USA v. Rafael Hernandez-Carrillo
Per Curiam OPINION filed : AFFIRMED, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Richard F. Suhrheinrich, Circuit Judge and R. Guy Cole , Jr., Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0068n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
Jan 15, 2013
UNITED STATES OF AMERICA,
RAFAEL HERNANDEZ-CARRILLO, aka
Gabriel Torres Olivieri,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
Before: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.
PER CURIAM. Rafael Hernandez-Carrillo, a pro se federal prisoner, appeals a district
court’s amended judgment, which followed our decision vacating one of his convictions.
Following a jury trial in 2009, Hernandez-Carrillo was convicted of conspiring to possess
with the intent to distribute over 1,000 kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1) and 846,
and engaging in a continuing criminal enterprise. See 21 U.S.C. § 848(a) and (b). The district court
sentenced Hernandez-Carrillo to 360 months of imprisonment for the conspiracy conviction and life
in prison for the criminal enterprise conviction.
On appeal, Hernandez-Carrillo argued, among other things, that his conspiracy conviction
constituted double jeopardy because conspiracy is a lesser included offense of engaging in a criminal
enterprise. The government and this Court agreed. We thus vacated Hernandez-Carrillo’s
conspiracy conviction, affirmed his conviction for engaging in a criminal enterprise, and remanded
the case to the district court. On remand, the district court amended Hernandez-Carrillo’s judgment
-2by vacating his sentence for the conspiracy conviction and dismissing, with prejudice, the conspiracy
count from the indictment.
Hernandez-Carrillo timely filed a notice of appeal. On appeal, Hernandez-Carrillo argues
that: (1) the dismissal of the conspiracy count resulted in a defective indictment with respect to the
count for engaging in a criminal enterprise; (2) the jury instructions were improper with respect to
the criminal enterprise count; (3) the district court vacated his remaining forfeiture counts; and (4)
the district court should have issued an injunction prohibiting his removal from the United States
following his release from prison.
Issues one, two, and four are not properly before this Court. By failing to raise these issues
with the district court, Hernandez-Carrillo has waived his right to have these issues addressed on
appeal. See Vance v. Wade, 546 F.3d 774, 781 (6th Cir. 2008).
Further, with regards to issue four, Hernandez-Carrillo agreed with the government’s request
for the sentencing order to include a directive that if he was ever released from prison, he would be
turned over to Immigration and Customs Enforcement for deportation. Under the doctrine of invited
error, Hernandez-Carrillo cannot now “complain of the error on appeal unless that error would result
in manifest injustice.” See United States v. Demmler, 655 F.3d 451, 458 (6th Cir.), cert. denied, 132
S. Ct. 794 (2011). He fails to demonstrate any manifest injustice that would warrant consideration
by this Court.
Hernandez-Carrillo’s final assertion that the forfeiture counts should be dismissed because
the district court did not mention them in its amended judgment is without merit. The amended
judgment reflects our decision regarding the two counts addressed in our original order. Our
decision cannot be reasonably interpreted as intending to vacate the forfeiture counts, which we did
not address in Hernandez-Carrillo’s original appeal. See United States v. Booth, 551 F.3d 535, 539
(6th Cir. 2009).
The district court’s amended judgment is affirmed.
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