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United States v. Real-Hernandez

filed: July 17, 1996.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANCISCO REAL-HERNANDEZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-94-383-01-GT. Gordon Thompson, Jr., District Judge, Presiding.

Before: J. Clifford Wallace and Thomas G. Nelson, Circuit Judges, and William D. Browning,*fn* District Judge. Opinion by Judge Wallace.

Author: Wallace

WALLACE, Circuit Judge:

Real-Hernandez appeals from his sentence, due to the mandatory minimum sentence of 60 months imposed by the district court after he pled guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742, and we vacate the sentence and remand for resentencing.

I

In the early morning hours of March 11, 1994, United States Customs Agents conducting surveillance at Silver Strand State Beach in Coronado, California, discovered 13 duffel bags containing approximately 971 pounds of marijuana. They also discovered two individuals in wet suits, later identified as Real-Hernandez and Javier Medina-Perez, hiding approximately 100 yards from where the agents found the duffel bags.

The agents took Real-Hernandez and Medina-Perez into custody and informed them of their rights announced by the Court in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Medina-Perez waived his rights and agreed to talk with the agents. He stated that he and Real-Hernandez unloaded the marijuana from small, Zodiac-type boats and intended to hide it at a predetermined location on the beach, where others would come to pick it up. Real-Hernandez invoked his right to remain silent.

On March 23, 1994, Real-Hernandez and his co-defendant were indicted for knowingly and intentionally conspiring to possess with intent to distribute the marijuana. Real-Hernandez pled guilty to a superseding indictment on May 13. The court set sentencing for August 1, 1994.

On May 27, a probation officer interviewed Real-Hernandez. Real-Hernandez told the officer that a man whom he had known for two to three hours approached him, while he was drunk and asleep in a hotel room, and offered him $200 for a job that would take approximately 15 minutes. This man, according to Real-Hernandez, did not tell him the nature of the job, and, at that time, Real-Hernandez said he did not suspect anything illegal. It is unclear from the record whether Real-Hernandez was offered the job in Tijuana, Mexico or in San Ysidro, California, where Real-Hernandez crossed into the United States.

After he accepted the job, Real-Hernandez said the man drove him to the beach. There, Real-Hernandez unloaded two duffel bags from the boat. Only then, he said, did he realize that the bags contained marijuana. Real-Hernandez told nearly the same story at the plea hearing held May 13, 1994.

When customs agent Jacobs conferred with Real-Hernandez on July 14, 1994, at a debriefing session, he repeated that someone had driven him to the beach and told him to off-load the boat. He also reasserted that he did not initially know that he would be off-loading marijuana. The debriefing session lasted only 15 minutes. At its Conclusion, Assistant United States Attorney (AUSA) Torres-Reyes told Real-Hernandez's attorney that she did not believe Real-Hernandez was telling all he knew. AUSA Torres-Reyes gave Real-Hernandez another opportunity to discuss the nature and circumstances of his involvement in the offense but, according to the government, Real-Hernandez declined.

On September 27, 1994, Real-Hernandez was charged in another case with, among other things, conspiracy to import marijuana in violation of 21 U.S.C. §§ 952, 960, and 963 (the 1993 incident). The indictment alleged that in July 1993, Real-Hernandez and others loaded approximately 18 duffel bags containing nearly 1,800 pounds of marijuana into two inflatable, Zodiac-type boats headed for Silver Strand State Beach in Coronado.

Meanwhile, the district court postponed Real-Hernandez's sentencing in this case from August 1, 1994, to January 30, 1995. At the postponed hearing, Real-Hernandez argued that he was entitled to relief from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(f), implemented verbatim at U.S.S.G. § 5C1.2. Sections 3553(f) and 5C1.2 provide that the district court shall ...


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