United States v. Daniel Hernandez , 470 F. App'x 333 ( 2012 )

Case: 11-50580 Document: 00511841930 Page: 1 Date Filed: 05/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 2, 2012
No. 11-50580
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL GELAICO HERNANDEZ, also known as Daniel Hernandez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:10-CR-242-3
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Daniel Gelaico Hernandez appeals his guilty plea
convictions for one count of conspiracy to distribute at least 500 grams of
methamphetamine and 5 kilograms of cocaine and one count of conspiracy to
commit money laundering. He also appeals the district court’s imposition of a
$2,000,000 forfeiture money judgment for which he was jointly and severally
liable with co-conspirators.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-50580 Document: 00511841930 Page: 2 Date Filed: 05/02/2012
No. 11-50580
Regarding his conviction, Hernandez contends that the district court erred
by failing to advise him during his guilty plea hearing of the possible forfeiture
applicable in his case. See FED. R. CRIM. P. 11(b)(1)(J). Plain error review
applies to this issue because Hernandez did not object on this ground in the
district court. See United States v. Vonn, 535 U.S. 55, 59 (2002). To show plain
error, the appellant must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
If the appellant makes such a showing, we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id. To demonstrate an effect on his substantial rights
based on the district court’s failure to comply with Rule 11(b)(1)(J), Hernandez
“must show a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The record reflects that Hernandez was aware of the possible forfeiture
before he pleaded guilty. His indictment, which he admitted reviewing with his
attorney before his rearraignment, contained a notice of the government’s
demand for the forfeiture. The forfeiture was also brought to light by his
presentence report and two motions by the government after his rearraignment,
and Hernandez never disputed the forfeiture. Hernandez’s assertions that he
“may have believed” the government would not pursue the forfeiture and that
the possibility of a $2,000,000 money judgment “may have been a concern” are
insufficient to satisfy his burden under plain error review. See Dominguez
Benitez, 542 U.S. at 83.
Regarding forfeiture, Hernandez contends that the district court erred by
issuing a forfeiture judgment against him, and, alternatively, that there is no
evidence to support a forfeiture amount exceeding the $234,840 for which he was
personally accountable in the conspiracy. As these challenges are raised for the
first time on appeal, plain error review applies to them as well. See United
States v. Gasanova, 332 F.3d 297, 300 (5th Cir. 2003); United States v. Badeaux,
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Case: 11-50580 Document: 00511841930 Page: 3 Date Filed: 05/02/2012
No. 11-50580
42 F.3d 245, 246 (5th Cir. 1994). The district court did not commit error, plain
or otherwise, in imposing a forfeiture judgment against Hernandez. See 18
U.S.C. § 982(a)(1); 21 U.S.C. § 853(a)(1), (2).
Additionally, Hernandez fails to cite any authority for his contention that
the forfeiture against him should have been limited to the amount corresponding
to his personal involvement in the conspiracy and has thus waived the issue.
See United States v. Olguin, 643 F.3d 384, 399 (5th Cir.), cert. denied, 132 S. Ct.
432 (2011), and cert. denied, 132 S. Ct. 439 (2011). In any event, his bare
argument is insufficient to satisfy his burden under plain error review of
showing that the district court committed clear or obvious error in its application
of § 853(a)(1) and (2) and § 982(a)(1). See Olguin, 643 F.3d at 399; United States
v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007) (“An error is considered plain, or
obvious, only if the error is clear under existing law.”).
AFFIRMED.
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