United States v. Juan Melgar-Hernandez , 832 F.3d 261 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2016 Decided August 9, 2016
No. 13-3110
UNITED STATES OF AMERICA,
APPELLEE
v.
JUAN MELGAR-HERNANDEZ, ALSO KNOWN AS TRISTE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00256-RMC)
Carmen D. Hernandez, appointed by the court, argued
the cause and filed the briefs for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman and Chrisellen R. Kolb, Assistant U.S. Attorneys.
Before: BROWN and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: Appellant Juan Melgar-
Hernandez pleaded guilty to a conspiracy charge under the
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Racketeer Influenced and Corrupt Organizations Act. On
appeal, Hernandez raises several challenges to his conviction
and sentence. We reject the bulk of those challenges, except
that we remand the case to the district court for resentencing
in light of a retroactive amendment to the Sentencing
Guidelines.
I.
On November 1, 2011, a federal grand jury indicted
Hernandez, along with sixteen other alleged members of the
MS-13 gang in the Washington, D.C., area, on a charge of
conspiracy to conduct and participate in an enterprise through
a pattern of racketeering activity in violation of the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1962(d). MS-13 is one of the largest gangs in the United
States, with over 10,000 members in at least twenty states,
Mexico, and several Central American countries. Gang
members regularly engage in criminal activity, including
assaults, drug crimes, theft, and obstructing justice. The gang
is organized into “cliques,” smaller groups operating in
specific cities or regions.
In the D.C. area, certain cliques came together to create
an organization called “La Hermandad,” whose purpose was
to allow clique leaders “to discuss gang rules and gang
business, to resolve problems or issues involving the cliques,
and to unite gang members.” Indictment at 5 (J.A. 35). The
indictment alleged that Hernandez was a leader of MS-13’s
“Las Uniones” clique between late 2009 and early 2010 and,
in that capacity, helped form the La Hermandad organization.
See id. at 5, 15 (J.A. 35, 45).
On March 8, 2013, Hernandez pleaded guilty to the
RICO conspiracy charge pursuant to a plea agreement with
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the government. Under the statute, in order to demonstrate a
“pattern of racketeering activity,” the government must
establish “at least two acts of racketeering activity” within a
ten-year period. 18 U.S.C. § 1961(5). “Racketeering
activity” includes, as relevant here, “any act or threat
involving murder . . . which is chargeable under state law and
punishable by imprisonment for more than one year,” as well
as certain offenses involving controlled substances. Id.
§ 1961(1). As part of his plea agreement, Hernandez admitted
that he had committed two predicate acts of racketeering
activity: (i) conspiracy to murder in violation of the common
law of Maryland and Maryland Criminal Code §§ 1-202 and
2-201, and (ii) conspiracy to distribute controlled dangerous
substances in violation of 21 U.S.C. § 846.
In a written proffer submitted in support of his guilty
plea, Hernandez stipulated to the underlying facts justifying
his conviction. He acknowledged having been “one of the
leaders of Hermandad” and having distributed between 2 and
3½ kilograms of cocaine between November 2009 and March
2010. Gov’t Proffer of Proof in Supp. of Def.’s Guilty Plea
(Mar. 8, 2013) (S.A. 10, 16). With respect to the predicate act
of conspiracy to commit murder, Hernandez admitted he had
a conversation in January 2010 with an unidentified man who
told Hernandez that the man’s father had been killed in El
Salvador. Hernandez responded that “[w]e can arrange for
someone to kill the son of a bitch [i.e. the perpetrator] from
here . . . without you having to go to El Salvador.” Gov’t
Resp. to Def.’s Sentencing Mem., Ex. 3 (Dec. 5, 2013) (J.A.
148). He also told the man that he would send him a phone
with which to communicate with an MS-13 leader in El
Salvador about the proposed murder. See Gov’t Proffer (S.A.
15). Several months later, Hernandez had a phone
conversation with men in El Salvador during which one of the
men asked Hernandez “who they were supposed to ‘hit.’” Id.
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(S.A. 16). Hernandez and the men discussed “the necessity of
investigating the murder properly, and then sending two
recruits (persons not yet jumped in to MS-13) to do the job”
of killing the person in El Salvador. Id. There is no
indication that the murder ever took place.
In light of those admissions by Hernandez, the
government recommended a sentencing reduction based on
his acceptance of responsibility. On December 9, 2013, the
district court sentenced Hernandez to 156 months of
imprisonment to be followed by three years of supervised
release.
II.
We first consider Hernandez’s challenge to the factual
basis for his guilty plea. Rule 11 of the Federal Rules of
Criminal Procedure requires that, “before entering judgment
on a guilty plea, the court must determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). The
requirement aims to “protect a defendant who is in the
position of pleading voluntarily with an understanding of the
nature of the charge but without realizing that his conduct
does not actually fall within the charge.” McCarthy v. United
States, 394 U.S. 459, 467 (1969) (internal quotation marks
omitted). Hernandez argues that there was an insufficient
basis for his guilty plea because Maryland law does not
criminalize conspiracy to commit murder beyond the state’s
borders (in El Salvador). We are unpersuaded.
In Maryland, conspiracy remains a common law crime.
See Mitchell v. State, 767 A.2d 844, 852 (Md. 2001). Under
state decisions, the “essence of a criminal conspiracy is an
unlawful agreement” between “two or more persons to
accomplish some unlawful purpose, or to accomplish a lawful
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purpose by unlawful means.” Townes v. State, 548 A.2d 832,
834 (Md. 1988). And importantly for our purposes, “the
crime is complete when the unlawful agreement is reached,
and no overt act in furtherance of the agreement need be
shown.” Id. Accordingly, in the case of conspiracy to
commit murder, “once the agreement to murder has been
made, the crime is complete without any further action.”
Grandison v. State, 506 A.2d 580, 617 (Md. 1986); accord
Khalifa v. State, 855 A.2d 1175 (Md. 2004).
Here, it is undisputed that Hernandez entered into an
agreement to commit murder during the phone calls with the
unidentified man whose father had been killed in El Salvador.
It is also undisputed that Hernandez participated in those
conversations while in Maryland. See Gov’t Proffer (S.A. 15-
16). Under Maryland law, then, the crime of conspiracy was
“complete” at the time Hernandez made the phone calls.
Grandison, 506 A.2d at 617. The unlawful agreement had
been reached. Nothing more was required.
Hernandez challenges that conclusion on the ground that
an agreement to commit murder outside the state’s borders is
not a crime punishable under Maryland law. His argument
relies on the concept of territorial jurisdiction, i.e., the notion
that “an offense against the laws of the state of Maryland is
punishable only when committed within its territory.” West v.
State, 797 A.2d 1278, 1282 (Md. 2002) (internal quotation
marks omitted). Maryland adheres to the common law rule
concerning territorial jurisdiction when some elements of a
crime occur beyond state borders. Under that rule, Maryland
courts have jurisdiction if the “essential element[]” of the
offense takes place in Maryland. State v. Butler, 724 A.2d
657, 662 (Md. 1999).
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In this case, because Maryland does not require proof of
an overt act to establish a conspiracy, the “essential
element[]” (indeed the only element) of the crime—the
agreement to commit murder—took place in the state of
Maryland. Hernandez’s conduct thus violated Maryland law
under applicable principles of territorial jurisdiction,
notwithstanding the extraterritorial aim of the conspiracy. See
1 Wayne R. LaFave, Substantive Criminal Law § 4.4 (2d ed.
2015) (“[W]hen no overt act is required for the commission of
conspiracy, it has been held that an agreement in state A to
commit a crime in state B, is a conspiracy with its situs in
state A.”).
It is immaterial that, under principles of territorial
jurisdiction, the object of Hernandez’s conspiracy—murder in
El Salvador—might not itself have been punishable in
Maryland had it been carried out. Under Maryland law, the
crime of conspiracy requires only an agreement “to
accomplish some unlawful purpose.” Townes, 548 A.2d at
834 (emphasis added). There is no requirement that the
unlawful purpose itself be a crime punishable in Maryland.
See Lanasa v. State, 109 Md. 602 (1909). In this case, it is
readily apparent that the object of Hernandez’s conspiracy—
murder—is unlawful: it is undisputed that murder is illegal in
both Maryland and El Salvador. See Md. Crim. Code § 2-
201; Código Penal [Penal Code] art. 128 (El Sal.).
Hernandez’s agreement to commit that act therefore
constitutes an agreement “to accomplish some unlawful
purpose” for purposes of the crime of conspiracy under
Maryland law. Townes, 548 A.2d at 834.
We have no need to consider whether we would reach a
different conclusion if the intended aim of the conspiracy
were unlawful in Maryland but not in El Salvador, or
unlawful in El Salvador but not in Maryland. See, e.g.,
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People v. Morante, 975 P.2d 1071, 1086 (Cal. 1999). We
conclude here only that, when the object of an extraterritorial
conspiracy is unlawful in both Maryland and the jurisdiction
in which it is to be carried out, entering into an agreement
while in Maryland to commit that act violates Maryland law.
Consequently, Hernandez’s guilty plea satisfied the
requirements of Rule 11.
In light of our conclusion that the district court
committed no error in accepting the factual basis for
Hernandez’s guilty plea, we need not resolve the parties’
dispute about whether Hernandez preserved his factual-basis
objection in the district court. Failure to raise an objection in
district court ordinarily would result in the application of a
more onerous standard of review from the defendant’s
perspective—i.e., plain-error review rather than harmless-
error review. See United States v. Moore, 703 F.3d 562, 569
(D.C. Cir. 2012). Because we find that the district court
committed no error in the first place, we need not decide
whether to apply plain-error or harmless-error review. In
either event, we would affirm.
III.
We next consider Hernandez’s challenges to his sentence.
The district court calculated Hernandez’s sentencing range
under the Sentencing Guidelines to be 151 to 188 months.
The court then sentenced him to 156 months of imprisonment
to be followed by three years of supervised release.
Hernandez contends that the district court committed
procedural error at sentencing and that the sentence is
substantively unreasonable. We reject both arguments.
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A.
Hernandez argues that the district court committed
procedural error by failing to address the mitigating factors he
presented at sentencing. Because Hernandez did not object to
this alleged error in the district court, we review his claim for
plain error. In re Sealed Case, 527 F.3d 188, 91-92 (D.C. Cir.
2008). To prevail under that standard, Hernandez must
establish that, “during the plea colloquy, (1) the District Court
erred, (2) the error was clear or obvious, (3) the error affected
his substantial rights, and (4) the error ‘seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.’” Moore, 703 F.3d at 569 (quoting United States
v. Olano, 507 U.S. 725, 732-36 (1993) (alteration omitted)).
In his sentencing memorandum and at the sentencing
hearing, Hernandez presented a number of considerations
which, he contended, warranted a below-Guidelines sentence.
He argued, among other things, that the murder “conspiracy
was never actually consummated with the murder of anyone,”
Def.’s Sentencing Mem. at 7 (Nov. 25, 2013) (J.A. 109), and
that the drug-distribution conspiracy did not involve “the
trafficking of large wholesale quantities” of drugs, id. at 13
(J.A. 115). He also emphasized certain personal
characteristics, such as his young age when joining MS-13
and his ostensibly low risk of recidivism. Id. at 16-17 (J.A.
118-19). Hernandez argues that the district court failed to
fulfill its obligation under 18 U.S.C. § 3553(a) to consider
“the nature and circumstances of the offense and the history
and characteristics of the defendant” in determining his
sentence.
Our review calls for us to determine whether the district
court “adequately explain[ed] the chosen sentence,” United
States v. Locke, 664 F.3d 353, 355 (D.C. Cir. 2011) (internal
9
quotation omitted), and “considered the necessary factors”
under 18 U.S.C. § 3553(a), United States v. Wilson, 605 F.3d
985, 1034 (D.C. Cir. 2010). It is clear from the record that the
district court addressed the section 3553(a) factors at
sentencing and took into account “the nature and
circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a).
The district judge observed that Hernandez’s statements
at sentencing and the fact of his guilty plea indicated “that he
has developed respect” for the law. Sentencing Hr’g Tr. at 36
(J.A. 186). She then specifically addressed the personal
characteristics Hernandez had highlighted, noting that he “had
alternatives,” had been “distracted from [the] purpose” for
which he had come to the United States and “distracted from
his father,” and had ended up “toss[ing those goals] away in
exchange for the gang.” Id. at 38 (J.A. 188). Additionally,
the district judge observed that the predicate acts admitted by
Hernandez “are all serious offenses and quite injurious to the
community.” Id. at 35 (J.A. 185). She further emphasized the
need to deter Hernandez from “future criminal conduct until
such time as we’re confident that he won’t engage [in] any
more [crimes] and to signal to others that his conduct has
consequences.” Id. at 37 (J.A. 187). Ultimately, the
mitigating considerations persuaded the district judge to
impose a 156-month sentence, as opposed to a “higher
sentence” closer to 180 months. Id. at 39-40 (J.A. 189-90).
In light of those statements, we reject Hernandez’s
argument that the district court committed any procedural
error—much less plain error—at sentencing. The court
adequately explained the basis for the chosen sentence, and,
in such instances, we generally presume that the judge
adequately considered the relevant arguments. See Locke,
664 F.3d at 358-59. Here, the district judge not only
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considered the mitigating circumstances Hernandez raised,
but she also imposed a lower sentence in part because of
them. The district court was not required under section
3553(a) “to address expressly each and every argument
advanced by the defendant.” Id. at 357; see United States v.
Simpson, 430 F.3d 1177, 1186 (D.C. Cir. 2005).
B.
In addition to his procedural challenge, Hernandez also
contends that the sentence imposed by the district court was
substantively unreasonable. We review the “substantive
reasonableness of a sentence under the abuse of discretion
standard even when no objection was raised in the district
court.” Wilson, 605 F.3d at 1034. In doing so, we start from
the understanding that, in this circuit, “a sentence that is
within the Guidelines range is entitled to a presumption of
reasonableness on appeal.” United States v. Kaufman, 791
F.3d 86, 89 (D.C. Cir. 2015). Hernandez’s 156-month
sentence fell within the applicable Guidelines range and thus
fits into that category.
In arguing that his sentence is substantively
unreasonable, Hernandez invokes the same mitigating factors
he raised at sentencing, including, for example, his status as a
first-time offender, his lack of direct involvement in violence,
his young age when joining MS-13, and his dedication to his
family. Several of those considerations, e.g., his status as a
first-time offender, are already reflected in the applicable
Guidelines range. Moreover, as explained, the district court
considered the other personal characteristics and balanced
them against the seriousness of the offenses and the need for
deterrence. We “defer to the district court’s judgment when,”
as here, “it has presented a ‘reasoned and reasonable decision
that the § 3553(a) factors, on the whole, justified the
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sentence.’” United States v. Ventura, 650 F.3d 746, 751
(D.C. Cir. 2011) (quoting Gall v. United States, 552 U.S. 38,
59-60 (2007)).
Hernandez also contends that his sentence is
unreasonable because it results in unwarranted sentencing
disparities between Hernandez and other members of MS-13
who were indicted at the same time, several of whom directly
participated in violent activity (unlike Hernandez) but
received shorter sentences. Such disparities, however, stem
from the varying Guidelines ranges applicable to defendants
charged with and convicted of different offenses.
Hernandez’s Guidelines range reflected personal factors such
as his leadership role in MS-13 and history of involvement
with the gang. We thus reject his argument that the sentence
imposed by the district court was substantively unreasonable.
IV.
Finally, Hernandez argues that the case should be
remanded to the district court for resentencing in light of a
retroactive amendment to section 2D1.1 of the Guidelines.
We agree.
Section 2D1.1 provides the framework for calculating the
Guidelines range for numerous drug offenses. Hernandez’s
offense level (and thus his Guidelines range) was based in
part on that section because conspiracy to distribute drugs was
one of the two predicate acts used to establish his RICO
conspiracy conviction. Hernandez seeks to benefit from
Amendment 782, promulgated in 2014, which generally
reduced base offense levels under section 2D1.1 by two
levels. See U.S.S.G. Supp. to App’x C, Amd. 782 (effective
Nov. 1, 2014). Although the amendment came after
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Hernandez’s sentencing, the Sentencing Commission made
the amendment retroactive. See U.S.S.G. § 1B1.10(d).
The government argues that there nonetheless is no need
to remand for resentencing in this case. The government
relies on a Guidelines provision establishing that a retroactive
Guidelines amendment warrants a “reduction in the
defendant’s term of imprisonment” only if the amendment has
“the effect of lowering the defendant’s applicable guidelines
range.” U.S.S.G. § 1B1.10(a)(2)(B). Here, the government
explains, Amendment 782 does not have the direct effect of
lowering Hernandez’s sentencing range. Although the
government is correct that Amendment 782 would not directly
lower Hernandez’s offense level (and hence his sentencing
range), we still conclude that a remand for resentencing is
warranted.
First, the reason Amendment 782 does not directly affect
Hernandez’s sentencing range relates to the Guidelines’
grouping rules for multiple offenses. When a defendant
commits multiple offenses, the most serious offense provides
the starting point for determining the Guidelines range. See
U.S.S.G. § 3D1.4. That starting point is then adjusted to
reflect the addition of other offenses, based on their
seriousness. See id. Hernandez’s adjusted offense level for
conspiracy to commit murder (36) exceeded his adjusted
offense level for conspiracy to distribute controlled dangerous
substances (31). The former accordingly served as the
starting point for calculating his final offense level. The
grouping rules called for adding one point for the drug
conspiracy. See id. The resulting combined offense level
(37) was then reduced by three levels for Hernandez’s
acceptance of responsibility, giving rise to a final offense
level of 34. Based on Hernandez’s status as a first-time
13
offender, that offense level resulted in a Guidelines range of
151 to 188 months of imprisonment.
Applying Amendment 782 to Hernandez’s Guidelines
calculation would not affect that range. The amendment
would lower Hernandez’s adjusted offense level for the drug
conspiracy by two levels to 29. But the adjusted offense level
for conspiracy to commit murder (36) would still serve as the
starting point for his sentence. And the grouping rules would
still add one point to account for the drug conspiracy,
resulting in the same combined offense level (37) and the
same final offense level (34) after the reduction for
acceptance of responsibility. See id. Hernandez’s Guidelines
range would thus remain unchanged even if the amendment
were applied. Ordinarily, as explained, that result would
prevent us from remanding the case for resentencing. See id.
§ 1B1.10(a)(2)(B).
We confront a unique situation here, however.
Hernandez claims that the district court incorrectly applied a
three-level upward adjustment for his leadership role in the
drug conspiracy, resulting in an erroneous adjusted offense
level of 31. He did not raise that alleged error in the district
court, because, at the time, it would have had no effect on his
final offense level (even if his challenge was successful).
Specifically, without the three-level leadership adjustment,
Hernandez’s adjusted offense level for the drug conspiracy
would have been 28 instead of 31. The starting point for his
Guidelines range would still have been his adjusted offense
level for the murder conspiracy (36). Under the grouping
rules, factoring in the drug conspiracy at an adjusted offense
level of 28 would have had the same effect: one point would
have been added to the starting level (36), resulting in the
same combined offense level of 37. See id. § 3D1.4.
Hernandez therefore had no reason to contest whether the
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adjusted offense level for the drug conspiracy should have
been 28 or 31.
With the promulgation of Amendment 782, however, the
lower adjusted offense level for the drug conspiracy makes a
difference. The amendment reduces Hernandez’s base
offense level for the drug conspiracy from 28 to 26. Without
the three-level leadership bump that Hernandez now contests,
his adjusted offense level would remain 26. As before, the
adjusted offense level for the murder conspiracy (36) would
continue to serve as the starting point. But, unlike before, the
combined offense level in that circumstance would be 36
(instead of 37). That is because, under the grouping rules, no
points are added to the adjusted offense level for the primary
offense when the difference between the two offense levels
equals nine or more points. See id. After the reduction for
acceptance of responsibility, Hernandez’s final offense level
would be 33 (instead of 34), with a lower sentencing range of
135 to 168 months.
In light of that potential effect, we conclude that
resentencing is appropriate to enable Hernandez to challenge
the application of the leadership adjustment in calculating his
Guidelines range. Our decisions support giving a defendant
the opportunity to make sentencing arguments in comparable
circumstances. In United States v. Whren, we held that,
“upon a resentencing occasioned by a remand . . . the district
court may consider . . . such new arguments or new facts as
are made newly relevant by the court of appeals’ decision.”
111 F.3d 956, 960 (D.C. Cir. 1997). Subsequently, in United
States v. McCoy, 313 F.3d 561 (D.C. Cir. 2002) (en banc), we
construed Rule 32 of the Federal Rules of Criminal
Procedure, which provides that, at sentencing, the court “may,
for good cause, allow a party to make a new objection at any
time before sentence is imposed.” We held that district courts
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should consider at resentencing whether previously-unmade
arguments fell within the “good cause” exception when the
arguments were only contingently relevant before. We
explained that parties at sentencing lack “reason to raise a
doubly contingent objection for which the likelihood of any
significance is remote.” Id. at 566 (internal quotation marks
omitted). Additionally, we observed, an “absolute
requirement to raise all objections (regardless of the degree of
relevance) is likely both to waste judicial resources and work
injustice.” Id.
While those decisions involved sentencing arguments
made relevant by an intervening judicial decision, as opposed
to a retroactive Guidelines amendment, the concerns
underlying those decisions lead us to conclude that Hernandez
similarly should be permitted to argue that the leadership
adjustment was erroneously applied in calculating his drug
conspiracy offense level. At the time of Hernandez’s
sentencing, the likelihood of that argument’s having any
significance was “remote.” Id. The argument, however, was
made “newly relevant” by Amendment 782. Whren, 111 F.3d
at 960. In those circumstances, remand for resentencing is
warranted. To rule otherwise would stand in considerable
tension with the Sentencing Commission’s instruction that
Amendment 782 is to be applied retroactively. It would also
engender an incentive for defense lawyers to raise highly
contingent objections in the district court, which would result
in a waste of judicial resources in the long run.
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* * * * *
For the foregoing reasons, we affirm Hernandez’s
conviction but we vacate his sentence and remand the case to
the district court for resentencing.
So ordered.