United States of America v. Jose F. Hernandez

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3480
U NITED S TATES OF A MERICA
Plaintiff-Appellee,
v.
JOSE F. HERNANDEZ
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cr-00462-2 — Rebecca R. Pallmeyer, Chief Judge.
____________________
A RGUED NOVEMBER 3, 2021 — DECIDED J UNE 23, 2022
____________________
Before K ANNE*, BRENNAN , and K IRSCH , Circuit Judges.
K IRSCH , Circuit Judge. Jose Hernandez pled guilty to a
RICO conspiracy charge stemming from his more than three
* Circuit Judge Kanne died on June 16, 2022 and did not participate in the
decision of this case, which is being resolved under 28 U.S.C. § 46(d) by a
quorum of the panel.

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2 No. 20-3480
decades of involvement with a violent gang, the Almighty
Latin Kings Nation. Like many defendants during the
COVID-19 pandemic, Hernandez underwent sentencing by
video. In the end, he received 175 months’ imprisonment,
slightly more than the 138 to 165 months recommended by
the Sentencing Guidelines. He now seeks resentencing on two
grounds. First, he argues that the district court committed a
nonwaivable error when it conducted his sentencing by video
without first making a statutorily-required finding. Second,
he contends that, given the evidence before it, the district
court erred in concluding that he should be held accountable
for conspiracy to commit murder. But we disagree on both
points and affirm.
I
In July 2016, Jose Hernandez was charged with RICO con-
spiracy. See 18 U.S.C. § 1962(d). This charge (Count I of a
nineteen-count indictment with fifteen co-defendants) related
to Hernandez’s membership and leadership role in the May-
wood, Illinois section of a violent gang, the Almighty Latin
Kings Nation. The indictment alleged that Hernandez was the
“Inca”—the chief officer—of the Maywood section, in which
capacity he “oversaw, directed, guided, and participated” in
the gang’s unlawful activities. Among the unlawful acts laid
out in the indictment were “threats, intimidation, and vio-
lence, including acts of murder, attempted murder . . . and
other acts of violence.”
Three years later, in 2019, Hernandez pled guilty, admit-
ting as part of his plea that (1) the Latin Kings had operated
as a criminal enterprise from at least 1999 to 2016; (2) that the
enterprise had participated in racketeering activity including
threats, intimidation, acts of violence, and extortion; (3) that

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No. 20-3480 3
he had agreed that he or his co-conspirators would commit at
least two acts of racketeering activity in furtherance of the en-
terprise; and (4) that these activities had affected interstate
commerce. In other words, Hernandez admitted to all of the
elements of a § 1962(d) violation.
By the time Hernandez was due for sentencing in
December 2020 our nation was deep in the midst of the
COVID-19 pandemic. Congress had by then passed the
CARES Act, which permits felony sentencings—ordinarily
required to be in person, see Fed. R. Crim. P. 43(a)—to
proceed by video when four criteria are satisfied. See Pub. L.
116-136, § 15002(b)(2) (Mar. 27, 2020). The exception to in-
person sentencing applies when: (1) the Judicial Conference
of the United States finds that emergency conditions related
to COVID-19 will materially affect the functioning of the
federal courts; (2) the chief judge of the district court in which
the defendant is to be sentenced finds that felony sentencings
cannot be conducted in person without seriously jeopardizing
public health and safety; (3) the sentencing judge in the
defendant’s case finds for specific reasons that sentencing
cannot be further delayed without serious harm to the
interests of justice; and (4) the defendant consents to appear
by video. Id.
Hernandez’s sentencing hearing was held on December
10, 2020. The first two CARES Act criteria—the required find-
ings by the Judicial Conference and chief district judge—had
been satisfied, so all that remained was for the sentencing
judge to find that Hernandez’s sentencing could not be de-
layed without serious harm to the interests of justice and for
Hernandez to consent to proceed by video. But although the
district judge obtained Hernandez’s consent at the outset of

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4 No. 20-3480
sentencing, the required interests-of-justice finding was over-
looked—an error that no one ever flagged for the district
judge.
The district judge calculated a Guidelines sentencing
range of 135 to 168 months, premised on a total offense level
of 33 for Hernandez’s racketeering conviction. This calcula-
tion was driven by Guideline § 2E1.1, which sets the base of-
fense level for racketeering as the greater of 19 or that of the
most serious underlying racketeering activity. Hernandez in-
sisted that the most serious underlying activity he should be
held accountable for was attempted murder, which garners a
base offense level of 27. But the district judge thought other-
wise, concluding that the evidence was sufficient to hold Her-
nandez liable for conspiracy to commit murder, which carries
a higher base offense level of 33. The district judge increased
the base offense level by three levels for Hernandez’s leader-
ship role in the Latin Kings and reduced the total offense level
by three for his acceptance of responsibility. The judge then
chose a slight upward variance in imposing Hernandez’s sen-
tence, ordering 175 months’ imprisonment.
Hernandez now appeals, pressing two arguments for why
we should order him resentenced. First, he contends that the
district judge committed an automatically reversible error in
failing to make the required CARES Act finding that his sen-
tencing could not be further delayed without serious harm to
the interests of justice. Second, he argues that the district
judge erred in finding that he could be held accountable for
conspiracy to commit murder under Guideline § 2E1.1.

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No. 20-3480 5
II
Pointing to Federal Rule of Criminal Procedure 43(a)(3),
which requires a defendant’s in-person presence for
sentencing, Hernandez argues that the district judge
committed an automatically reversible error in failing to make
the required CARES Act finding that his sentencing could not
be further delayed without serious harm to the interests of
justice. But Hernandez’s argument is foreclosed by our
decision in United States v. Coffin, 23 F.4th 778 (7th Cir. 2022).
Although Rule 43 requires in-person sentencing, the CARES
Act provides otherwise so long as the relevant findings are
made and consent is obtained, and Coffin holds that CARES
Act errors are subject to the ordinary rules of waiver and
forfeiture. See id. at 781 (holding that the defendant had
waived any challenge to the district court’s interests-of-justice
finding by failing to object when given an opportunity to do
so by the district judge).
Hernandez has at the very least forfeited his CARES Act
argument by failing to raise it with the district court, meaning
his claim receives only plain-error review. To obtain relief,
Hernandez must therefore show (1) an error; (2) that is clear
or obvious; (3) that affected his substantial rights; and
(4) which, if uncorrected, would impugn the fairness, integ-
rity, or reputation of judicial proceedings. United States v. But-
ler, 777 F.3d 382, 388 (7th Cir. 2015).
The plain-error standard is insurmountable here. Hernan-
dez insists that the CARES Act criteria weren’t satisfied—that
further delay for in-person sentencing would have harmed no
one, including him. But it’s not enough for plain-error pur-
poses to argue simply that the district judge erred by omitting
a required finding. Unless Hernandez shows that his

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6 No. 20-3480
substantial rights were affected—that he was prejudiced, in
other words—the principle of no harm, no foul controls. Her-
nandez fails to argue (as he must, to obtain relief), that with-
out the CARES Act omission, there would have been a “rea-
sonable probability of a different outcome.” United States v.
Williams, 949 F.3d 1056, 1068 (7th Cir. 2020). Nor do any signs
in the record point us to that conclusion.
Hernandez spoke on his own behalf at sentencing, as was
his right, see Fed. R. Crim. P. 32(i)(4), and had the opportunity
to make any sentencing argument he wished. Nothing sug-
gests that the district judge discounted Hernandez’s allocu-
tion or otherwise viewed his sentencing arguments less favor-
ably merely because he made them remotely. To the contrary,
the district judge observed that Hernandez is a devoted father
and noted that “his efforts in so many directions have been
very positive,” especially with regard to his pursuit of lawful
employment as a medical technician. But the district judge
found these positive factors to be outweighed by the manda-
tory sentencing factors laid out in 18 U.S.C. § 3553. In partic-
ular, the district judge thought there was a “very significant”
need for deterrence in light of the violence perpetuated by the
Latin Kings throughout Hernandez’s 30-year involvement
with the gang.
Given the district judge’s evident sympathy for Hernan-
dez and recognition of the hardships his sentence would im-
pose on his family, we doubt that Hernandez could have ob-
tained a more favorable result by making the same sentencing
arguments in person rather than remotely. Whether Hernan-
dez’s circumstances warranted remote sentencing under the
CARES Act is immaterial—nothing suggests that he is worse
off for having done so. His substantial rights were unaffected,

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No. 20-3480 7
so the CARES Act omission warrants no relief on plain-error
review.
III
Hernandez further argues that the district court erred in
basing its Guidelines calculation off a base offense level of 33
for conspiracy to commit murder, see USSG § 2A1.5, instead
of a base offense level of 27 for attempted murder, see id.
§ 2A2.1(a)(2). As he sees it, the government did not provide
enough evidence to conclude—even by the preponderance of
the evidence standard applicable to sentencing determina-
tions, see United States v. Hall, 608 F.3d 340, 346 (7th Cir.
2010)—that he was responsible for conspiracy to commit mur-
der.
We review the factual findings underlying a district
court’s Guidelines calculation for clear error. United States v.
Garcia, 948 F.3d 789, 806 (7th Cir. 2020). Under the clear error
standard, we reverse only where, having reviewed the entire
record, we are left with “a firm and definite conviction that a
mistake has been made.” United States v. Ranjel, 872 F.3d 815,
818 (7th Cir. 2017).
Relying on our decision in United States v. Garcia, 754 F.3d
460 (7th Cir. 2014), Hernandez argues that the district court
applied the conspiracy to commit murder cross-reference
based solely on his membership in a gang. This won’t do, he
insists, because Garcia requires something more. But this ar-
gument rests on a skewed reading of Garcia and sharply dis-
counts the evidence that was presented against Hernandez at
sentencing.
Garcia consolidated the appeals of numerous defendants,
all of whom had been members of the Latin Kings. 754 F.3d at

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8 No. 20-3480
465. One of the defendants, a former Inca named Chavez, ar-
gued on appeal that he had been wrongly held liable for con-
spiracy to commit murder solely because of his gang mem-
bership. Id. at 481. But we concluded that wasn’t the case; in-
stead, the district court had applied the conspiracy to commit
murder cross-reference based on audio recordings in which
the defendant boasted of an attempted murder carried out by
his subordinates with his awareness. Id. Because we identified
this direct evidence—the audio recordings—as the basis for
the conspiracy liability applied in Garcia, Hernandez reasons
that such evidence should be required in his case, too.
But this confuses the sufficient with the necessary. In Gar-
cia, Chavez’s recorded boasts undoubtedly provided suffi-
cient evidence for the district court to conclude that he had
conspired to commit murder. Yet the comparatively indirect
evidence here suffices, as well.
In sentencing Hernandez, the district court relied on the
presentence report—which it was entitled to do absent some
challenge by Hernandez to the report’s contents. See United
States v. Miller, 834 F.3d 737, 743 (7th Cir. 2016). And the re-
port, which itself relied heavily on the government’s retelling
of events (also unchallenged by Hernandez), provided ample
grounds to conclude that Hernandez should be held account-
able for conspiracy to commit murder.
The PSR revealed (as was true in Garcia), that Hernandez
had, as Inca, been responsible for “implement[ing] the set of
rules and regulations contained in the gang’s constitution.”
These policies were violent in the extreme, providing that
runaway gang members should be viciously beaten and rival
gang members shot on sight. And so far as appears, Hernan-
dez took the gang’s policies seriously; the PSR concluded that,

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No. 20-3480 9
as Inca, he had “approv[ed] and order[ed] acts of violence,”
such as by directing his subordinates to perform “security”
measures that entailed standing orders to shoot rival gang
members.
Aside from Hernandez’s role as Inca in overseeing the
Latin Kings’ rules, Hernandez had also personally furthered
the gang’s murderous aims. For example, the government
submitted audio recordings in which Hernandez offered an
AR-15 rifle to other members of the Latin Kings for security
activities—activities that, as noted earlier, involved standing
orders to shoot rival gang members. Hernandez got person-
ally involved in the gang’s “security,” too. Another audio re-
cording revealed that Hernandez had previously, as a mem-
ber of the Latin Kings, shot at members of the Gangster Disci-
ples, a rival gang. And this was in addition to an incident in
which Hernandez was arrested for pointing a gun at two po-
lice officers who he believed to be rival gang members.
The PSR provided the district court with evidence that
Hernandez was not only responsible as Inca for enforcing the
Latin Kings’ violent policies, which sometimes required
shooting rival gang members, but that he had also directly
furthered those policies by offering lethal weapons to his fel-
low gang members and by personally participating in the
gang’s “security” activities. Surely this was enough for the
district court to conclude that Hernandez had conspired to
commit murder in furtherance of his gang’s racketeering ac-
tivities.
A FFIRMED

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