United States v. Jose Hernandez ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-56675
Plaintiff-Appellee, D.C. Nos.
3:16-cv-01452-H
v. 3:10-cr-03173-H-3
JOSE LUIS HERNANDEZ, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-55385
Plaintiff-Appellee, D.C. Nos.
3:16-cv-01537-H
v. 3:10-cr-03173-H-1
JULIAN MONDRAGON-HERNANDEZ,
AKA David Rojas,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted August 14, 2020**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WARDLAW and CLIFTON, Circuit Judges, and CHOE-GROVES,***
Judge.
Jose Luis Hernandez and Julian Mondragon-Hernandez (collectively, the
“Defendants”) were convicted by jury trial of conspiracy to commit Hobbs Act
robbery, conspiracy to possess cocaine with intent to distribute, and firearms
offenses under 18 U.S.C. § 924(c). Defendants now appeal the denials of their
28 U.S.C. § 2255 motions to vacate, set aside or correct their convictions arising
under § 924(c), for which they were each sentenced to a 60-month term of
imprisonment. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
1. The jury was instructed that to convict on the firearms charge under
§ 924(c) it had to find beyond a reasonable doubt that Defendants possessed a
firearm in furtherance of the drug conspiracy or the conspiracy to commit Hobbs
Act Robbery. The jury verdict form for the § 924(c) conviction did not specify
which predicate offense the jury relied upon. In light of the Supreme Court’s
decision in United States v. Davis, 139 S. Ct. 2319 (2019), which held that
§ 924(c)(3)(B) is unconstitutionally vague, the parties now agree that the
instruction was erroneous because conspiracy to commit Hobbs Act robbery no
longer qualifies as a crime of violence and thus is not a predicate offense for the
§ 924(c) conviction.
***
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
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2. We need not reach the question of whether the Government waived its
argument that this error was harmless because we would nonetheless excuse it. All
three Rodriguez factors—“(1) the length and complexity of the record, (2) whether
the harmlessness of an error is certain or debatable, and (3) the futility and
costliness of reversal and further litigation”—weigh in favor of excusing any
possible waiver by the Government. United States v. Rodriguez, 880 F.3d 1151,
1164 (9th Cir. 2018). For the first factor, the record in this case, which spans just
over a year, is not sufficiently lengthy or complex so as to “render the
harmlessness inquiry a burdensome one.” Id. As for the second and third, the
record demonstrates that the instructional error was harmless, so reversal would
lead only to costly, and ultimately futile, further litigation.
3. Because the error did not have a “substantial and injurious effect or
influence in determining the jury’s verdict,” it was harmless. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal citation omitted); Pulido v.
Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). Defendants’ argument that
Stromberg v. California, 283 U.S. 359 (1931), mandates reversal is foreclosed
because “drawing a distinction between alternative-theory [Stromberg] error and
the instructional errors in Neder, Roy, Pope, and Rose would be patently illogical.”
Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008).
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As the trial record makes clear, Defendants’ § 924(c) convictions are
independently supported by the drug trafficking conspiracy offense, and
Defendants committed two different predicate offenses while possessing a
firearm—a Hobbs Act conspiracy that was inextricably intertwined with a
conspiracy to possess cocaine with intent to distribute.
AFFIRMED.
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