); United States v. Hernandez-Gonzalez, 495 F.3d
55, 60-61 (3d Cir. 2007); United States v. Ruiz-Gea, 340 F.3d
1181, 1189 (10th Cir. 2003); United States v. Mendez-Cruz, 329
F.3d 885, 889 (D.C. Cir. 2003); United States v. Lopez-Flores,
275 F.3d 661, 663 (7th Cir. 2001).
circuits,
we
conclude
Hernandez-Frias,
States,
not
that
commenced
when
he
was
immigration authorities.
the
precise
date
of
the
upon
In accord with our sister
offense
his
“found”
of
reentry
in
the
the
to
defendant,
the
United
United
States
by
Because the record does not disclose
Hernandez-Frias’s
reentry,
the
district
court reasonably used the date of his July 23, 2005 DUI as the
commencement date -- the first date that the record conclusively
establishes
Hernandez-Frias’s
illegal
presence
in
the
United
States following his 2004 deportation.
Using July 23, 2005 as the offense commencement date, the
district
court
pursuant
to
conviction.
§
appropriately
4A1.1(a)
added
for
criminal
history
Hernandez-Frias’s
1990
points
drug
Hernandez-Frias’s 1990 drug conviction carried a
8
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sentence
Date Filed: 04/12/2012
exceeding
thirteen
Page: 9 of 14
months 3
and
it
resulted
incarceration within fifteen years of July 23, 2005.
in
his
Therefore,
the district court properly assessed criminal history points for
that prior conviction under § 4A1.1(a).
The district court also properly assessed criminal history
points
because
Hernandez-Frias
committed
part
of
his
§
1326
offense while under a probationary sentence for his 2005 DUI
conviction.
district
history
Section 4A1.1(d) and its commentary instruct the
court
score
to
add
two
points
“if
the
defendant
to
a
defendant’s
committed
any
part
criminal
of
the
instant offense (i.e., any relevant conduct) while under any
criminal
justice
sentence.”
U.S.S.G.
§
4A1.1(d)
cmt.
n.4.
Hernandez-Frias’s 2005 DUI conviction carried a three year goodbehavior sentence.
Thus, Hernandez-Frias’s illegal presence in
the United States overlapped with his good-behavior sentence and
the district court appropriately added criminal history points
under § 4A1.1(d).
3
Hernandez-Frias’s original sentence for the 1990 drug
conviction was incarceration for 240 days followed by 36 months
of probation.
But, on September 21, 1990, Hernandez-Frias
received an additional 180 days incarceration for a probation
violation.
Under U.S.S.G. § 4A1.2(k)(1), such revocation
sentences are added to the original term of imprisonment for the
purposes of computing criminal history points, thereby carrying
Hernandez-Frias over the thirteen month threshold.
9
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B.
We also reject Hernandez-Frias’s alternative argument that,
even if his offense commenced upon his illegal reentry to the
United States, his offense could not have commenced prior to
December
2007.
The
unrebutted
evidence
in
the
record
establishes that Hernandez-Frias was in the United States as of
July 23, 2005.
Hernandez-Frias
But based on a stray statement in his PSR,
asserts
that
his
most
recent
reentry
to
the
United States occurred in December 2007 or later.
He did not
raise
this
argument
point
as
in
lacking
the
district
adequate
court,
factual
and
we
reject
support
to
show
his
plain
error.
Hernandez-Frias’s assertion that he left the United States
after July 23, 2005 rests entirely on the single statement in
his
PSR
Because
that
his
he
“last
children
saw
reside
his
he
December
statement proves that he visited Mexico in December 2007.
But
Hernandez-Frias’s
the
require
claims
2007.”
this
would
Mexico,
in
that
argument
in
children
us
to
make
circumstantial inference that simply because Hernandez-Frias saw
his children in December 2007, he must have traveled to Mexico
to do so.
But, of course, it is also possible that the children
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came to the United States. 4
Page: 11 of 14
And Hernandez-Frias offered no other
evidence of his alleged return to Mexico.
On this record, the
PSR’s lone nonspecific reference to seeing his children is far
from sufficient to establish that the district court plainly
erred
by
not
dating
the
commencement
of
Hernandez-Frias’s
offense to December 2007.
III.
Finally,
committed
Hernandez-Frias
reversible
argues
error
in
that
the
failing
district
to
court
provide
an
individualized explanation of his criminal sentence in light of
the factors enumerated under 18 U.S.C. § 3553(a).
See United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (“Regardless
of
whether
the
within-Guidelines
district
court
sentence,
it
imposes
must
an
place
above,
on
the
below,
or
record
an
‘individualized assessment’ based on the particular facts of the
case before it.”); see also United States v. Lynn, 592 F.3d 572,
576, 581 (4th Cir. 2010).
district
inadequate
court
committed
explanation
The Government concedes that the
procedural
for
error
in
Hernandez-Frias’s
4
providing
sentence,
an
but
The PSR additionally states that Virginia Steel Erectors
employed Hernandez-Frias “[f]rom 2000 until his arrest for the
instant offense,” suggesting his continuous presence in the
United States.
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contends that the error was harmless.
Gov’t Br. at 43.
We
agree.
As a threshold matter, we note that Hernandez-Frias did
properly preserve an objection to his sentence.
challenge
to
defendant
need
pronounced
a
proceedings
an
insufficiently
not
explained
specifically
sentence,
‘draw[]
but
he
arguments
object
must
from
sentence,
after
at
§
To preserve a
the
some
3553
court
point
for
“the
a
different than the one ultimately imposed . . . .’”
in
has
the
sentence
United
States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011) (quoting
Lynn, 592 F.3d at 576).
end
of
the
By requesting a sentence “at the low
guidelines”
by
recommended
advisory
advisory
the
and
the
“minimum
guidelines,”
Hernandez-Frias
effectively requested a sentence of 70 months.
court,
however,
Accordingly,
sentenced
him
Hernandez-Frias
to
72
preserved
months
an
sentence
The district
incarceration.
objection
to
his
sentence.
Because he preserved an objection, we apply harmless error
review in considering whether the district court’s procedural
error warrants reversal.
standard,
“the
demonstrates
Lynn, 592 F.3d at 579.
government
that
the
error
may
did
avoid
not
reversal
have
a
Under that
only
if
it
substantial
and
injurious effect or influence on the result and we can say with
fair assurance, that the district court’s explicit consideration
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of
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[the
Date Filed: 04/12/2012
defendant’s]
sentence imposed.”
(4th
Cir.
omitted).
2010)
The
arguments
Page: 13 of 14
would
not
have
affected
the
United States v. Boulware, 604 F.3d 832, 840
(internal
Government
quotation
has
marks
satisfied
that
and
alterations
burden
in
this
case.
At sentencing, Hernandez-Frias made several straightforward
arguments under 18 U.S.C. § 3553(a), namely that his age, the
age
of
his
incarceration
sentence.
court
prior
on
family
and
counseled
the
in
impact
favor
of
of
a
his
lesser
The record in this case indicates that the district
considered
arguments.
his
convictions,
and
After
appreciated
hearing
Hernandez-Frias’s
Hernandez-Frias’s
§
3553(a)
arguments
and
personal allocution, the court stated that it had considered the
§ 3553(a) factors and believed that a within-Guidelines sentence
for
Hernandez-Frias
§ 3553(a). 5
would
accomplish
the
objectives
of
Then, the district court sentenced Hernandez-Frias
to 72 months imprisonment -- only two months above the sentence
Hernandez-Frias requested (and fifteen months below the sentence
requested by the Government).
5
Additionally, earlier in the sentencing hearing, the
district court granted a recess for Hernandez-Frias and his
counsel to confer over a possible objection to the age of his
prior convictions, suggesting that the court was aware that the
staleness of Hernandez-Frias’s prior convictions was a relevant
consideration.
13
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Hernandez-Frias
sentencing
arguments.
raised
Page: 14 of 14
uncomplicated,
Although
the
district
relatively
court
weak
erred
by
failing to address them specifically on the record, we believe
that a remand for resentencing would not change the sentence
imposed given that the district court sentenced Hernandez-Frias
to nearly the sentence that he requested.
Boulware, 604 F.3d at
840 (declining to remand for resentencing where such a remand
would be “pointless”).
Indeed, on this record, we believe that
the district court undertook the analysis required by Carter,
but simply failed to make that analysis explicit.
Under these
circumstances, the district court’s error was harmless.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
14
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