UNITED STATES v. HERNANDEZ GARCIA (2021)

United States Court of Appeals, Ninth Circuit.2021-03-15No. No. 20-50124

Summary · law.co

Holding. The court affirmed the sentence, finding the first challenge barred by invited error doctrine and the second challenge either harmless or unsupported.

Hernandez-Garcia appealed his sentence on two grounds: first, that the district court failed to order a presentence investigation or explain why one was unnecessary, and second, that the court relied on undisclosed information when imposing sentence. On the first issue, the court found the appeal barred by the invited error doctrine because Hernandez-Garcia was explicitly informed of his right to a presentence investigation but knowingly waived it to expedite sentencing. On the second issue, the court examined three categories of allegedly undisclosed information: past illegal reentry cases, COVID-19 considerations, and recidivism data. As to the first two categories, any procedural violation was harmless because the record showed the sentence was based on Hernandez-Garcia's criminal history and would have been identical regardless. As to recidivism information, the court concluded no violation occurred at all, since recidivism is a common-sense consideration that experienced defense counsel would routinely anticipate at sentencing.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether failure to order a presentence investigation constitutes reviewable error when the defendant waived the right
Whether undisclosed information about past illegal reentry cases and COVID-19 violated sentencing procedural rules
Whether reliance on recidivism information without disclosure required reversal

Procedural posture

Hernandez-Garcia appealed the district court's sentencing determination to the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Armando Hernandez-Garcia presents two distinct challenges to the district courts imposition of sentence. Specifically, Hernandez-Garcia contends that the district court: (1) failed to order a presentence investigation or otherwise explain on the record why such an investigation was unnecessary; and (2) relied on outside information without providing it to the parties. Because the parties are familiar with the facts, they are only recounted where necessary to understand our conclusions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons stated below, affirm.

1. Review of Hernandez-Garcias first claim is foreclosed by the doctrine of invited error. This doctrine “prevents a defendant from complaining of an error that was his own fault” by rendering it “waived and therefore unreviewable.” United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015) (internal citations omitted). To apply, the defendant must: (1) invite the error; and (2) relinquish a known right. Id. Here, both requirements are satisfied.

Without a doubt, Hernandez-Garcia enjoys the right to have a presentence investigation prepared prior to sentencing. Fed. R. Crim. P. 32(c)(1)(A). But he was specifically advised of this right and relinquished it to obtain an expedited sentencing. Accordingly, this “issue vanishes” because “the Rule 32 error, if any, was thus invited.” United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976).

2. Hernandez-Garcias second assignment of error also fails. At sentencing, the district court must “allow the parties’ attorneys to comment on ․ matters relating to an appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C). This requires “disclosure of all relevant factual information to the defendant for adversarial testing,” unless such information is merely used to establish “well-known, common sense proposition[s].” United States v. Warr, 530 F.3d 1152, 1162–63 (9th Cir. 2008) (internal citations omitted).

Accordingly, a district court violates Rule 32 when it relies on undisclosed information in imposing sentence without affording the defendant an “opportunity to respond before sentence” is imposed. United States v. Gray, 905 F.3d 1145, 1148 (9th Cir. 2018). A Rule 32 violation, however, cannot form the basis of appellate relief if it was harmless. Peguero v. United States, 526 U.S. 23, 29, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (citing Fed. R. Crim. P. 52(a)). In other words, under Rule 52(a), this Court may only afford relief if the district courts alleged Rule 32 error prejudiced Hernandez-Garcia. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Minore, 292 F.3d 1109, 1119 (9th Cir. 2002).

Hernandez-Garcias Rule 32(i)(1)(C) challenge is three-fold, asserting that the district court improperly relied on information related to: (1) past cases of illegal re-entry by other aliens; (2) COVID-19; and (3) recidivism. As to the first two categories, the Court need not determine whether the district courts ostensible reliance on this outside information violated Rule 32, because any error was harmless.

The district court carefully examined the factors found at 18 U.S.C. § 3553(a) and was clear that the basis for its sentence was Hernandez-Garcias criminal history. Consequently, even if the district court considered these undisclosed outside materials, there was no prejudice because the record reveals the sentence imposed would have been the same. In short, any error was harmless.

As to the final category, we are not convinced any Rule 32 error occurred in this instance. To the extent the district courts concerns about Hernandez-Garcias criminal history were driven by undisclosed information regarding recidivism, such information is precisely the sort of “[g]arden variety considerations ․ [that] should not generally comes as a surprise to trial lawyers who have prepared for sentencing.” Irizarry v. United States, 553 U.S. 708, 716, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008) (internal citations omitted). In other words, the district courts supposed reliance on undisclosed outside studies regarding recidivism revealed nothing more than “the well-known, common sense proposition that” prior criminality is a relevant predictor of future criminality. Warr, 530 F.3d at 1163. This is insufficient to warrant reversal.

AFFIRMED.