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United States v. Melgar-Hernandez

United States Court of Appeals, District of Columbia Circuit

August 9, 2016

United States of America, Appellee
v.
Juan Melgar-Hernandez, also known as Triste, Appellant

          Argued March 15, 2016

         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

          SRINIVASAN CIRCUIT JUDGE.

         Appellant Juan Melgar-Hernandez pleaded guilty to a conspiracy charge under the 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 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. (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 ...


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