United States Court of Appeals, District of Columbia Circuit
March 15, 2016
from the United States District Court for the District of
Columbia (No. 1:10-cr-00256-RMC)
D. Hernandez, appointed by the court, argued the cause and
filed the briefs for appellant.
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.
SRINIVASAN CIRCUIT JUDGE.
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.
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.
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,
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.
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.
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 ...