United States v. Hernandez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50920
Plaintiff-Appellee,
v.  D.C. No.
CR-04-02983-IEG
MARCOS ALONZO HERNANDEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
October 17, 2006—Pasadena, California
Filed February 14, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Gould
1827
1830 UNITED STATES v. HERNANDEZ
COUNSEL
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for appellant Marcos Alonzo Hernandez.
Bruce C. Smith, Assistant United States Attorney, San Diego,
California, for appellee United States of America.
OPINION
GOULD, Circuit Judge:
Petitioner Marcos Alonzo Hernandez (“Hernandez”)
appeals his convictions for possession of methamphetamine
UNITED STATES v. HERNANDEZ 1831
with intent to distribute and for importation of more than fifty
grams of methamphetamine. Hernandez argues that his con-
victions must be reversed because the district court admitted
testimony commenting on his silence during custodial interro-
gation, in violation of the Fifth Amendment, and because the
district court erroneously denied his request for a jury instruc-
tion on the lesser included offense of simple possession. Her-
nandez also contends that his sentence should be vacated
because either the mandatory language of 18 U.S.C. § 3553(f)
renders the safety valve provision invalid after United States
v. Booker, 543 U.S. 220 (2005), or because § 3553(f)’s
requirements are advisory after Booker, and the district court
should have applied it in sentencing Hernandez. We have
jurisdiction under 28 U.S.C. § 1291 and affirm in part and
reverse in part the judgment of the district court.
I
On September 20, 2004, at about 11:30 p.m., Hernandez
and his companion, Paul Ortega, entered the United States
from Mexico, at the port of entry, Otay Mesa, California.
Ortega was the driver, and Hernandez was the front seat pas-
senger. In conducting the primary inspection of Hernandez
and Ortega, Customs and Border Protection (“CBP”) officer
James observed anxiety in both men, so James referred them
to a more intensive secondary inspection.
At the secondary inspection, both Hernandez and Ortega
were ordered out of the vehicle and were patted down. There
were six CBP officers present, and CBP officer Carlas testi-
fied that at this secondary inspection, if “Hernandez had
turned and tried to run,” CBP officers would have stopped
him.
During the pat-down of Hernandez, Carlas felt and pulled
out of Hernandez’s left front pants pocket an opaque cello-
phane bag about the size of an open hand. Carlas held the
package up for Hernandez to see and asked, “what is this?”
1832 UNITED STATES v. HERNANDEZ
Hernandez gave no response. CBP officer Bisa then asked
Hernandez, “is it meth?” Hernandez replied, “yes.” CBP offi-
cers then handcuffed Hernandez and Ortega and escorted
them to the secondary security office, where CBP officer
Hicks formally arrested Hernandez for possession of narcotics
after the package tested positive for methamphetamine. Alan
Randa, a forensic chemist employed by the Drug Enforcement
Administration, later tested and determined that Hernandez’s
package was 70% pure methamphetamine, and had a net
weight of 159.1 grams, the equivalent of 111.3 grams of pure
or “actual” methamphetamine.
Hernandez was charged with one count of importation of
approximately 115 grams of actual methamphetamine, in vio-
lation of 21 U.S.C. §§ 952 and 960, and one count of posses-
sion of 115 grams of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). During trial,
in the government’s case-in-chief, CBP officer Carlas testified
that after he pulled the package from Hernandez’s front left
pants pocket and asked him “what is this?” Hernandez did not
respond; and that CBP officer Bisa then asked Hernandez if
it was meth. Defense counsel objected to this testimony. Out-
side the presence of the jury, the district court found that at
the time of the secondary inspection Hernandez was “detained
and he couldn’t leave,” and Carlas’s question, “what is this?,”
and Hernandez’s subsequent silence were admissible, but that
the government could not use Bisa’s question, “is it meth?”,
or Hernandez’s response, “yes” in its case-in-chief.
Immigration and Customs Enforcement Agent Amatore tes-
tified as an expert witness that Hernandez possessed the
methamphetamine for resale and distribution rather than per-
sonal consumption. Amatore concluded that the methamphet-
amine seized from Hernandez had a reasonable wholesale
value in southern California of between $2,160 and $4,140.
At the jury instruction conference, Hernandez requested a
jury instruction on the lesser included offense of simple pos-
UNITED STATES v. HERNANDEZ 1833
session to the charged offense of possession with intent to dis-
tribute. The district court denied this request and the jury
convicted Hernandez on both counts in the indictment.
The mandatory statutory minimum sentence for both of
Hernandez’s convictions is ten years. Hernandez argued that
the safety valve provision, 18 U.S.C. § 3553(f), and U.S.S.G.
§ 5C1.2 rendered the sentencing guidelines mandatory in vio-
lation of Booker. During sentencing the district court adjusted
Hernandez’s criminal history category downward from a Cat-
egory III to Category I, noting that the appropriate sentencing
range under the federal guidelines was then 63 to 78 months.
However, the district court determined that since it was the
criminal history points and not the criminal history category
that controlled eligibility for the safety valve provisions of 18
U.S.C. § 3553(f), Hernandez was not eligible for the safety
valve provision because he had more than one criminal his-
tory point. The district court sentenced Hernandez to the stat-
utory minimum sentence of 120 months. Hernandez appealed.
II
We first address Hernandez’s claim that the district court
erroneously admitted testimony at trial commenting on his
silence during custodial interrogation, in violation of the Fifth
Amendment. We review whether there has been a violation of
a defendant’s Fifth Amendment rights de novo. See United
States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002) (review-
ing comments on defendant’s silence).
[1] The right to remain silent is founded in the Fifth
Amendment to the United States Constitution, which provides
that “[n]o person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. Const. amend. V; see
also United States v. Velarde-Gomez, 269 F.3d 1023, 1029
(9th Cir. 2001) (en banc) (stating that Miranda v. Arizona,
384 U.S. 436 (1966), warnings are “a prophylactic means of
safeguarding Fifth Amendment rights” and that an “individual
1834 UNITED STATES v. HERNANDEZ
has a right to remain silent in the face of [custodial] govern-
ment questioning, regardless of whether the Miranda warn-
ings are given” (internal quotation marks omitted)). This right
to remain silent carries an implicit “assurance that silence will
carry no penalty.” Doyle v. Ohio, 426 U.S. 610, 618 (1976).
The government may use a defendant’s post-arrest, pre-
Miranda silence for impeachment, but it may not do so “in its
case-in-chief.” Velarde-Gomez, 269 F.3d at 1029 n.1, 1033.
The district court allowed the government, in its case-in-
chief, to present testimony relating to Hernandez’s post-arrest
pre-Miranda silence. We conclude that the district court vio-
lated Hernandez’s Fifth Amendment rights by admitting testi-
mony commenting on his silence.
[2] Generally, a suspect’s Miranda rights are triggered dur-
ing custodial interrogation. Miranda, 384 U.S. at 444. Interro-
gation is “express questioning” by the police, or “any words
or actions on the part of the police . . . that the police should
know are reasonably likely to elicit an incriminating response
from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-
01 (1980) (footnote omitted). Officer Carlas testified that
when he removed the opaque package from Hernandez’s
pants pocket he believed it contained drugs. When officer
Carlas then asked, “what is this?”, not only was this direct
questioning, but based on officer Carlas’s belief that he was
holding drugs in his hand, he knew or should have known his
question could reasonably lead to an incriminating response
from Hernandez.
[3] An individual is in custody if considering the circum-
stances surrounding an interrogation “a reasonable person . . .
felt he or she was not at liberty to terminate the interrogation
and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995).
Relevant circumstances to the custody analysis “include the
language used by the officers, the physical characteristics of
the place where the question occurs, the degree of pressure
applied to detain the individual, the duration of the detention,
UNITED STATES v. HERNANDEZ 1835
and the extent to which the person was confronted with evi-
dence of guilt.” United States v. Butler, 249 F.3d 1094, 1099
(9th Cir. 2001). In this case, Hernandez was at a secondary
customs inspection station between the United States and
Mexico. He was surrounded by six CBP officers, ordered out
of the car, ordered to place his hands on top of the vehicle and
subjected to a pat-down. If he had tried to leave, he would
have been stopped. The district court found that there was “no
doubt [Hernandez] was detained and he couldn’t leave.” Con-
sidering the circumstances of the interrogation, we conclude
that a reasonable person in Hernandez’s position would not
have felt free to terminate the inspection by the CBP officers
and leave. Because Hernandez was under custodial interroga-
tion when he did not respond to officer Carlas’s question, his
Miranda rights were triggered, and the district court erred by
admitting testimony relating to Hernandez’s silence.
The government has the burden of proving this error was
harmless beyond a reasonable doubt. See Chapman v. Califor-
nia, 386 U.S. 18, 24 (1967) (placing the burden on “the bene-
ficiary of [the] constitutional error”). “In the context of
comments on silence, we consider three factors: ‘[1] the
extent of comments made by the witness, [2] whether an
inference of guilt from silence was stressed to the jury, and
[3] the extent of other evidence suggesting defendant’s
guilt.’ ” Velarde-Gomez, 269 F.3d at 1034-35 (alterations in
original) (quoting United States v. Newman, 943 F.2d 1155,
1158 (9th Cir. 1991) (applying harmless error review)).
As to the first factor, the extent of the witness’s comments
were brief—officer Carlas mentioned Hernandez’s silence
only twice. The second factor, whether Hernandez’s silence
was stressed to the jury, also favors finding harmlessness, as
the government did not mention Hernandez’s silence to the
jury again.1
1
The government claims that it did not bring Hernandez’s silence up
again, and Hernandez does not contest this assertion.
1836 UNITED STATES v. HERNANDEZ
The third factor, too, the extent of the evidence suggesting
Hernandez’s guilt, supports a finding of harmlessness. Here,
there was overwhelming evidence that Hernandez was guilty
of at least possession of methamphetamine and importation of
more than fifty grams of methamphetamine. The package,
which tested positive for more than 159 grams of metham-
phetamine, was found on Hernandez’s person as he was trying
to enter the United States from Mexico. This evidence was
uncontroverted at trial.
[4] Hernandez argues that because he had no knowledge
that the drugs were in his left front pants pocket, the error was
prejudicial because it commented on his knowledge that drugs
were present. We disagree. Hernandez’s silence when asked
about the package was not in itself inculpatory. His silence
was not inconsistent with his defense theory that the driver
planted the drugs on him. Moreover, given the overwhelming
evidence against Hernandez, we are confident that a jury in
the end would have ignored Hernandez’s improbable story
that he did not know drugs were in his front pants pocket. We
hold that the inclusion of testimony regarding Hernandez’s
silence was harmless beyond a reasonable doubt.
III
A
Hernandez next argues that his conviction for possession of
methamphetamine with intent to distribute should be vacated
because the district court refused to instruct the jury on the
lesser included offense of simple possession.
[5] We review a district court’s refusal to instruct on a
lesser included offense using a two part test. First, “the defen-
dant must prove that the offense on which instruction is
sought is a lesser-included offense of that charged.” United
States v. Fejes, 232 F.3d 696, 703 (9th Cir. 2000) (citation
and internal quotation marks omitted). This is reviewed de
UNITED STATES v. HERNANDEZ 1837
novo. See United States v. Arnt, ___ F.3d ___, 2007 WL
177829, at *3 (9th Cir. January 25, 2007). The government
concedes that 21 U.S.C. § 844(a), simple possession of
methamphetamine, is a lesser included offense of 21 U.S.C.
§ 841(a), possession of methamphetamine with intent to dis-
tribute.
[6] Second, to warrant a lesser included offense instruction
“the evidence at trial must be such that a jury could rationally
find the defendant guilty of the lesser offense, yet acquit him
of the greater.” Schmuck v. United States, 489 U.S. 705, 716
n.8 (1989) (citing Keeble v. United States, 412 U.S. 205, 208
(1973)). We review this step of the inquiry for abuse of dis-
cretion. See Fejes, 232 F.3d at 703.
We have previously stated that when “a defendant is
charged with possession with intent to distribute, the district
court may refuse to give an instruction on simple possession
where there is a large quantity of a drug and other evidence
tending to establish distribution.” United States v. Vaander-
ing, 50 F.3d 696, 703 (9th Cir. 1995). We do not require a
lesser included instruction in such circumstances, because
once a jury determines that a defendant possessed the drugs,
“it could not rationally conclude that there was no intent to
distribute.” United States v. Powell, 932 F.2d 1337, 1342 (9th
Cir. 1991) (refusing to require a lesser included offense
instruction where the defendant had more than eleven pounds
of cocaine hidden in a bag in his basement; various smaller
amounts of cocaine located throughout his house; rinsed-
kilogram bags, which had recently held cocaine; a portable
electronic scale and triple beam balance; a currency counter;
and $162,000 in cash) (citing United States v. Espinosa, 827
F.2d 604, 615 (9th Cir. 1987) (holding that a rational jury
could only conclude there was an intent to distribute where
the defendant possessed sixty-nine pounds of cocaine in an
unfurnished apartment to which the defendant had keys)).
[7] This rule is not applicable here because the government
presented no evidence, other than the methamphetamine itself
1838 UNITED STATES v. HERNANDEZ
and expert testimony, to establish an intent to distribute.
Drugs by themselves, in quantities that could rationally be
thought by the jury to be for personal use, without other evi-
dence of intent to distribute, are not enough to exclude a jury
instruction on a lesser included offense. See Vaandering, 50
F.3d at 703-04; Powell, 932 F.2d at 1342. This case is gov-
erned by the standard announced in Schmuck: If a rational
jury could find Hernandez guilty of the lesser offense, yet
acquit him of the greater, then the district court abused its dis-
cretion by failing to give a lesser included jury instruction.
See Schmuck, 489 U.S. at 716 n.8.
Certainly, there are cases in which no rational jury could
find that the defendant possessed the drugs for any reason
other than distribution, even though the only evidence pre-
sented at trial is the quantity, purity, and monetary value of
the drugs.2 At the opposite end are cases where the value and
quantity of drugs possessed by the defendant are such that no
reasonable jury could find an intent to distribute.3 Between
these extremes, however, lies “the jury’s province to deter-
2
See United States v. Silla, 555 F.2d 703, 706-07 (9th Cir. 1977) (hold-
ing that no rational jury could conclude there was no intent to distribute
where the defendants possessed 3,000 pounds of marijuana); see also
United States v. Short, 805 F.2d 335, 336-37 (8th Cir. 1986) (holding that
possession of the equivalent of 279 pounds of marijuana valued at
$279,000 dollars justified the district court’s refusal to provide a lesser
included instruction); United States v. Echeverri-Jaramillo, 777 F.2d 933,
935-36 (4th Cir. 1985) (holding that possession of more than thirty-five
pounds of cocaine valued at between $5 and $7 million ruled out a simple
possession jury instruction); United States v. Henley, 502 F.2d 585, 586
(5th Cir. 1974) (per curiam) (holding that possession of more than seven
tons of marijuana justified the district court’s refusal to provide a simple
possession instruction).
3
See Turner v. United States, 396 U.S. 398, 422-23 (1970) (concluding
that possession of 14.68 grams of cocaine mixed with sugar was insuffi-
cient to sustain a conviction for distribution, despite possession of heroin
that “proved he was dealing in drugs”); United States v. Latham, 874 F.2d
852, 862-63 (1st Cir. 1989) (holding that “an inference of intent to distrib-
ute [was] not warranted from the possession of one ounce of cocaine”).
UNITED STATES v. HERNANDEZ 1839
mine whether the evidence demonstrates simple possession or
possession with intent to distribute.” United States v. Lucien,
61 F.3d 366, 376 (5th Cir. 1995).
[8] In refusing to instruct the jury on simple possession the
district court reasoned that:
I find there’s absolutely no evidence that would
support the defense in this case that it was for simple
possession.
If the defendant had taken the stand or there was
some other evidence that this is a quantity that can
be used for personal consumption, then I would give
it.
But I find that it is sufficient for a jury to find
beyond a reasonable doubt that the defendant pos-
sessed with intent to distribute. There’s absolutely no
evidence, no evidence other than his simple posses-
sion, that it was for his personal consumption.
So I find that the evidence that the government
has offered, that is the quantity, and most impor-
tantly, the testimony of the expert about the value,
about that this is for distribution, that, in fact, is suf-
ficient not to give a lesser included instruction.
We disagree with the district court’s reasoning. We agree that
the government’s evidence was sufficient to convict Her-
nandez of possession of methamphetamine with intent to dis-
tribute. But that does not foreclose the possibility that a
rational jury could also have found Hernandez guilty of sim-
ple possession.
[9] True, Hernandez did not present affirmative evidence
that he possessed the methamphetamine for personal use. But
that is not Hernandez’s burden. It is the government’s burden
1840 UNITED STATES v. HERNANDEZ
to prove beyond a reasonable doubt that Hernandez had the
requisite intent to distribute. The government did present
expert witness testimony on the drug’s purity, quantity, and
dollar value,4 which were high for personal use, but the gov-
ernment did not produce testimony on whether Hernandez
personally had an intent to distribute the methamphetamine.
It would not be irrational if a jury had concluded that Her-
nandez was returning from a buying trip to Mexico, and his
intent was to stockpile his reserves of methamphetamine for
personal use, rather than distribution. Additionally, there was
no corroborating physical evidence. When Hernandez was
arrested the drugs were not individually cut or packaged for
sale; the government produced no evidence that Hernandez
had precursor chemicals, glassware, cutting agents, scales,
firearms or weapons, or other typical items associated with
drug trafficking. Even if it is more probable that a drug distri-
bution was intended by Hernandez, we cannot say that a ratio-
nal jury could not have concluded that Hernandez possessed
the methamphetamine for personal use. The government did
not show that the jury’s only option on the evidence was to
find intent to distribute beyond a reasonable doubt.
[10] We note, moreover, that a district court may not weigh
the evidence in determining whether to give a lesser included
offense instruction. The standard announced by the Supreme
Court is that regardless of the weight of the evidence, a defen-
dant is entitled to a lesser included offense instruction if the
evidence would allow a rational jury to convict him of the
lesser offense and acquit him of the greater. See Keeble, 412
4
The government’s expert testified that the street value of the metham-
phetamine was between $2,160 and $4,140. And according to defense
counsel, based on the government expert Amatore’s stated typical dosage
size, the quantity of the drugs was the equivalent of between forty-eight
and ninety-six doses. Although we have doubts as to the reliability of this
calculation, since it does not appear to take into account the purity of the
methamphetamine that Hernandez had, the government did not challenge
this estimate and so we assume that it is reasonable.
UNITED STATES v. HERNANDEZ 1841
U.S. at 208. That Hernandez did not affirmatively present evi-
dence on his intention to use the drugs for personal use is not
controlling. What matters is what a jury could have concluded
from the evidence presented. Given that the only affirmative
evidence the government presented was the methamphet-
amine itself and the expert testimony that the amount and
purity indicated an aim for distribution, and there was no
other physical evidence of drug trafficking, we conclude that
a rational jury could have found that Hernandez possessed the
methamphetamine for personal use. Because personal use of
the drugs was a rational possibility, it was within the jury’s
province to determine that Hernandez was guilty of only sim-
ple possession.
Comparison to other cases reinforces our conclusion. Her-
nandez’s case is dissimilar to Vaandering, where we held that
the district court properly refused to give a jury instruction on
the lesser included offense of simple possession where the
defendant possessed 167 grams of methamphetamine. See 50
F.3d at 703-04. Our decision there was supported by the evi-
dence that a co-defendant’s residence was a methamphet-
amine lab complete with precursor chemicals, glassware, and
scales, and there was testimony that this residence “was a
source of methamphetamine for the purpose of distribution.”
Id. at 703 Hernandez possessed more than 159 grams of a
mixture containing methamphetamine, an almost identical
amount to the defendant in Vaandering. Unlike the defendant
in Vaandering, however, here there was no other evidence of
drug distribution.
This case is similar to United States v. Trujillo, 390 F.3d
1267, 1273 (10th Cir. 2004), where the Tenth Circuit con-
cluded that the district court properly gave a lesser included
offense instruction. In Trujillo, the defendant was stopped for
speeding. Id. at 1269-70. During a K-9 sniff of his car, the
dog alerted to a box in the trunk containing 112.7 grams of
79% pure cocaine, which the government’s expert testified
was the equivalent of 448 doses and had a street value of
1842 UNITED STATES v. HERNANDEZ
$2,000 to $2,400. Id. at 1270. The court noted that “despite
the government’s insistence that the quantity alone was suffi-
cient to permit only one rational inference by the jury,” the
district court properly gave the lesser included offense
instruction. Id. at 1273.
Similarly, in United States v. Gibbs, 904 F.2d 52, 54-55, 59
(D.C. Cir. 1990), the District of Columbia Circuit held that it
was reversible error for the trial judge not to give the lesser
included offense instruction where five people were in posses-
sion of 15.5 grams of cocaine, $576 in cash, and several fire-
arms with ammunition. The court stated that, “this [was] not
a case in which the defendants were in possession of a quan-
tity of drugs so large as to defy a suggestion of personal use.”
Id. at 58. Because the government did not present any evi-
dence, or expert testimony, that five adult men could not con-
sume 15.5 grams of cocaine, the court declined to hold that
15.5 grams of cocaine was, per se, inconsistent with personal
use. Id.
[11] Like in Gibbs, here the government presented evi-
dence on the quantity, but unlike in Gibbs, Hernandez was not
found with any cash or firearms. Here, the government did not
present evidence that Hernandez could not have consumed the
methamphetamine personally. By declining to instruct the
jury on simple possession based on Hernandez’s possession,
without more evidence of distribution, of 159 grams of a mix-
ture containing methamphetamine, the district court “effec-
tively eliminate[d] the range of cases in which the jury
determines what the evidence shows.” Lucien, 61 F.3d at 377.
[12] In Vaandering we specifically left open the issue
“whether 167 grams of methamphetamine, without more, is a
sufficiently large quantity of drugs to preclude an instruction
for simple possession.” 50 F.3d at 704. We cannot say, here,
that the 159 grams of methamphetamine Hernandez possessed
was so great a quantity, that with this quantity standing alone,
without any other evidence, the district court properly refused
UNITED STATES v. HERNANDEZ 1843
to provide a simple possession instruction. This is not the case
of several tons of marijuana, see Henley, 502 F.2d at 586, or
several million dollars worth of cocaine. See Espinosa, 827
F.2d at 615. Rather, we conclude that this is a case where a
rational jury could have found Hernandez guilty of either sim-
ple possession or possession with intent to distribute. That
decision was properly a decision for the jury, not for the dis-
trict court, to make. Accordingly, we hold that the district
court abused its discretion by not providing a lesser included
instruction to the jury on simple possession.
B
It is not clear whether failure to provide a lesser included
jury instruction, in cases other than in the death penalty con-
text, may be considered a constitutional error.5 If it is constitu-
tional error, then it must be harmless beyond a reasonable
doubt. See United States v. Neder, 527 U.S. 1, 7 (1999). If it
is not constitutional error, then we would apply a harmless
error standard more deferential to the government, and less
protective of the defendant, as set forth in Kotteakos v. United
States, 328 U.S. 750 (1946). Under Kotteakos, the error is
reversible “if one cannot say, with fair assurance, . . . that the
judgment was not substantially swayed by the error.” Id. at
765. That is, if the “error itself had substantial influence” on
the judgment, then it is not harmless. Id. However, we need
not decide today whether the failure to give a lesser included
jury instruction is constitutional error. For even under the
more lenient standard of Kotteakos, the district court’s refusal
to instruct the jury on the lesser included offense of simple
possession was not harmless.
5
See Beck v. Alabama, 447 U.S. 625, 637-38 (1980), (holding that due
process was violated by the state’s capital punishment statute that pre-
vented the trial court from giving the jury the option of convicting on a
lesser-included, non-capital offense, where there was sufficient evidence
for such a jury instruction). But see Gilmore v. Taylor, 508 U.S. 333, 361-
62 (1993) (Blackmun, J., dissenting) (suggesting Beck is limited to capital
cases); Schad v. Arizona, 501 U.S. 624, 645-48 (1991) (same).
1844 UNITED STATES v. HERNANDEZ
[13] Hernandez’s jury was instructed only on possession
with intent to distribute. The government presented uncontro-
verted evidence at trial that Hernandez possessed metham-
phetamine. Faced with a defendant who was unequivocally
guilty of some possession crime, the jury had a choice
between convicting Hernandez of possession with intent to
distribute or acquitting him. It is not possible to say with con-
fidence that the jury chose the former option because the gov-
ernment met its burden. The jury may have decided that given
the overwhelming evidence against Hernandez, it did not
want to acquit him of that charge, and so chose the only other
option available to it—conviction of intent to distribute
methamphetamine. Eliminating the option of finding Her-
nandez guilty of simple possession from the jury’s province,
under the circumstances of this case, substantially influenced
the verdict and was not harmless error.
[14] The error of not giving the lesser included jury instruc-
tion on simple possession in this case was fatal to the convic-
tion of Hernandez for possession of methamphetamine with
intent to distribute it, and that conviction cannot stand. On the
other hand, the failure to give the lesser included offense
instruction did not affect in any way the conviction of Her-
nandez for importation of more than fifty grams of metham-
phetamine, and that conviction stands.
IV
Finally, we address Hernandez’s arguments attacking his
sentence and the sentencing safety valve provision, 18 U.S.C.
§ 3553(f).6 We review the district court’s interpretation of the
6
Both of Hernandez’s convictions carry a minimum sentence of ten
years. 18 U.S.C. § 3553(f), however, provides a statutory basis for relief
from the mandatory minimum sentences. If all of § 3553(f)’s requirements
are met, then “the court shall impose a sentence pursuant to guidelines
promulgated by the United States Sentencing Commission . . . without
regard to any statutory minimum sentence . . . .” 18 U.S.C. § 3553(f).
UNITED STATES v. HERNANDEZ 1845
Sentencing Guidelines de novo and the application of the Sen-
tencing Guidelines to the facts7 for abuse of discretion. See
United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.
2005).
Hernandez presents two primary arguments why the district
court’s sentence should be vacated. First, Hernandez contends
that because the sentencing guidelines are advisory after
Booker, a district court has discretion as to how and when it
determines § 3553(f) eligibility. Second, Hernandez argues
that because § 3553(f) contains mandatory language, it is
invalid after Booker.8 Hernandez’s Booker-based challenges
are foreclosed by recent Ninth Circuit opinions in United
States v. Hernandez-Castro, ___ F.3d ___, 2007 WL 79532,
at *1 (9th Cir. Jan. 12, 2007), where we held that § 3553(f)(1)
was not “rendered advisory by Booker,” and United States v.
Cardenas-Juarez, 469 F.3d 1331, 1334-35 (9th Cir. 2006),
where we held that despite its mandatory language, 18 U.S.C.
§ 3553(f) survives Booker, and if triggered requires district
courts to impose sentences according to the advisory Sentenc-
ing Guidelines. We follow our holdings in Hernandez-Castro
and Cardenas-Juarez, and Hernandez’s claims fail.
To be eligible for § 3553(f) relief: (1) a defendant must not have more
than one criminal history point; (2) he must not have used violence or pos-
sessed a dangerous weapon in connection with his offense; (3) the offense
must not have resulted in death or serious bodily injury to a person; (4)
he must not have been a leader in the offense or engaged in a continuing
criminal enterprise; and (5) he must have truthfully provided to the Gov-
ernment all information and evidence that he has concerning the offense.
18 U.S.C. § 3553(f).
7
The parties do not dispute the district court’s factual findings at sen-
tencing.
8
In § 3553(f), the word “shall” appears: “the court shall impose a sen-
tence pursuant to guidelines promulgated by the United States Sentencing
Commission.” Id. (emphasis added).
1846 UNITED STATES v. HERNANDEZ
V
In conclusion, we affirm Hernandez’s conviction for impor-
tation of more than fifty grams of methamphetamine, and we
affirm his sentence of 120 months, which was mandatory for
that conviction. Conversely, we reverse Hernandez’s convic-
tion for possession of methamphetamine with intent to distrib-
ute, and we remand for further proceedings consistent with
this opinion.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.