In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐1719
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
HECTOR HERNANDEZ,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:10‐cr‐50088‐2 — Frederick J. Kapala, Judge.
ARGUED FEBRUARY 13, 2013 — DECIDED SEPTEMBER 10, 2013
Before BAUER, SYKES, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. On January 18, 2011, Hector
Hernandez was charged with one count of conspiracy to
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846, and two counts of possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).
Hernandez filed what is described as a Petition to Enter a Plea
of Guilty and then pleaded guilty to all three counts. At
sentencing, the district court found that Hernandez was
2 No. 12‐1719
responsible for more than 150 kilograms of cocaine and
sentenced him to a term of 210 months’ imprisonment,
followed by four years of supervised release. On appeal,
Hernandez challenges the constitutional validity of his plea,
the district court’s finding that he was accountable for more
than 150 kilograms of cocaine, and the district court’s
calculation of his sentence. For the following reasons, we
affirm.
I. BACKGROUND
On January 18, 2011, Hernandez and his co‐defendant
Ricardo Vasquez were indicted on three counts of conspiracy
to possess, possession, and distribution of cocaine. That same
day, Felipe Rodriguez was also indicted. Rodriguez had been
cooperating with the Government against both Hernandez and
Vasquez, and he had implicated the men in three large
quantity cocaine shipments at a quarry in Rockford, Illinois.
Hernandez entered a plea of not guilty. On July 7, 2011,
Vasquez pleaded guilty pursuant to a written plea agreement,
which stated that he assisted Hernandez in delivering and off‐
loading three shipments to the Rockford quarry that each
involved at least 75 kilograms of cocaine.
On September 1, 2011, Hernandez withdrew his not guilty
plea and pleaded guilty. As part of his guilty plea, Hernandez
submitted a Petition to Enter a Plea of Guilty. In the Petition,
Hernandez stated that he was pleading guilty to the three
counts contained in the Indictment, and acknowledged that the
Indictment charged him with conspiring to possess with intent
to distribute more than 500 grams of cocaine. Hernandez
further acknowledged that his guilty plea exposed him to a
No. 12‐1719 3
statutory mandatory minimum sentence of five years’
imprisonment and a maximum sentence of forty years,
pursuant to 18 U.S.C. § 841(b)(1)(B). Hernandez’s Petition did
not detail specific allegations concerning the three quarry
shipments, but acknowledged that, “the Government will
likely assert that the base offense level is 38 based upon alleged
relevant conduct and the delivery of more than 150 kilograms
of cocaine” and that he was subject to a mandatory minimum
sentence of five years’ imprisonment.
On February 1, 2012, Hernandez filed a sentencing
memorandum in which he objected to the drug quantity,
disputed the assessment of criminal history points, and asked
the district court to find him eligible for the safety valve
reduction. On December 12, 2012, the district court conducted
the first part of a bifurcated sentencing hearing. Before
Hernandez’s plea colloquy, the district court swore in a
Spanish interpreter to translate the proceeding for Hernandez.
The district court then asked Hernandez if he was “pleading
guilty to all the counts” and Hernandez responded by asking,
“what are the charges?” The district court assured Hernandez
that it would explain the charges in detail later in the
proceeding and asked whether he was pleading guilty to all
three counts. Hernandez responded that he only discussed
pleading guilty to one charge with his “other attorney.”
Hernandez’s lawyer interjected and suggested that his law
partner may have explained the proceeding differently: “The
case is broken down into three counts … So, it’s one case, one
charge, but he’s pleading guilty to all three of those counts.”
The district court then briefly delayed the proceeding so that
Hernandez could discuss the issue with his attorney. Following
4 No. 12‐1719
the break, the district court asked Hernandez how he would
like to proceed and told Hernandez that while he should
consider his attorney’s advice, the decision whether to plead
guilty was his alone. Hernandez confirmed that he had
discussed all of the counts with his attorney and did not have
any questions for the court. The court then asked which, if any,
of the charges did Hernandez wish to admit. Hernandez
replied, “Your Honor, that I plead guilty to the three charges.”
Next, the district court informed Hernandez of his
constitutional rights, and Hernandez acknowledged that he
understood those rights. The district court then read all three
charges contained in the indictment, and Hernandez told the
court he understood the charges, that they were the same
charges he discussed with his attorneys, and that he had no
questions about the charges. The district court informed
Hernandez about the possible penalties that he could face
during sentencing, and he acknowledged that he understood.
Finally, at the district court’s request, the government recited
the factual basis for the plea. The district court asked the
defendant if the summary was correct, and he agreed that it
was. The district court then asked Hernandez if he disagreed
with any part of the government’s statement and he said no.
Finally, the district court asked Hernandez if he committed the
offenses as described, and he said yes.
Much of the drug quantity evidence at Hernandez’s hearing
came from the testimony of Felipe Rodriguez, a cooperating
witness. Rodriguez testified that he had known Hernandez for
over three years, and that Hernandez had approached him 18
months earlier for help in finding a location where Hernandez
could off‐load shipments of cocaine. Rodriguez found a rock
No. 12‐1719 5
quarry that he believed could handle Hernandez’s cocaine
shipments in Rockford, Illinois. Rodriguez testified in detail
about three separate shipments Hernandez made to the rock
quarry, involving approximately 75 kilograms of cocaine per
shipment. Rodriguez also testified that Hernandez gave him
approximately 15 kilograms to sell on his own.
On direct‐examination, Rodriguez testified that he was
present at the quarry for all three cocaine shipments. On cross‐
examination, however, defense counsel elicited from
Rodriguez that he initially told investigators that he was
present for only two of the three shipments to the quarry. FBI
Agent Heatherman subsequently testified that he believed that
Rodriguez thought being “present” at the quarry meant to be
physically inside the quarry, and that during one shipment
Rodriguez considered himself not to be “present” because he
was outside of the quarry gate.
After assessing Rodriguez’s testimony, the district court
found it to be reliable. Rodriguez’s descriptions of the cocaine
shipments, along with his meetings with Hernandez where he
received multiple kilograms of cocaine, were squarely against
Rodriguez’s penal interest. Further, Rodriguez’s testimony was
corroborated by additional evidence. During the hearing, an
investigator testified that he overheard two telephone
conversations between Hernandez and Rodriguez confirming
that they were negotiating the logistics of cocaine shipments.
Additionally, more than one kilogram of cocaine, cocaine
trafficking paraphernalia, and $455,278 in cash were found in
Hernandez’s residence; which the district court found to be a
strong indication that Hernandez was a large volume cocaine
trafficker.
6 No. 12‐1719
The second part of the sentencing hearing took place on
March 13, 2012. The PSR concluded that Hernandez possessed
with intent to distribute 2.165 kilograms of cocaine and was
responsible for the delivery and off‐loading of 225 kilograms
of cocaine over the course of three shipments in the Rockford
quarry. Applying the 2011 Sentencing Guidelines, the PSR
determined Hernandez’s base offense level to be 38 because he
was responsible for more than 150 kilograms of cocaine,
pursuant to § 2D1.1(c)(1). The district court specifically asked
the Government and defense counsel if there were any
objections to the PSR. Neither side objected. The district court
adopted the factual findings of the PSR and concluded that the
defendant was responsible for more than 150 kilograms of
cocaine but only exposed to a five‐year mandatory minimum.
The district court based this finding on the testimony of
Rodriguez, as well as the cocaine and large quantity of money
found at Hernandez’s residence. The district court applied a
two‐level reduction for acceptance of responsibility under
§ 3E1.1, but it declined to find Hernandez eligible for a safety
valve reduction. The district court calculated a Guidelines
range of 210 to 262 months, considered the § 3553(a) factors,
heard arguments from counsel and a statement from
Hernandez, and then sentenced Hernandez to 210 months’
imprisonment. Hernandez filed a timely appeal.
II. DISCUSSION
On appeal, Hernandez argues that his guilty plea was not
given knowingly and voluntarily, that the district court
committed error by relying on the testimony of a cooperating
witness when it determined the drug quantity for which
Hernandez was responsible, and that the district court
No. 12‐1719 7
improperly enhanced Hernandez’s mandatory minimum
sentence in violation of his Fifth and Sixth Amendment Rights.
We will address each argument in turn.
A. Knowing and Voluntary Guilty Plea
Hernandez asserts on appeal that he did not knowingly and
voluntarily plead guilty, and that the district court violated
Federal Rule of Criminal Procedure 11(b)(1)(G) by failing to
adequately assess his ability to understand Count One of the
Indictment. As Hernandez never sought to withdraw his guilty
plea in the district court, we review his claim for plain error
and ask whether: (1) an error occurred; (2) it was plain; (3) it
affected the defendant’s substantial rights; and (4) it seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Pineda‐Buenaventura, 622
F.3d 761, 770 (7th Cir. 2010) (internal citations omitted).
Hernandez argues that he lacked both the education and
language fluency necessary to understand the nature of his
conspiracy charge. In order to determine whether a defendant
understood the nature of a charge, we take a totality‐
of‐the‐circumstances approach and consider: (1) the complexity
of the charge; (2) the defendantʹs intelligence, age, and
education; (3) whether the defendant was represented by
counsel; (4) the district judgeʹs inquiry during the plea hearing
and the defendantʹs own statements; and (5) the evidence
proffered by the government. United States v. Bradley, 381 F.3d
641, 645 (7th Cir. 2004).
First, the charges in this case were relatively straight
forward and Hernandez signed his Petition to Enter a Plea of
Guilty which detailed each count. Count One charged
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Hernandez with conspiring with Vasquez to possess and
distribute cocaine. Counts Two and Three charged Hernandez
and Vasquez with possessing and intending to distribute
cocaine. Next, although Hernandez has had little formal
education (eight years of schooling in Mexico), he is forty‐years
old, able to read and write in Spanish, and was provided with
the services of an interpreter to communicate with the court
and his attorneys, who represented him throughout the
proceedings. Finally, the district court conducted a thorough
inquiry into Hernandez’s understanding of all aspects of his
guilty plea, and when Hernandez expressed confusion
regarding pleading to one charge rather than three, the district
court stopped the proceeding and gave Hernandez the
opportunity to speak again with his attorney regarding the
charges. After Hernandez conferred with his counsel, the
district court read all of the charges contained in the
indictment, Hernandez acknowledged he discussed these
charges with his attorney, and that he wished to plead guilty
to all three charges. Finally, the government provided a proffer
of the evidence it would have introduced at trial. The district
court asked Hernandez if the government’s summary was
correct and if he committed the crimes as described,
Hernandez answered in the affirmative, and pleaded guilty to
each of the three charges in the indictment.
Hernandez’s reliance on United States v. Pineda‐
Buenaventura, 622 F.3d 761 (7th Cir. 2010) is misplaced. The
defendant in Pineda‐Buenaventura repeatedly denied that he
had an agreement with others to distribute drugs, and the
district court found that it could not “clearly determine what
acts [the defendant] admitted.” Id. at 775. That is not the case
No. 12‐1719 9
here. The record shows that Hernandez knowingly and
voluntarily pleaded guilty. The district court conducted a
thorough plea colloquy, ensuring that Hernandez was
provided an interpreter at every stage of the proceeding,
advised Hernandez of his rights, ensured that he understood
them and that he was fully aware of the nature of the charges,
the consequences of his plea, and the possible punishment.
Accordingly, we reject the argument that Hernandez did not
knowingly and voluntarily plead guilty.
B. Increase in Offense Level Based Upon Drug Quantity
Finding
Hernandez next argues that the district court committed
clear error by crediting the testimony of a cooperating witness
in finding that Hernandez’s conduct involved more than 150
kilograms of cocaine. The quantity of narcotics that the district
court attributes to the defendant for sentencing purposes is a
finding of fact that we review for clear error. United States v.
Conteras, 249 F.3d 595, 602 (7th Cir. 2001).
Hernandez argues that the district court erred when it
relied on Rodriguez’s inconsistent testimony. We disagree.
Whether or not to believe Rodriguez’s testimony called for a
credibility determination that the district court was uniquely
situated to make. See United States v. Conteras, 249 F.3d 595, 602
(7th Cir. 2001). The district court was satisfied that Rodriguez
provided truthful testimony, which was corroborated by
additional evidence, including the large amount of cash and
cocaine found at Hernandez’s residence during his arrest,
confirming that he was a large quantity drug trafficker. While
we do find it odd that Agent Heatherman was allowed to offer
10 No. 12‐1719
his opinion as to what Rodriguez meant by being “present” at
the quarry, we also find nothing in the record that casts such
significant doubt on Rodriguez’s testimony as to have
precluded the district court from relying on it. See United States
v. Woods, 148 F.3d 843, 847 (7th Cir. 1998).
C. Mandatory Minimum Sentence Enhancement
Hernandez’s final argument is that his Fifth and Sixth
Amendment rights were violated when the district court found
facts that increased the amount of cocaine Hernandez was
responsible for from 500 grams to 150 kilograms. As
Hernandez failed to assert this claim in the district court, our
review is limited to plain error. United States v. Johnson, 680 F.
3d 966, 973 (7th Cir. 2012) (internal citations omitted).
Hernandez pleaded guilty to conspiring with his co‐
defendants, and knowingly and intentionally possessing with
intent to distribute 500 grams or more of cocaine, in violation
of § 841(a). As a result, Hernandez faced a five‐year mandatory
minimum sentence under § 841(b)(1)(B)(ii)(II). Hernandez’s
PSR, which the district court adopted, however, calculated his
criminal activity and relevant conduct to involve more than
150 kilograms of cocaine. Hernandez contends that when the
district court found him responsible for 150 kilograms, his Fifth
and Sixth Amendment rights were violated in the wake of
Alleyne v. United States, – U.S. – ,133 S. Ct. 2151, — L.Ed.2d —
(2013). In Alleyne, the Supreme Court held that “any fact that
increases a mandatory minimum sentence is an ‘element’ that
must be submitted to the jury.” Id. at 2155. Therefore, a district
court errs when it makes a judicial finding of fact that increases
No. 12‐1719 11
the statutory mandatory minimum sentence facing a defendant.
In this case, there is no indication in the record that the
district court judge thought he had to impose a higher
mandatory minimum sentence as a result of finding
Hernandez responsible for a larger amount of cocaine than his
charging document attributed to him. Hernandez’s PSR said
the mandatory minimum he faced was five years and the
district court judge repeated that fact multiple times during
Hernandez’s sentencing hearing. Even though the district court
found Hernandez responsible for 150 kilograms or more of
cocaine for Sentencing Guidelines calculation purposes, that
finding did not affect the statutory mandatory minimum that
he faced, which is governed by the charging document. As
Guidelines ranges are only advisory, the Fifth and Sixth
Amendment requirements do not apply. See, e.g., U.S. v.
Abdulahi, 523 F.3d 757, 760‐61 (7th Cir. 2008); U.S. v. Thomas,
446 F.3d 1348, 1355 (7th Cir. 2006); U.S. v. De la Torre, 327 F.3d
605, 611 (7th Cir. 2003). We see no Alleyne error here, and
accordingly decline to remand for resentencing.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
United States v. Hector Hernandez
Combined Opinion