United States of America v. Luis Alberto Hernandez-Barajas

United States Court of Appeals
For the Eighth Circuit
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No. 21-3763
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United States of America
Plaintiff - Appellee
v.
Luis Alberto Hernandez-Barajas
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: December 12, 2022
Filed: June 28, 2023
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Luis Hernandez-Barajas received an enhancement for “direct[ing] the use of
violence.” U.S.S.G. § 2D1.1(b)(2). The facts support the enhancement, so we
affirm.

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I.
While in prison for dealing drugs, Hernandez-Barajas continued to run his
operation from behind bars. At one point, he arranged for a shipment of marijuana
to a relative. But when black-tar heroin arrived instead, Christopher Hicks sold it
on his behalf.
The arrangement went so smoothly that they teamed up again to sell
methamphetamine. The process was the same each time. Hernandez-Barajas would
arrange deliveries to Hicks, who would then sell the drugs. Hicks paid for the drugs
in one of three ways: a personal delivery of cash to someone in Hernandez-Barajas’s
family, a deposit in another inmate’s prison account, or a wire transfer to a third
party.
Once Hicks quit paying, however, the relationship fell apart. Nonpayment
turned into non-responsiveness: Hicks ignored texts and other communications.
And Hernandez-Barajas’s family got caught “in the middle” of a “danger[ous]” drug
dispute.
To protect his family, Hernandez-Barajas pointed the finger at Hicks and
passed along his address to their suppliers. He then told Hicks via text that
“[t]omorrow at noon a guy is gonna be at [your] house[,] talk to him.” When there
was no response, he finally said, “[l]isten this is the last tex[t] I will send [you], I
can’t hold th[ese] people back anymore, and since [you] don’t answer my calls [I]
am about to [tell] them that [you] don’t want to pay and . . . whatever they do after
that is on you.”
Meanwhile, Hicks continued to sell drugs, including what he received through
Hernandez-Barajas. He eventually sold those drugs in controlled buys, which led to
federal drug charges. Hernandez-Barajas, for his part, pleaded guilty to a single
count of conspiracy to distribute 50 grams or more of methamphetamine. See 21
U.S.C. §§ 841(a)(1), (b)(1)(A), 846.

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At sentencing, the district court1 gave him a two-level enhancement for
“ma[king] a credible threat to use violence[] or direct[ing] the use of violence.”
U.S.S.G. § 2D1.1(b)(2). Hernandez-Barajas challenges the enhancement on appeal.
II.
The question is whether providing a co-conspirator’s address to dangerous
people “direct[s] the use of violence” or itself conveys “a credible threat to use
violence.” U.S.S.G. § 2D1.1(b)(2). In addressing this question, we review “the
district court’s interpretation of the [S]entencing [G]uidelines de novo.” United
States v. Wattree, 431 F.3d 618, 621 (8th Cir. 2005).
A.
At the heart of this case is what U.S.S.G. § 2D1.1(b)(2) says. See United
States v. Clayborn, 951 F.3d 937, 939 (8th Cir. 2020) (“using the ordinary tools of
statutory interpretation” on the Sentencing Guidelines (citation omitted)). It allows
a district court to impose a two-level enhancement when one of three situations
arises: “the defendant used violence, made a credible threat to use violence, or
directed the use of violence.” U.S.S.G. § 2D1.1(b)(2).
Basic grammar tells us what the sentence means. See Nielsen v. Preap, 139
S. Ct. 954, 965 (2019) (“Words are to be given the meaning that proper grammar
and usage would assign them.” (brackets omitted) (quoting Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012)). The
sentence’s subject, the doer of the action, is the defendant. See Bryan A. Garner,
Garner’s Modern American Usage 918 (3d ed. 2009); see also Rodney Huddleston
& Geoffrey K. Pullum, The Cambridge Grammar of the English Language 230, 235
1 The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.

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(2002) (explaining that, in this kind of sentence, the subject causes “an action or
event”). There are also three verbs that cover what the defendant must do: use, make,
or direct. See TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 102 (D.D.C. 2020)
(“[V]erbs describe the ‘action the subject exerts . . . .’” (quoting The Chicago
Manual of Style ¶ 5.98 (17th ed. 2017)). And the direct object of each verb involves
violence: using it, making a credible threat of it, or directing it. See Anne Enquist
& Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal
Writer 166 (3d ed. 2009) (stating that a direct object “receive[s] the action of the
verb”); see also United States v. Sanders, 966 F.3d 397, 406 (5th Cir. 2020)
(explaining the “grammatical[] significan[ce]” of “direct object[s],” which
“receiv[e] the action of a transitive verb” (citation omitted)). According to this basic
subject-verb-object sentence, it is the defendant who must do one of those three
acts,2 each of which must connect to violence in a specified way. See The
Cambridge Grammar, supra, at 238, 1349.
B.
With those basic grammatical principles in mind, our task is to figure out
whether Hernandez-Barajas committed any of the listed acts. The parties agree on
one thing: having been in prison at the time, he never “used violence” against Hicks.
U.S.S.G. § 2D1.1(b)(2); see The American Heritage Dictionary of the English
Language 1907 (5th ed. 2016) (defining “use” as “[t]o avail oneself of” or “[t]o put
into service or employ for a purpose” (emphasis added)).
2 When the defendant is not the one who needs to personally perform an act,
there are other ways to say so. See Scalia & Garner, supra, at 170 (“[A] material
variation in terms suggests a variation in meaning.”). One example is a Sentencing
Guidelines provision that has multiple subjects and language making it clear that the
defendant is accountable for the acts committed by others. See U.S.S.G.
§ 2D1.1(b)(7) (increasing the offense level by two “[i]f the defendant, or a person
for whose conduct the defendant is accountable . . . , distributed a controlled
substance” in a certain way (emphasis added)).

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Whether Hernandez-Barajas “made a credible threat to use violence” is a
closer call. U.S.S.G. § 2D1.1(b)(2). Recall that, grammatically speaking, the
defendant is the one who must make the credible threat, even if it involves the
potential use of violence by someone else. Our cases reflect this interpretation.
Consider United States v. Lewis-Zubkin, 907 F.3d 1103 (8th Cir. 2018) (per curiam).
There, the defendant threatened to assault two co-conspirators and then paid a third
party to do it. Id. at 1104. Although the opinion never directly states which of the
three listed acts the defendant committed, the reasoning suggests that we treated it
as a credible threat. See id. (citing United States v. Kirk Tang Yuk, 885 F.3d 57, 82–
83 (2d Cir. 2018), which affirmed a credible-threat enhancement).
Here, by contrast, Hernandez-Barajas never actually threatened Hicks. He
demanded “money” and “answer[s]” and told Hicks that “whatever they do after that
is on you.” But even that final warning does not “express[] . . . an intention to inflict
pain, harm, or punishment” through the acts of others. American Heritage
Dictionary, supra, at 1813 (emphasis added) (defining “threat”).
The government has one last chance to make the enhancement work: showing
that Hernandez-Barajas “directed the use of violence” against Hicks. U.S.S.G.
§ 2D1.1(b)(2). To “direct” means “to dispatch, aim, or guide,” so it necessarily
contemplates “assist[ing]” or “guid[ing]” someone else. Webster’s Third New
International Dictionary 640 (2002).
The object, at least in the grammatical sense, is “the use of violence.” See
Sanders, 966 F.3d at 406. This noun phrase requires an “application or employment
of” violence, no matter who does it. American Heritage Dictionary, supra, at 1907
(defining the noun form of the word “use”); cf. Barbato v. Greystone All., LLC, 916
F.3d 260, 267 (3d Cir. 2019) (reading two statutory definitions differently because
“the verb ‘to collect’ . . . describ[ed] the actions of those it intended the definition to
cover, [but] the noun ‘collection’ . . . did not specify who must do the collecting”
(citation omitted)). Putting those pieces together yields a clear meaning: the

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defendant must “assist” or “guide” someone else in the use of violence. See Sanders,
966 F.3d at 406; see also Enquist & Oates, supra, at 166.
It is possible, as the dissent argues, to “guide” someone else in the use of
violence through the exercise of authority. But another way to do it, like Hernandez-
Barajas did here, is through persuasion or suggestion. As even the dissent’s
definition recognizes, direction does not always require authority. See Webster’s
Third, supra, at 640 (defining “direct” as “to request or enjoin esp[ecially] with
authority” (emphasis added)).
An everyday example proves the point. Imagine that a city snowplow piles
snow in front of a driveway. The homeowner comes out and tells the driver to push
it somewhere else. The homeowner has no authority over the snowplow or the
driver. Yet most people would still conclude that the homeowner “directed” the
driver to do something else with it.
The same sort of direction happened here. Once danger came knocking on
his family’s door, Hernandez-Barajas redirected the suppliers’ anger toward the
person who refused to pay. It was “reasonably foreseeable” that this simple act,
given how dangerous they were, could have led to the use of violence against Hicks.
United States v. McDonald, 43 F.4th 1090, 1098 (10th Cir. 2022) (“[D]irecting the
use of violence merely requires that violence be ‘reasonably foreseeable’ based on
[the] defendant’s actions.” (citation omitted)).
Hernandez-Barajas has a different view. He argues that, at most, he alerted
Hicks of potential danger. But what he told Hicks is not what matters. Rather, the
focus is on what he told his suppliers, who were trying to get their money. And here,
he “directed” them to go after Hicks instead of his own family, fully aware of their
intent and ability to do harm. U.S.S.G. § 2D1.1(b)(2); see McDonald, 43 F.4th at
1098–99 (affirming a directing-the-use-of-violence enhancement after the defendant
told an associate to “handle” a cooperator); United States v. Perez, 962 F.3d 420,
451 (9th Cir. 2020) (affirming an enhancement for a defendant who took young gang

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members to a neighboring community and told them to “put in work,” which led
them to “kill[] a [rival] gang member”). For that reason, the record supports a two-
level enhancement for “direct[ing] the use of violence.” U.S.S.G. § 2D1.1(b)(2).
III.
We accordingly affirm the judgment of the district court.
SMITH, Chief Judge, concurring.
I concur in the judgment of the court but on a different ground from that stated
in its opinion. I would affirm the district court’s application of the two-level
enhancement because Hicks “made a credible threat to use violence.” U.S.S.G.
§ 2D1.1(b)(2).
Section 2D1.1(b)(2) provides that a two-level enhancement applies “[i]f the
defendant used violence, made a credible threat to use violence, or directed the use
of violence.” (Emphasis added.) “[T]he enhancement applies regardless of whether
the threatened violence is ultimately carried out.” Lewis-Zubkin, 907 F.3d at 1104.
We review de novo the district court’s interpretation of § 2D1.1(b)(2) but its
“application of [§ 2D1.1(b)(2)] to the facts for clear error.” United States v.
Rutherford, 599 F.3d 817, 820 (8th Cir. 2010); see also Lewis-Zubkin, 907 F.3d at
1104 (“We find no clear error in the district court’s application of the § 2D1.1(b)(2)
enhancement.”).
As the court correctly notes, “[o]ur cases reflect [the] interpretation” that “the
defendant is the one who must make the credible threat, even if it involves the
potential use of violence by someone else.” See supra Part II.B (citing Lewis-Zubkin,
907 F.3d at 1103–04). The question then becomes whether the record supports a
finding that Hernandez-Barajas threatened Hicks.

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Section 2D1.1(b)(2) does not define “threat.” Cf. United States v. Pineda-
Duarte, 933 F.3d 519, 523 (6th Cir. 2019) (“[T]he Commission chose not to include
a definition of ‘violence’ in § 2D1.1(b)(2).”). Nonetheless, “[d]ictionaries can help
fill this interpretive gap.” Id. (citing Johnson v. United States, 559 U.S. 133, 138–39
(2010)). Black’s Law Dictionary defines “threat” as follows:
1. A communicated intent to inflict harm or loss on another or on
another’s property, esp. one that might diminish a person’s freedom to
act voluntarily or with lawful consent; a declaration, express or implied,
of an intent to inflict loss or pain on another <a kidnapper’s threats of
violence>. — threatener, n.
. . .
2. An indication of an approaching menace; the suggestion of an
impending detriment <the threat of bankruptcy>. 3. A person or thing
that might well cause harm <Mrs. Harrington testified that she had
never viewed her husband as a threat>. — threaten, vb. — threatening,
adj.
Threat, Black’s Law Dictionary (11th ed. 2019) (bold omitted).
Case law, albeit noncontrolling, supports application of § 2D1.1(b)(2) when
the threats are implied rather than express. Tang Yuk, 885 F.3d at 83 (“That the
statements in question could be interpreted as innocent hyperbole . . . does not
compel the District Court to draw such a conclusion. Nor was the District Court
barred from inferring a threat from Jackson’s testimony that inmates had approached
him in prison and purported to relay messages from Parrilla. The District Court
reasonably took these as both a credible threat to use violence ….”); United States
v. Ceja, 810 F. App’x 477, 478 (8th Cir. 2020) (unpublished per curiam) (holding
that the government satisfied its burden of proving by a preponderance of the
evidence that the defendant made a credible threat to use violence, based on a
cooperating co-conspirator’s testimony that (1) the defendant, having become
agitated at the co-conspirator’s perceived inability to locate either a drug shipment
that was to have been sent to a second co-conspirator or the second co-conspirator

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himself, showed the first co-conspirator videos of violence inflicted by the drug
cartel upon those who were not compliant with its drug dealing activities, and (2)
the cooperating co-conspirator viewed the videos as intimidating and that she
became especially concerned for the second co-conspirator’s safety); United States
v. Cantu, 765 F. App’x 111, 111 (5th Cir. 2019) (unpublished per curiam) (holding
that “the district court reasonably inferred that [the defendant’s] statements to the
police officers constituted a credible threat to use violence” where the defendant, a
gang member, “told two arresting officers that he and the other members of the
[gang] knew personal information about them” and “told one officer that he should
conceal his face while executing warrants and questioned why the officer continued
to work in law enforcement given what the [gang] knew about him”).
I conclude that the district court did not clearly err in finding that Hernandez-
Barajas’s texts to Hicks constituted a threat. Once Hicks ceased paying Hernandez-
Barajas for the drugs, Hernandez-Barajas responded with a series of text messages,
which escalated in tone. Hernandez-Barajas first texted Hicks the following benign
messages:
“I got the gifts ready to send am waiting. Should G send them or not?
Let me know A.S.A.P.;” “They calling me and my wife about the
money I need the tracking # today;” “Come on bro they put my family
in the middle of this and I don’t need this u said u get it done today so
get it done;” and “Take the money to my wife.”
R. Doc. 92, at ¶ 33.
When Hicks did not respond, Hernandez-Barajas texted Hicks:
“Answer the phone somebody is going to my house tomorrow and am
given them you address no more games my family is first and you keep
lyin to me all in is good to you and you did me wrong;” and “Tomorrow
at noon a guy is gonna be at u house talk to him.”

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Id. at ¶ 34 (emphases added). After again receiving no response from Hicks,
Hernandez-Barajas texted Hicks:
“I trust you men and put my family in danger what type of sh*t is that;”
“I need in answer from u so I can figure things out plus, just find out
you have the snow in the way so am gonna give the tracking # to
somebody so they can get it because we can’t do bussines like that is
no trust anymore;” “[Individual #1] is getting out, I will just work with
her;” and “Listen this is the last tex I will send u, I can’t hold this people
back anymore, and since u don’t anwer my calls am about to told them
that u don’t want to pay and that’s that whatever they do after that is on
you but they ain’t after me because I do anwer the phone when they call
hope you have a good year.”
Id. at ¶ 35 (emphases added) (brackets in original).
Viewing these series of texts in their totality, the district court could
reasonably infer that Hernandez-Barajas’s statements communicated an intent to
inflict harm on Hicks through the acts of others. The texts escalate in tone. The first
messages “simply implor[e] Hicks to bring the money to Hernandez-Barajas’s wife,
to provide a tracking number, and to do so that day.” Appellee’s Br. at 14. But the
next series of texts reflect Hernandez-Barajas’s belief that because of Hicks’s
nonpayment and failure to respond, someone connected with Hernandez-Barajas’s
drug sources was “going to [Hernandez-Barajas’s] house,” which jeopardized his
own family’s safety. R. Doc. 92, at ¶ 34. As a result, he communicated to Hicks that
he gave the drug sources Hicks’s “address” and that Hicks needed to “talk” to “a
guy” who would be visiting him. Id. The last text messages “culminate[] in the
clearest statement of a threat to use violence.” Appellee’s Br. at 15. According to
Hernandez-Barajas, Hicks’s continued nonpayment and failure to respond “put
[Hernandez-Barajas’s] family in danger” with his drug sources. R. Doc. 92, at ¶ 35.
Hernandez-Barajas’s statement that he “can’t hold this people back anymore,” id.,
could reasonably indicate that he “had been holding them … back thus far.”
Appellee’s Br. at 14 (emphasis added). What was Hernandez-Barajas restraining
these people from doing? A reasonable inference can be drawn that he had prevented

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certain dangerous individuals from physically assaulting Hicks. But because Hicks
refused to answer Hernandez-Barajas’s calls, Hernandez-Barajas would now permit
them to inflict physical harm upon Hicks. See R. Doc. 92, at ¶ 35 (“[W]hatever they
do after that is on you ….”).
The next question is whether the threat is “credible.” See United States v.
Harris, 578 F. App’x 451, 453 (5th Cir. 2014) (unpublished per curiam) (“The
enhancement focuses on the threat being ‘credible.’”). “[‘Credible’] is naturally read
to mean ‘believable.’” Id. (quoting Credibility, Black’s Law Dictionary 448 (10th
ed. 2014) (defining “credibility” as “[t]he quality that makes something (as a witness
or some evidence) worthy of belief”)).
“[T]he district court’s finding that [Hernandez-Barajas] made a credible threat
to use violence was plausible in light of the record as a whole,” as set forth supra.
Cantu, 765 F. App’x at 111–12 (emphasis added) (internal quotation marks omitted).
While Hernandez-Barajas’s texts “could be interpreted as innocent hyperbole,” the
district court was “not compel[led] … to draw such a conclusion.” Tang Yuk, 885
F.3d at 83 (concluding it was not clear error for the district court to construe
defendant’s comments that referenced “driving a car over” another individual as
credible threats, even if “the statements in question could be interpreted as innocent
hyperbole”).
Accordingly, I would affirm the district court’s application of the two-level
enhancement for having “made a credible threat to use violence.” U.S.S.G.
§ 2D1.1(b)(2).
ARNOLD, Circuit Judge, dissenting.
I conclude for the reasons stated in Judge Stras's opinion that Hernandez-
Barajas did not "ma[k]e a credible threat to use violence." But I respectfully disagree
that Hernandez-Barajas "directed the use of violence" against Hicks because I can't
conclude that the verb "direct" simply "contemplates 'assist[ing]' or 'guid[ing]'

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someone else." To my mind, the more "ordinary or natural meaning," see United
States v. Stimac, 40 F.4th 876, 881 (8th Cir. 2022), of the word in the context of this
particular enhancement is "to request or enjoin esp. with authority," "to issue an
order to," or "to prescribe esp. by formal or mandatory instruction." Webster's Third
New International Dictionary 640 (2002). An officer who directs traffic or a
conductor who directs an orchestra is telling someone over whom he has authority
what to do, and when we remand a case with directions, we are ordering that
something be done. So it would seem that the enhancement contemplates that the
person doing the directing is telling someone what to do.
Suppose that Hernandez-Barajas's drug suppliers had burst into a convenience
store with guns drawn and shouted, "Where's Christopher Hicks?" If, with hands
high and hoping to avoid a bullet, the clerk told the supplier that Hicks worked at
the convenience store across the street, would he be directing the use of violence?
Even if it were "reasonably foreseeable" to the clerk that the robbers would use
violence against Hicks using the information he provided, I don't think most people
would say that the clerk "directed" the robber to use violence against Hicks.
Directing someone to a person against whom he might use violence is fundamentally
different from directing someone to use violence against a person. Nor does the
record support a reasonable inference that Hernandez-Barajas had authority to direct
someone else to use violence against Hicks; in fact, the record suggests the
opposite—Hernandez-Barajas was at the mercy of drug suppliers who were looking
to him to satisfy certain debts. So I think the enhancement is inapplicable.
At a minimum, I suggest that the rule of lenity is relevant. It won't do simply
to settle on a preferred definition without considering the real possibility of
alternative ones. Even if the provision at issue is not as clear as I think it is, its
meaning is eminently debatable. In short, there is a grievous ambiguity in the text,
see Barber v. Thomas, 560 U.S. 474, 488 (2010), and so the rule of lenity requires
us to come down on the defendant's side. This case exemplifies how the rule is
becoming all but extinct, perhaps as a "consequence of zeal to smite the wicked."
See A. Scalia & B Garner, Reading Law: The Interpretation of Legal Texts 301

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(2012). "But a fair system of laws requires precision in the definition of offenses and
punishments." See id.
I would therefore reverse and remand for resentencing.
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