United States of America v. Jorge Alberto Hernandez-Rivas

United States Court of Appeals
For the Eighth Circuit
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No. 13-2861
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jorge Alberto Hernandez-Rivas
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 16, 2014
Filed: June 27, 2014
[Unpublished]
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Jorge Alberto Hernandez-Rivas appeals the sentence imposed after he pled
guilty, without a plea agreement, to being an illegal alien in possession of a firearm,
in violation of 19 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). Counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), and moved to withdraw.

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Hernandez-Rivas argues the district court erred by applying a four-level1
enhancement for possession of a firearm in connection with another felony offense,
and by failing to apply a three-level reduction for acceptance of responsibility.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Testimony at sentencing established that Hernandez-Rivas thought another
driver was aggressive, so he pulled a gun and aimed it at him. The district court
rejected the defense’s argument that use of a weapon is a reasonable response to an
interstate-highway dispute and imposed the four-level enhancement. The court
disallowed the acceptance-of-responsibility reduction because Hernandez-Rivas’s
attempt to justify his behavior is contrary to accepting responsibility.
The district court did not err in applying the four-level enhancement or in
denying the three-level reduction. See United States v. Arellano, 291 F.3d 1032, 1034
(8th Cir. 2002) (factual finding about acceptance of responsibility is reversed only if
so clearly erroneous as to be without foundation); U.S.S.G.§ 3E1.1, comment, n.1(A)
(defendant not required to admit relevant conduct beyond offense of conviction in
order to qualify for reduction, but “defendant who falsely denies, or frivolously
contests, relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility”), comment, n.5 (sentencing court is
in unique position to evaluate acceptance of responsibility).
This court has independently reviewed the record pursuant to Penson v. Ohio,
488 U.S. 75, 80 (1988). The imposition of the condition of supervised release that
Hernandez-Rivas abstain from alcohol and alcohol-selling businesses is not plain
error. See United States v. Simons, 614 F.3d 475, 478-79 (8th Cir. 2010) (when
defendant fails to object to supervised release condition at sentencing, review is plain
The Honorable Dean Whipple, United States District Judge for the Western1
District of Missouri.
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error; plain error occurs if district court deviates from legal rule and error is clear
under current law, affects defendant’s substantial rights, and seriously affects
fairness, integrity, or public reputation of judicial proceedings). Hernandez-Rivas
did not object at sentencing and the district court articulated reasons for the condition.
See id. at 481 (questioning supervised release condition banning alcohol, but holding
it was not plain error). Moreover, Hernandez-Rivas was sentenced at the bottom of
the appropriate Guidelines range and the sentence was not substantively
unreasonable. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009)
(en banc) (court reviews sentences for abuse of discretion, and may apply
presumption of reasonableness to within-Guidelines-range sentence). There are no
non-frivolous issues for appeal.
The judgment is affirmed, and counsel’s motion to withdraw is granted.
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