UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4558
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:07-cr-00065-LMB)
Argued: March 18, 2008 Decided: May 6, 2008
Before WILKINSON and MOTZ, Circuit Judges, and William L.
OSTEEN, Jr., United States District Judge for the Middle District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Christopher Robert Kennedy Leibig, ZWERLING, LEIBIG &
MOSELEY, P.C., Alexandria, Virginia, for Appellant. Jennifer Lee,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aaron Hernandez appeals his order of conviction and sentence
for driving while intoxicated (“DWI”) on the George Washington
Memorial Parkway, in violation of 36 C.F.R. § 4.23(a)(1).
Hernandez argues that he was entitled to a jury trial on that
charge. This contention, however, is foreclosed by the Supreme
Court’s holdings in Blanton v. City of North Las Vegas, 489 U.S.
538, 541 (1989) and United States v. Nachtigal, 507 U.S. 1, 6
(1993), which make clear that there is no right to a jury trial for
petty offenses, and specifically, no right to a jury trial for
alleged violations of 36 C.F.R. § 4.23(a)(1). Therefore, we affirm
the judgment of the district court.
I.
Around 1 a.m. on October 1, 2006, Hernandez was traveling
northbound on the George Washington Memorial Parkway in his Jaguar
when United States Park Police Officer Evan McKinney clocked his
speed at approximately seventy-five miles per hour in a properly
posted fifty mile-per-hour zone. After observing Hernandez cross
the center line twice, Officer McKinney initiated a traffic stop.
As he approached Hernandez’s car, Officer McKinney detected the
smell of alcohol coming from Hernandez. Officer McKinney then
administered standard field sobriety tests, which Hernandez did not
complete successfully. Hernandez was arrested, and a chemical
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analysis of his blood sample confirmed that his blood alcohol level
was .13g/100mL.
On November 16, 2006, Hernandez was charged with various
driving related offenses, including possession of a Schedule IV
controlled substance in violation of 21 U.S.C. § 844 (amended by
the superceding criminal information as a violation of 36 C.F.R.
§ 2.35(b)(2)) (count one); and DWI in violation of 36 C.F.R.
§ 4.23(a)(2) (count two). The DWI offense, as charged under 36
C.F.R. § 4.23(a)(2), carries a maximum penalty of six months’
incarceration, a $5000.00 fine, and a $10.00 special assessment.
36 C.F.R. §§ 1.3(a); 18 U.S.C. §§ 3571(b)(6) and (e) (2000). As an
alternative to imprisonment for a violation of 36 C.F.R.
§ 4.23(a)(1), the sentencing court may impose a term of probation
not to exceed five years. 18 U.S.C. § 3561(a)(3). The sentencing
court has discretion to attach various conditions to the
probationary term. Id. § 3563(b).
Hernandez filed a motion for jury trial on the DWI offense.
He argued that because this would be his third DWI conviction in
five years and could potentially lead to penalties beyond the
maximum six months’ incarceration under the C.F.R., the charge was
serious enough to warrant a Sixth Amendment right to jury trial.
Relying upon the Supreme Court’s decisions in Blanton and
Nachtigal, the district court denied Hernandez’s motion.
Specifically, the district court stated that because DWI under 36
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C.F.R. § 4.23(a)(1) carries a maximum term of imprisonment of six
months, it is presumptively a “petty” offense which does not carry
a right to trial by jury under the Sixth Amendment. Moreover, the
district court rejected Hernandez’s argument that additional
penalties under either 36 C.F.R. § 4.23(a)(1) or under Virginia
recidivism statutes transformed DWI into a “serious” offense for
purposes of the Sixth Amendment.
On March 14, 2007, Hernandez entered a guilty plea to counts
one and two with a reservation of his right to appeal the district
court’s denial of his motion for a jury trial on the DWI offense.
For count one, Hernandez was sentenced to two years’ supervised
probation with the special condition that he serve ten days’
incarceration, a $5000.00 fine, and a $10.00 special assessment.
For count two, the DWI, Hernandez was sentenced to three years’
supervised probation with the special condition that he serve sixty
days’ incarceration, a $1,000.00 fine, and a $10.00 special
assessment.
Hernandez timely appeals.
II.
Hernandez maintains that he has a Sixth Amendment right to a
jury trial on the DWI charge. In order to determine whether a
right to jury trial attaches to a particular offense, courts must
examine “objective indications of the seriousness with which
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society regards the offense.” Blanton, 489 U.S. at 541. “The best
indicator of society’s views is the maximum penalty set by the
legislature,” with the primary emphasis being upon “the maximum
authorized period of incarceration.” Nachtigal, 507 U.S. at 3.
Where a maximum prison term for an offense is no higher than six
months, the offense is presumed to be “petty,” even if accompanied
by additional penalties, and thus no right to jury trial attaches.
Blanton, 489 U.S. at 543. While this presumption can be overcome
by a showing that such additional penalties “viewed in conjunction
with the maximum authorized period of incarceration . . . are so
severe that they clearly reflect a legislative determination that
the offense in question is a ‘serious’ one,” id., the Supreme
Court has held that the additional penalties for DWI set forth in
36 C.F.R. § 4.23(a)(2) do not render that offense “serious” for
purposes of the Sixth Amendment. Nachtigal, 507 U.S. at 5-6.
In the face of this directly controlling Supreme Court
precedent, Hernandez nonetheless contends that his DWI is “serious”
for Sixth Amendment purposes because of (1) “additional statutory
penalties” found in Virginia recidivism statutes; (2) the unique
circumstances of his particular DWI offense; and (3) evolving
societal views of driving while intoxicated. We address each of
these arguments in turn.
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A.
Hernandez contends that “additional statutory penalties” found
in Virginia recidivism statutes -- statutes under which he was not
charged -- render his DWI offense a “serious” one for Sixth
Amendment purposes. Specifically, Hernandez points out that,
although he was charged with DWI under 36 C.F.R. § 4.23(a)(2), this
court should consider that had he been charged under the relevant
Virginia DWI statutes, he would have been subject to a mandatory
minimum prison term of six months and a minimum five year license
suspension. Va. Code. Ann. §§ 18.2-270, -271, 46.2-391 (2005).
Hernandez also claims that the penalties contained in 36 C.F.R.
§ 4.23(a)(1) do not truly reflect a “legislative” judgment
regarding the seriousness of the DWI offense because the relevant
regulation was created by the Secretary of the Interior.
These arguments are all foreclosed by the Supreme Court’s
decision in Nachtigal. As to the Virginia recidivism statutes,
Hernandez points to no case indicating that we should look to
penalties prescribed by statutes under which he was not even
charged to determine whether his crime entitles him to a jury
trial. In fact, the Supreme Court expressly instructs that laws
passed by different legislatures are “irrelevant to the question
whether a particular legislature deemed a particular offense
‘serious.’” Nachtigal, 507 U.S. at 4 (citing Blanton, 489 U.S. at
545, n.11). Here, Hernandez faced only those penalties associated
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with a DWI offense charged under the C.F.R. It is therefore the
legislative judgment contained in 36 C.F.R. § 4.23(a)(1) and the
Supreme Court’s holding that § 4.23(a)(1) is a petty offense that
guides our analysis and requires us to reject Hernandez’s argument
that “additional statutory penalties” render his DWI offense
“serious” for purposes of the Sixth Amendment.
As to the role of the Secretary of the Interior, the Supreme
Court expressly held that 36 C.F.R. § 4.23(a)(1) is not “stripped
of its ‘legislative’ character merely because the Secretary [of the
Interior] has final authority to decide, within the limits given by
Congress, what the maximum prison sentence will be for a violation
of a given regulation.” Nachtigal, 507 U.S. at 4.
B.
Hernandez next contends that the unique circumstances of his
particular DWI offense render it “serious” for purposes of the
Sixth Amendment. Hernandez argues that additional penalties he
potentially faced as third-time DWI offender (beyond the
possibility of six months of incarceration under 36 C.F.R.
§ 4.23(a)(1)) render his particular DWI “serious.” Specifically,
Hernandez maintains that because he faced both the possible
aggregation of penalties on his two separate petty offenses and the
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collateral consequence of license revocation under Virginia law, he
was entitled to a jury trial.1
Hernandez’s first argument -- that the potential aggregation
of penalties for two separate petty offenses renders his DWI
“serious” for Sixth Amendment purposes -- is also foreclosed by
Supreme Court precedent. The Supreme Court has made clear that
being “charged with two counts of a petty offense does not revise
the legislative judgment as to the gravity of [a] particular
offense, nor does it transform the petty offense into a serious
one.” Lewis v. United States, 518 U.S. 322, 327 (1996). Moreover,
the district court did not even impose an aggregate sentence of
more than six months incarceration on the two petty offenses for
which Hernandez was convicted.
Supreme Court precedent also forecloses Hernandez’s argument
that the loss of driving privileges he potentially faces under
Virginia law for a third DWI conviction render his DWI offense
“serious” for Sixth Amendment purposes. In Nachtigal, the Supreme
Court held that the regulatory revocation of the defendant’s
license was not “constitutionally significant” in regard to the
1
Hernandez also argues that the mandatory minimum sentence
of incarceration for a third DWI under Va. Code Ann. § 18.2-270,
which might have been (but was not) imposed upon him pursuant to
Virginia’s comity policy, renders his DWI offense “dramatically
more serious than other six month offenses under the CFR.” We
again decline Hernandez’s invitation to make a determination
regarding the seriousness of his DWI offense based upon a survey of
penalties contained in statutes under which he was neither charged
nor sentenced. See Nachtigal, 507 U.S. at 4.
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right to a trial by jury. 507 U.S. at 4. We therefore reject
Hernandez’s argument that the circumstances of his case render his
DWI conviction uniquely “serious” under the Sixth Amendment.
C.
Finally, Hernandez argues that we should revisit the standard
for defining the “seriousness” of an offense set forth by the
Supreme Court in Blanton and find that a DWI is indeed a “serious”
offense for purposes of the Sixth Amendment. In particular,
Hernandez contends that the development of Virginia’s drunk driving
laws and of society’s views regarding the seriousness of drunk
driving offenses demonstrate that “the line between serious and
petty under the Sixth Amendment evolves.”
It goes without saying that the decisions of the Supreme Court
bind the circuit courts of appeals. We accordingly shall not adopt
Hernandez’s proposed common-law methodology for determining whether
an offense is “serious” for purposes of the Sixth Amendment -- a
methodology the Supreme Court explicitly rejected in favor of the
objective, statutory-maximum-penalty analysis we applied above.
See, e.g., Lewis, 518 U.S. at 326-27.
For the foregoing reasons, we affirm the judgment.
AFFIRMED.
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