United States v. Jose Hernandez ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50258
Plaintiff-Appellee, D.C. No.
3:18-cr-03424-LAB-3
v.
JOSE POLICARIPIO HERNANDEZ, AKA MEMORANDUM*
Chapo,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-50259
Plaintiff-Appellee, D.C. No.
3:18-cr-04217-LAB-2
v.
JOSE POLICARIPIO HERNANDEZ, AKA
Chapo,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 3
Submitted December 10, 2020**
Pasadena, California
Before: WATFORD, THAPAR,*** and COLLINS, Circuit Judges.
Jose Hernandez challenges his conviction, following a jury trial, for
possession of a firearm in furtherance of a crime of violence. 18 U.S.C. § 924(c).
He also challenges his sentence of 360 months, which was imposed in a
consolidated sentencing hearing for both the case including the § 924(c) conviction
and a separate case in which Hernandez pleaded guilty to a drug conspiracy
charge. We affirm both the conviction and the sentence.
1. The district court did not err in instructing the jury that attempted Hobbs
Act robbery is a crime of violence. This court held earlier this year that attempted
Hobbs Act robbery is a crime of violence under the elements clause,
§ 924(c)(3)(A). United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020).
We need not decide whether a conviction for attempted Hobbs Act robbery under a
Pinkerton theory of liability would alter this conclusion because Hernandez has no
plausible claim he was convicted under a Pinkerton theory. Although Pinkerton
had been mentioned in the Hobbs Act charge in the indictment, the government did
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Amul R. Thapar, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Page 3 of 3
not argue this theory of liability at trial, and the district court did not instruct the
jury on a Pinkerton theory.
2. Though the district court erred in declining to group Hernandez’s
convictions for sentencing, see U.S.S.G. § 3D1.1, that error was harmless. See
United States v. Perez, 962 F.3d 420, 450–51 (9th Cir. 2020). The parties agree
the district court would have calculated the same offense level and guidelines
range had it grouped the cases and followed the procedures provided in Sentencing
Guidelines §§ 3D1.1–1.5 and § 5G1.2. Hernandez’s theory that the district court
might have granted him a downward variance from the guidelines range had it
realized that running the sentences for the other counts concurrently was
mandatory is too speculative to warrant a remand. Grouping the cases would have
resulted in the same offense level and guidelines range, and the district court stated
that a decision to group the cases “would not make a difference” in the sentence
imposed. We therefore conclude there is no evidence that correction of the error
would result in a shorter sentence for the defendant and the error was harmless.
See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
AFFIRMED.