                          In the
United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 01-3239
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

JUAN CARLOS HERNANDEZ,
                                      Defendant-Appellant.
                       ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
      No. 00-CR-113-C-01—Barbara B. Crabb, Chief Judge.
                       ____________
   ARGUED APRIL 11, 2002—DECIDED NOVEMBER 4, 2002
                     ____________


 Before CUDAHY, DIANE P. WOOD, and EVANS, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. Juan Carlos Hernandez
was a methamphetamine dealer who was caught on a
surveillance videotape picking up a substantial sum of
money in connection with his drug trade. He pleaded guilty
to Count One of a two-count indictment, in which he had
been charged with conspiring to distribute in excess of
500 grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count One), and distributing in ex-
cess of 50 grams of methamphetamine in violation of 21
U.S.C. § 841(a)(1) (Count Two). He received a sentence
of 360 months, which included a two-point Guidelines
enhancement for his role as a leader, a rejected three-
2                                             No. 01-3239

point downward adjustment for acceptance of responsibil-
ity, and classification as a career offender. The district
court overruled Hernandez’s objections to these three fac-
tors. He has renewed his challenges on appeal, but find-
ing no error in the district court’s rulings, we affirm his
sentence.


                            I
   The story of the drug dealings that got Hernandez in
trouble begins with Raymond Orr, a resident of Superior,
Wisconsin, who sold methamphetamine in that area. In-
itially, Orr used a man named Jerry as his supplier, but
after he received “junk” from Jerry, he decided that he
needed to make a change. Shortly thereafter, Orr was
referred to a team of two alternate suppliers, whom he
described as “Mexican looking” men. The older of the two
turned out to be Hernandez; the younger was Milton
Gonzales. The evidence indicated that Orr spoke no Span-
ish, and that Hernandez’s English was limited; Gonzales
served as an interpreter for the other two. Hernandez
also used Gonzales as his driver, paying him $500 per trip
for his services.
  Orr had a revolving credit arrangement with Hernandez,
whereby Hernandez and Gonzales would bring metham-
phetamine to Orr, and Orr would pay them the money
for the prior week’s delivery. Normally, Hernandez and
Gonzales delivered approximately ½ pound of methamphet-
amine to Orr, but on one occasion they gave him 2 ½
pounds. The three had a regular meeting Sunday evenings
around 8:00 p.m.
  In early November 2000, Orr was caught. The police
obtained and executed a search warrant for his residence,
but when they showed up Orr agreed immediately to
cooperate. He showed them where he had stored 0.5
grams of methamphetamine and where he had buried a
No. 01-3239                                              3

large quantity of the drug that he had obtained at an
earlier time from Hernandez. Orr also agreed to cooper-
ate in the police effort to catch his suppliers. As part of
that cooperation, he allowed the police to install micro-
phones and cameras in his garage so that they could
monitor his next meeting with Hernandez and Gonzales.
  The Sunday after Orr’s home was searched, Hernandez
and Gonzales showed up as usual around 8:00 p.m. to pick
up approximately $10,000 from Orr. Gonzales drove to
Orr’s home. Most of what occurred next was captured on a
videotape. The three met in the garage, but Hernandez did
not appear to say very much. Gonzales carried on a con-
versation with Orr, in keeping with his role as Hernandez’s
helper. After Orr delivered the money, Hernandez and
Gonzales counted it and tried to leave Orr’s residence.
They were intercepted by the police. Although Hernandez
tried to throw the money away, the police were too fast
for him, and they arrested him immediately.


                            II
  On March 31, 2001, Hernandez pleaded guilty to the
conspiracy count. Although he made some comments
that caused the district court to explore his genuine will-
ingness to plead guilty, in the end the court found that
he was indeed entering his plea knowingly and volun-
tarily, commenting that she was “satisfied that the gov-
ernment could prove the factual basis for the plea, and
that you wish to enter a plea of guilty even though you
have some reservations about your own guilt for the
amount of methamphetamine.” Before this court, Hernan-
dez has not made any argument that he should have
been permitted to withdraw the guilty plea; we therefore
have no need to consider any such possibility. More im-
portantly, his plea of guilty represents his sworn state-
ment that he was indeed conspiring to deal in more than
4                                               No. 01-3239

500 grams of methamphetamine, and he is thus bound
to that fact.
  After accepting the guilty plea, the district court ordered
the preparation of a Presentencing Report (PSR). Her-
nandez cooperated with the probation officer to a cer-
tain degree, but he also furnished a written statement
of his guilt in which he claimed that he did not know
what kind of illegal drug he was transporting with Gon-
zales, and he claimed that he was paid less than $1,000
to accompany Gonzales to Superior. Based on the state-
ments in the letter, the probation officer recommended
that Hernandez should not receive any reduction in his
sentence for acceptance of responsibility under U.S.S.G.
§ 3E1.1. The probation officer noted that Hernandez’s
statements were inconsistent with those of Orr and Gon-
zales, and that the videotape also belied Hernandez’s
claims.
  At the sentencing hearing, Orr and Gonzales testified
that Hernandez was the one in charge of the operation.
The district court considered that testimony and viewed
the videotape, and concluded that “it’s very clear that Mr.
Hernandez was the leader of this escapade.” Hernandez’s
denials not only helped to influence the judge not to
give him the acceptance of responsibility downward ad-
justment; they also persuaded her that she should en-
hance his offense level by two under § 3B1.1(c). On the
latter point, the judge observed that “Mr. Hernandez
was the one who decided where they would go. He was the
one that knew where the customer lived, he was the one
that gave directions, he was the one that kept the bulk
of the money, and he was the one that supplied the meth-
amphetamine.” In addition, the court accepted the recom-
mendation in the PSR that Hernandez was a career of-
fender for purposes of § 4B1.1. The net result was that
Hernandez had an offense level of 37, and a criminal his-
tory category of VI, which produced a sentencing range
No. 01-3239                                               5

of 360 months to life. The court sentenced him to the bot-
tom of that range, 360 months, to be followed by five
years’ supervised release.


                            III
   Hernandez claims that all three sentencing decisions
of the district court—that is, to treat him as a career
offender, to enhance his offense level by two for his super-
visory role, and to deny a three-level downward adjust-
ment for acceptance of responsibility—were error. We
review the latter two only for clear error. See United
States v. Matthews, 222 F.3d 305, 307 (7th Cir. 2000) (su-
pervisory role); United States v. Herrera-Ordones, 190 F.3d
504, 511 (7th Cir. 1999) (acceptance of responsibility).
To the extent that the career offender determination re-
flected a legal interpretation of the Guidelines, we review
that de novo. United States v. Taylor, 135 F.3d 478, 481
(7th Cir. 1998).


  A. Career Offender
  We consider first whether Hernandez was properly clas-
sified as a career offender for purposes of § 4B1.1. Accord-
ing to that section:
    a defendant is a career offender if (1) the defendant
    was at least eighteen years old at the time the defen-
    dant committed the instant offense of conviction, (2)
    the instant offense of conviction is a felony that is
    either a crime of violence or a controlled substance
    offense, and (3) the defendant has at least two prior
    felony convictions of either a crime of violence or a
    controlled substance offense.
Hernandez does not dispute that he was over 18 at the
time of the offense of conviction (according to the court’s
6                                                No. 01-3239

judgment form, he was born in 1970). Nor can he dispute
that the “instant offense of conviction” falls within Part 2,
as it is plainly a felony and a controlled substance crime.
  What he argues is that the two prior felony convictions
on which the district court relied should not have been
treated as crimes of violence or controlled substance
offenses for purposes of Part 3. The first prior conviction
was a June 22, 1989 offense for possession of cocaine, for
which Hernandez was sentenced on July 8, 1998, to one
year in jail and three years’ probation. Hernandez con-
ceded at the sentencing hearing in the present case that
this prior conviction was for possession with intent to sell.
The second prior conviction was a 1997 California con-
viction for involuntary manslaughter to which Hernandez
pleaded guilty, that arose out of a brawl outside a club
in which a bouncer was accidentally shot and killed.
Hernandez received a sentence of 109 days in jail for
that offense. Hernandez urged the district court to disre-
gard the cocaine offense because it was nearly 10 years old
when he was sentenced and involved very small amounts
of the drug; he attempted to minimize the involuntary
manslaughter conviction as not really involving violence
because it was involuntary manslaughter and no one in-
tended that death should result.
  In our view, the district court properly relied on both
prior convictions. The cocaine offense was, as Hernandez
admitted, for possession with intent to distribute, and
there can be no doubt that this falls under the definition
used by § 4B1.1. See, e.g., U.S.S.G. § 4A1.2(e); United States
v. Pearce, 191 F.3d 488, 498 (4th Cir. 1999); United States
v. Tejada, 146 F.3d 84, 87 (2d Cir. 1998). While not all
involuntary manslaughter convictions are necessarily
crimes of violence, compare Bazan-Reyes v. INS, 256 F.3d
600, 609 (7th Cir. 2001) (immigration context), we have
noted that reckless conduct may properly be character-
ized as a crime of violence if it presents “a serious poten-
No. 01-3239                                               7

tial risk of physical injury to another.” United States v.
Rutherford, 54 F.3d 370, 374 (7th Cir. 1995). The district
court had before it facts that showed that Hernandez had
grabbed from the bouncer the gun that was later used
to kill him. On these facts, the court concluded that he
thereby had taken action “almost destined to lead to seri-
ous injury or death if he intended to use it to fend off
his pursuers.” (Hernandez does not argue that the court
should not have looked at those underlying facts; he
claims instead that they do not add up to a violent situa-
tion. We thus have no occasion to decide whether this
was a situation in which reference to those facts was
proper.) We conclude that the district court properly clas-
sified Hernandez as a career offender.


  B. Acceptance of Responsibility
   Hernandez also urges that he cooperated so fully with
law enforcement authorities after his arrest that it was
clear error for the district court to deny the three-level
acceptance of responsibility adjustment provided by
§ 3E1.1. He admitted what he calls the “salient” facts
that supported Count One of the indictment, and his plea
of guilty provided “significant evidence” of his acceptance
of responsibility. That may be true, but the court was
not obliged to apply § 3E1.1 just because he pleaded guilty.
The court gave two independent reasons for its decision:
first, the letter Hernandez wrote to which we referred
earlier was not fully honest and denied relevant con-
duct (such as whether Hernandez knew that the drugs
were methamphetamines, and how much money he was
going to receive), and second, that he was denying rele-
vant conduct when he insisted that he was not the per-
son in charge, as the videotape illustrated. The first of
these reasons is enough to support the denial of the ad-
justment for acceptance of responsibility. The second is
8                                                No. 01-3239

intertwined with his argument that his offense level should
not have been increased for his supervisory role. As we
explain below, the district court did not commit clear
error on this point either, and thus it was entitled to re-
gard his denials as evidence of a lack of full acceptance
of responsibility.


    C. Supervisory Role
  Hernandez’s appeal on this point relies heavily on what
he argues is the ambiguous nature of the videotape, to
which the court expressly referred when it imposed this
adjustment and refused to grant the acceptance of respon-
sibility break. We have viewed the videotape, and we
agree with Hernandez that it is hard to draw much of
an inference from it about who was in charge (Hernan-
dez or Gonzales, or perhaps even Orr) from the videotape
standing alone. Hernandez’s version of the facts was that
Gonzales was the leader, and Hernandez (who stood about
5’10” and was a hefty 250 pounds) was the “enforcer” for
Gonzales. The problem for him is that both Gonzales and
Orr testified that it was Hernandez who was the lead-
er and Gonzales who was the assistant taking orders.
Hernandez thinks that the district court should not
have accepted their testimony, but the district court was
well aware of the incentives to lie that Gonzales and
Orr might have had, and it was well within its rights to
credit their testimony nevertheless. There is certainly
nothing in the videotape that contradicts their testimony;
it is quite consistent with their version, in that it shows
Hernandez speaking to Gonzales in Spanish, and then
Gonzales translating for Orr, just as they said. Thus, even
though we agree that the videotape standing alone would
probably not be enough, the district court had direct
testimony that supported the enhancement. We cannot
find clear error in its decision to rely on that testimony. We
No. 01-3239                                              9

note as well that it is enough for purposes of the enhance-
ment Hernandez received to show that the defendant di-
rected one other person. See U.S.S.G. § 3B1.1(c); United
States v. Sierre, 188 F.3d 798, 803 (7th Cir. 1999).


                            IV
  Hernandez pleaded guilty to the charge of participat-
ing in a conspiracy to distribute a large amount of meth-
amphetamine, and he received a lengthy sentence for
his crime. We find no error in any of the district court’s
sentencing determinations, and we thus AFFIRM its judg-
ment.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




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