     Case: 10-51136   Document: 00511950565   Page: 1   Date Filed: 08/08/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                 FILED
                                                                August 8, 2012

                                 No. 10-51136                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee
v.

AARON HERNANDEZ, also known as Aaron Talamantes, also known as
Squirrel,

                                           Defendant-Appellant



                 Appeal from the United States District Court
                      for the Western District of Texas


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
GARZA, Circuit Judge:
        Defendant-Appellant Aaron Hernandez appeals his convictions and
sentence for (1) conspiracy to possess with intent to distribute cocaine and (2)
aiding and abetting the theft of government money. We affirm the convictions,
but we vacate his sentence and remand for further proceedings.
                                       I
          A Federal Bureau of Investigation (“FBI”) agent received information
from a confidential source, Lorenzo Guerra, that Hernandez was “selling
kilogram quantities of cocaine.” Guerra arranged a meeting with Hernandez at
the latter’s residence to discuss the purchase of cocaine. At the meeting,
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                                    No. 10-51136

Hernandez showed Guerra a small amount of cocaine and indicated that he
could sell him one kilogram. Hernandez told Guerra that his brother, Daniel
Hernandez (“Daniel”), had the kilogram of cocaine and that he should return to
talk to Daniel. Two days later, Guerra returned to Hernandez’s residence and
tentatively agreed to purchase one kilogram of cocaine from Hernandez for
$17,000. At this meeting, Hernandez again showed Guerra a small amount of
cocaine; he also showed Guerra a .45 caliber handgun that he had tucked in his
waistband.    Guerra finalized the $17,000 purchase price in a subsequent
telephone conversation with Daniel.
      A few days later, Guerra met Daniel in a parking lot of an apartment
complex with $17,000 in FBI funds to complete the purchase. Daniel got in
Guerra’s truck and the two of them drove to another apartment complex. After
they stopped, Daniel told Guerra to give him the money and he would bring the
cocaine back. When Guerra balked, Daniel explained that the person holding
the cocaine did not want to meet Guerra. Guerra eventually gave Daniel the
money, but Daniel took the money and fled in a waiting car.
      A grand jury returned a two-count indictment against Hernandez, his wife
Erica Carrillo, Daniel, and another person.1 The indictment charged all four
defendants with one count of conspiracy to possess with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a), 841(B)(ii) & 846.
And it charged Hernandez, Daniel, and Carrillo with aiding and abetting the
theft and conversion to their own use of $17,000 in U.S. currency belonging to
the FBI, in violation of 18 U.S.C. § 641.
      The indictment was unsealed on February 19, 2010 upon the arrest of
Hernandez, Daniel, and Carrillo. Shortly thereafter, Attorney Sergio Gonzalez
entered an appearance for Hernandez and his wife Carrillo. At a detention

      1
        The grand jury later returned a superseding indictment that did not contain any
substantive changes.

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                                  No. 10-51136

hearing for the Hernandez brothers that same day, Attorney Gonzalez revealed
that he had represented Daniel in a felony case in state court that had been
dismissed a week earlier.
      The district court eventually set a hearing to review the conflict of interest
stemming from Attorney Gonzalez’s representation of both Hernandez and his
wife. The court found that a conflict of interest existed and ordered Gonzalez to
withdraw from representation of Carrillo.
      Five days before trial, the Government moved to disqualify Attorney
Gonzalez as counsel for Hernandez based on his representation of Daniel in the
state felony matter that Gonzalez had mentioned in the detention hearing. The
Government’s motion stated that Daniel had pleaded guilty to both counts of the
indictment and that it would probably call Daniel as a witness at Hernandez’s
trial. It contended that Attorney Gonzalez would have a conflict of interest if
Daniel were called to testify because Gonzalez might have information from an
attorney/client relationship that (1) would prevent him from representing
Hernandez effectively or (2) would cause him to breach the attorney/client
privilege he owed to Daniel. The Government requested a “Garcia hearing” to
ensure a valid waiver by Hernandez of his right to representation free from any
conflict of interest. See United States v. Garcia, 517 F.2d 272, 278 (5th Cir.
1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259,
263 & n.2 (1984). Attached to its motion, the Government submitted copies of
state court documents showing that Gonzalez had represented Daniel for one
day—from February 3 to February 4, 2010, when the state felony case was
dismissed. The Government also indicated that Daniel had advised it that
Attorney Gonzalez represented him on another occasion as well.
      On the morning of the first day of trial, the district court held a hearing
prior to jury selection on the Government’s motion to disqualify Attorney
Gonzalez. At the hearing the Government acknowledged that Daniel’s prior

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                                   No. 10-51136

state case, which involved charges of felony marijuana possession, was not
related to this case. However, the Government expressed concern that it
planned to call Daniel as a witness in the instant case and that Attorney
Gonzalez might not be able to effectively cross-examine him without a conflict
of interest arising. Attorney Gonzalez responded that he had “never even spoke
with . . . Daniel” regarding the prior case; he said that he had simply “showed up
at the first hearing,” “looked at the file,” and “talked to the [prosecutor],” before
the prosecutor said, “You’re right[;] It’s a bad case[]” and dismissed the case.
Attorney Gonzalez further stated that he and Daniel “never even had an
attorney/client communication” and that “there’s nothing that I could use
adverse that I learned from him because we had never had a communication.”
Attorney Gonzalez also advised the district court that Daniel was aware that
Gonzalez was going to represent Hernandez in this case and had not voiced an
objection. The district court denied the Government’s motion to disqualify
Gonzalez.
      That afternoon, the Government renewed the motion with support from
Daniel’s attorney in this case. Daniel’s counsel argued that his client risked
being prejudiced by his former attorney’s cross-examination if he was called to
testify at trial. The district court replied that Attorney Gonzalez had explained
that “he didn’t even talk to [Daniel]” during the prior representation. Further,
the district court stated that any cross-examination of Daniel by Attorney
Gonzalez would be limited. The court then orally denied the Government’s
motion to disqualify Gonzalez a second time. The next day, the district court
issued a written order denying the Government’s motion. The district court
concluded that Attorney Gonzalez’s prior representation of Daniel did not
present a conflict of interest because (1) Daniel’s prior case was unrelated to the
current case, (2) Gonzalez’s representation of Daniel in the prior case had
unambiguously ended before his representation of Hernandez began, (3)

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                                 No. 10-51136

Gonzalez’s prior representation of Daniel was “extremely limited,” and (4)
Gonzalez had attested that he did not learn anything in his prior representation
of Daniel that he could use to harm either Hernandez or Daniel.
      Daniel did not testify at the ensuing trial, and the jury found Hernandez
guilty on both counts.
      For count 1, the cocaine conspiracy offense, the presentence report (“PSR”)
determined that Hernandez’s base offense level was 26. U.S.S.G. § 2D1.1. The
PSR then increased his base offense level by two levels for possession of a
dangerous weapon—the handgun and “two AK-47 style rifles”—giving him an
adjusted offense level of 28. Id. § 2D1.1 (b)(1). For count 2, the theft of
government money offense, the PSR determined that Hernandez’s base offense
level was 6. Id. § 2B1.1. The PSR then increased his base offense level by four
levels because the theft involved more than $10,000 and less than $30,000, id.
§ 2.B1.1(b)(1)(C), thereby giving him an adjusted offense level of 10. The PSR
used the higher of Hernandez’s two adjusted offense levels to determine his total
offense level—28—and it then added a one-level multi-count adjustment
pursuant to U.S.S.G. § 3D1.4. With a total offense level of 29 and a criminal
history category of II, Hernandez’s advisory sentencing range under the
Guidelines was 97 to 121 months, according to the PSR.
      The district court adopted the PSR and, finding no reason to depart from
the Guidelines range, sentenced him to concurrent 120-month terms of
imprisonment. The district court (1) assessed a fine in the amount of $2,500 and
a $200 special assessment and (2) rendered a money judgment of forfeiture in
the amount of $17,000. This appeal followed.
                                       II
                                       A
      First, Hernandez claims that the district court erred when it determined
that Attorney Gonzalez’s prior representation of Daniel would not present an

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                                    No. 10-51136

actual conflict of interest at trial. He contends that because Attorney Gonzales
had recently represented Daniel and had discussed the present case with
Daniel’s wife, the district court should have held a Garcia hearing to determine
whether Attorney Gonzalez had a conflict of interest and whether that conflict
would prejudice Hernandez.           Hernandez further asserts that Attorney
Gonzalez’s failure to call Daniel as a witness provides evidence of a conflict of
interest; he maintains that because Daniel was the only witness who could
corroborate Hernandez’s defense, the only explanations for Gonzalez’s decision
not to call Daniel were (1) the existence of a conflict of interest and (2) the
district court’s warning to Gonzalez not to take advantage of his prior
representation of Daniel.        Accordingly, Hernandez asks us to remand
proceedings to the district court so that it can conduct a Garcia hearing to
determine whether the conflict adversely affected Attorney Gonzalez’s
performance at trial.
      “The Sixth Amendment right to counsel includes the ‘right to
representation that is free from any conflict of interest.’” United States v. Garcia-
Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (quoting United States v. Vaquero, 997
F.2d 78, 89 (5th Cir. 1993)). “As a general rule, a conflict exists when defense
counsel allows a situation to arise that tempts a division in counsel’s loyalties.”
United States v. Burns, 526 F.3d 852, 856 (5th Cir. 2008) (citing Garcia-Jasso,
472 F.3d at 243). “If a defendant chooses to proceed with representation by
counsel who has a conflict of interest, a district court must conduct what is
commonly known as a ‘Garcia hearing’ to ensure a valid waiver by the defendant
of his Sixth Amendment right.” Garcia-Jasso, 472 F.2d at 243 (citing Garcia,
517 F.2d at 278). However, a district court only needs to “conduct a Garcia
hearing if there is an actual conflict of interest,” id. (citation omitted), as opposed
to “‘a speculative or potential’ conflict.” Burns, 526 F.3d at 856 (quoting United
States v. Infante, 404 F.3d 376, 391 (5th Cir. 2005)).             A district court’s

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                                  No. 10-51136

determination that an actual conflict did not exist is a mixed question of law and
fact, which we review de novo. Id. (citations omitted).
      To determine whether Attorney Gonzalez had an actual conflict of interest,
“we must ask whether Attorney [Gonzalez] labored under a conflict of interest,
which was not merely hypothetical, and whether that conflict adversely affected
the representation (i.e., whether it was an actual conflict). Id. at 392 (citations
omitted). Because Hernandez concedes that there is insufficient evidence in the
record to determine whether the alleged conflict adversely affected Attorney
Gonzalez’s representation, we need only decide whether the alleged conflict was
not merely hypothetical. Id.
      “Joint representation does not necessarily create a conflict of interest.”
United States v. Rico, 51 F.3d 495, 508 (5th Cir. 1995). In such situations a non-
hypothetical conflict only exists “when defense counsel is compelled to
compromise his or her duty of loyalty or zealous advocacy to the accused by
choosing between or blending the divergent or competing interests of a former
or current client.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) (citations
omitted).    Deciding “whether a disqualifying conflict exists is highly
fact-dependent.” Burns, 526 F.3d at 856 (citation omitted). We have found that
this determination depends on a number of factors, “including, . . . whether the
attorney has confidential information that is helpful to one client but harmful
to another; whether and how closely the subject matter of the multiple
representations is related; how close in time the multiple representations are
related; and whether the prior representation has been unambiguously
terminated.” Infante, 404 F.3d at 392 (citing Perillo, 205 F.3d at 798–99).
      We hold that the conflict here remained purely hypothetical. Burns, 526
F.3d at 857. First, Attorney Gonzalez represented to the district court that he
did not learn any confidential information from his brief representation of Daniel
in an unrelated state felony proceeding. While Hernandez asserts that it was

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                                  No. 10-51136

unreasonable for the district court to credit Attorney Gonzalez’s representations,
the district court reasonably found them credible due to the brevity of his prior
representation and the fact that the two proceedings were unrelated. See
Perillo, 205 F.3d at 799 (“Where, however, defense counsel’s involvement in the
prior representation was either transient or insubstantial, we have been less
inclined to find an actual conflict.”) (citation omitted).     Further, although
Attorney Gonzalez’s two relevant representations were close in time, his
representation of Daniel had unambiguously ended before his representation of
Hernandez began.       Id. at 798–799 (“Where . . . defense counsel’s prior
representation unambiguously terminated before the second representation
began, the possibility that defense counsel’s continuing obligation to his former
client will impede his representation of his current client is generally much
lower.”) (citation omitted).
      Hernandez contends that Attorney Gonzalez’s decision not to call Daniel
as a witness supports his assertion that Gonzalez’s prior representation of
Daniel created a conflict of interest. At the hearing on the Government’s motion
to disqualify, the Government argued that Hernandez might want to call Daniel
to testify regarding a statement he made to an investigator before he eventually
pleaded guilty. In the earlier statement, Daniel said that the brothers had
always planned simply to steal the money from the confidential source—a
statement that could have been used to support Hernandez’s defense that the
brothers never conspired to sell cocaine. However, given the foregoing, the
record does not support Hernandez’s contention that Attorney Gonzalez
refrained from calling Daniel to testify because of the alleged conflict. That is,
“[t]here is nothing to indicate that the failure [to call Daniel] was the result of
. . . ‘divided loyalties’ which would result in an actual conflict as opposed to a
tactical trial strategy.” Burns, 526 F.3d at 857.



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      Accordingly, because Hernandez did not establish that Attorney Gonzales
labored under a non-hypothetical conflict of interest, “we conclude that the
district court did not err in failing to conduct a Garcia hearing.” Garcia-Jasso,
472 F.3d at 245; see id. (holding that attorney did not have an actual conflict of
interest because appellant’s claims “rely on speculation and inferences that are
unsupported by the record”).
                                         B
      Second, Hernandez claims that the district court committed plain error
when it calculated his total adjusted offense level under the Sentencing
Guidelines. He asserts that the district court erroneously increased his offense
level by employing a one-level multi-count adjustment pursuant to U.S.S.G. §
3D1.4. He contends that the district court’s error increased his offense level
from 28 to 29, which, when combined with his criminal history category,
increased his advisory Guidelines range of imprisonment from 87–108 months
to 97–121 months. The district court adopted the PSR, found no reason to
depart from the Guidelines range, and sentenced Hernandez to concurrent 120-
month terms of imprisonment.
      Because Hernandez did not object to the district court’s multi-count
adjustment in the district court, we review his claim for plain error. To show
reversible plain error, Hernandez must show a clear or obvious error that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Hernandez claims that the district court committed clear error that
affected his substantial rights by sentencing him to a term of imprisonment 12
months above the top-end of the proper Guidelines range. Further, he claims
that the district court’s error seriously affected the fairness, integrity, or public

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                                       No. 10-51136

reputation of the judicial proceedings because the court intended to give him a
sentence within the Guidelines range, but due to the court’s error, gave him a
sentence one year above the top-end of the correct Guidelines range.
       As the Government concedes, the district court committed clear error by
employing a one-level multi-count adjustment to Hernandez’s total offense level
pursuant to U.S.S.G. § 3D1.4. Hernandez was clearly not eligible for a multi-
count adjustment under § 3D1.4 because his theft of government money offense
was “9 or more levels less serious” than his cocaine conspiracy offense. See
U.S.S.G. § 3D1.4(c) (providing that courts should “disregard [offenses that are]
9 or more levels less serious than the Group with the highest offense levels” for
the purposes of employing a multi-count adjustment); see also United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (holding that district court committed
clear error by committing an obvious error that caused it to impose a sentence
that resulted from its incorrect application of the Guidelines).
       In order to establish that his substantial rights were affected by this error,
Hernandez must “show a reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (per curiam).2
“[A]bsent additional evidence, a defendant has shown a reasonable probability
that he would have received a lesser sentence when (1) the district court
mistakenly calculates the wrong Guidelines range, (2) the incorrect range is
significantly higher than the true Guidelines range, and (3) the defendant is
sentenced within the incorrect range.” United States v. Mudekunye, 646 F.3d
281, 289 (5th Cir. 2011) (per curiam) (citations omitted).



       2
         “As noted recently, our court has not fully resolved whether a different
substantial-rights standard also remains in effect, i.e., ‘if the case were remanded, the trial
judge could reinstate the same sentence.’” United States v. Gaither, 434 F. App’x 393 (5th Cir.
2011) (per curiam) (citation omitted).

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                                  No. 10-51136

      In Mudekunye, we held that in cases where the correct and incorrect
Guidelines ranges overlap, but the court imposes a sentence significantly above
the top-end of the correct Guidelines range, the imposed sentence affects the
defendant’s substantial rights “where it is not apparent from the record that [the
defendant] would have received an above-Guidelines sentence.” 646 F.3d at 290
(quoting United States v. John, 597 F.3d 263, 285 (5th Cir. 2010)).
      Here, similarly to Mudekunye, the correct and incorrect Guidelines ranges
overlapped by 11 months, and the district court imposed a sentence 12 months
higher than the top-end of the correct Guidelines range. Id. (holding that the
district court’s misapplication of the Guidelines affected the defendant’s
substantial rights where the “correct and incorrect sentencing ranges
overlap[ped] by one month, [and the defendant] was sentenced well outside the
one month overlap, 19 months above the correct range”); see United States v.
Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir. 2008) (per curiam)
(vacating sentence on plain error review where the correct and incorrect
Guidelines ranges overlapped by one month and the court imposed a sentence
one month higher than the overlap); cf. Gaither, 434 F. App’x at 393–94 (holding
that Guidelines error did not warrant vacatur of defendant’s sentence on plain
error review where correct and incorrect Guidelines ranges overlapped by two
months and the court imposed a sentence six months higher than the overlap).
      Further, as in Mudekunye, there is no evidence in the record that suggests
the district court would have imposed an above-Guidelines sentence of 120
months if the district court had considered the accurate Guidelines range—87-
108 months. Mudekunye, 646 F.3d at 290 (citing John, 597 F.3d at 285). The
district court merely adopted the PSR and found no reason to depart from the
Guidelines range.
      Although the correct and erroneous Guidelines ranges overlapped more
significantly here than they did in Mudekunye, we find its reasoning persuasive.

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                                       No. 10-51136

In short, given (1) the substantial, 12-month disparity between the top-end of the
correct Guidelines range and the sentence imposed and (2) the lack of any
indication in the record that the district court would have imposed an above-
Guidelines sentence if it had considered the correct range, we conclude that
Hernandez has shown a reasonable probability “that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”
Villegas, 404 F.3d at 364. Therefore, he has demonstrated that the district
court’s error affected his substantial rights. Mudekunye, 646 F.3d at 291.3
       Because we have determined that Hernandez has satisfied the first three
elements of plain error, we must decide whether to exercise our discretion to
remand for resentencing. We may only exercise our discretion to correct the
district court’s plain error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Puckett, 556 U.S. at 135. “[U]ltimately,
whether a sentencing error seriously affects the fairness, integrity, or public
reputation of judicial proceedings is dependent upon the degree of the error and
the particular facts of the case.” John, 597 F.3d at 288.
       Although we have been “generous with remand” when employing the
fourth prong of the plain error test in the sentencing context, “we are not
convinced that the case law on this point is settled or as categorical as language
in some cases might make it seem.” United States v. Ellis, 564 F.3d 370, 378 &
n.44 (5th Cir. 2009) (collecting cases). We are also mindful of “our precedent
declining ‘to adopt a blanket rule that once prejudice is found under the [third
plain error prong], the error invariably requires correction.’” United States v.
Escalante-Reyes, — F.3d —, 2012 WL 3024195, at *7 (5th Cir. 2012) (en banc)


       3
         We take no position regarding the point at which a sentence becomes materially or
substantially above the proper Guidelines range. See John, 597 F.3d at 289. We also take no
position regarding whether additional overlap between the correct and incorrect Guidelines
ranges would affect our analysis. See United States v. Price, 516 F.3d 285, 289 n.28 (5th Cir.
2008).

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                                  No. 10-51136

(alteration in original) (quoting United States v. Reyna, 358 F.3d 344, 352 (5th
Cir.2004) (en banc)).
      Nonetheless, as in Mudekunye, we conclude that under the particular facts
of this case, “[t]he substantial disparity between the imposed sentence and the
applicable Guidelines range warrants the exercise of our discretion to correct the
error.” 646 F.3d at 291; see John, 597 F.3d at 289 (holding that it is appropriate
to exercise our discretion to vacate and remand for resentencing “when there is
no indication that the district court would have selected the sentence regardless
of the applicable Guidelines range, and the sentence imposed is based on an
erroneously calculated Guidelines range, . . . at least when the sentence is
materially or substantially above the properly calculated range”). Moreover, the
district court’s error was particularly obvious, involving a straightforward
misapplication of the plain language of the Guidelines. Cf. John, 597 F.3d at 290
(Smith J, dissenting) (“The panel majority declares this forfeited error to be
‘plain,’ although it takes five manuscript pages to explain why it was error at
all.”). Lastly, even though the record of Hernandez’s offense contains some
aggravating elements, those elements do not persuade us to refrain from
exercising our discretion to remand for resentencing under the particular facts
of this case. Cf. Gaither, 434 F. App’x at 394 (holding that offense did not
warrant remediation where record showed it “involv[ed] domestic violence,
drugs, and a firearm; a leadership role within a violent gang; and pending
charges for possessing a deadly weapon while in prison”) (citations omitted).
                                       III
      We AFFIRM Hernandez’s convictions. For the reasons stated above, we
VACATE Hernandez’s sentence and REMAND for further proceedings.




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                                         No. 10-51136

JERRY E. SMITH, Circuit Judge, dissenting.
       I respectfully dissent, although the majority correctly decides Hernandez’s
conflict-of-interest claim and properly holds that the district court committed an
obvious error that likely affected Hernandez’s substantial rights when it added
one point to the guideline calculation for a multi-count indictment under
U.S.S.G. § 3D1.4. At the fourth prong of plain-error analysis, this court should
not exercise its discretion to reverse, because in no way does the error “seriously
affect the fairness, integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks and altera-
tions omitted). The majority perpetuates this court’s unseemly habit of “being
far more permissive on plain-error review than the Supreme Court and common
sense allow.” United States v. Escalante-Reyes, No. 11-40632, 2012 WL 3024195,
at *13-17 (5th Cir. July 25, 2012) (en banc) (Smith, J., dissenting).


                                                I.
       Reversal on plain error is “exceptional,”1 “used sparingly,”2 “rare,”3 and
“difficult, as it should be,”4 reserved for only the most “egregious,”5 “serious,”6
and “grievous”7 errors. We should thus exercise our discretion to reverse only




       1
           United States v. Atkinson, 297 U.S. 157, 160 (1936).
       2
        United States v. Young, 470 U.S. 1, 15 (1985) (citing United States v. Frady, 456 U.S.
152, 163 & n.14 (1982)).
       3
           United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).
       4
           Puckett v. United States, 556 U.S. 129, 135 (2009).
       5
           Young, 470 U.S. at 15.
       6
           United States v. Padilla, 415 F.3d 211, 223-24 (1st Cir. 2005) (en banc).
       7
           United States v. Robinson, 627 F.3d 941, 956 (4th Cir. 2010).

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                                         No. 10-51136

in “blockbuster”8 cases in which the error is so flagrant that it “undermine[s] the
fundamental fairness”9 of our system and offends “core notions of justice”10 such
that “the trial judge and prosecutor [were] derelict in permitting it.”11 “An error
that warrants reversal despite the contemporaneous-objection rule is one that,
if left uncorrected, would shock the conscience of the common man, serve as a
powerful indictment against our system of justice, or seriously call into question
the competence or integrity of the district judge.”                     Id. at *16 (Smith, J.,
dissenting).
       This court has nonetheless adopted an approach that is “generous” and
“permissive,”12 reversing on plain-error review over 180 times since Olano was
decided and in over 72% of the cases in which the fourth prong was reached. Id.
at *15 (Smith, J., dissenting). This lax application of plain-error review not only
runs afoul to the Supreme Court’s directives, but also severely undermines this
court’s longstanding Contemporaneous Objection Rule, which
       ensures full development of the record, prevents strategic timing of
       objections meant to secure a second bite at the apple, gives incen-
       tives for the diligence and zealousness of trial counsel and the defen-
       dant, minimizes the sandbagging of trial courts, promotes judicial
       economy by reducing appeals and remand, and safeguards the dis-
       trict court’s role as the court of first instance in our federal system.

Id. (citations and internal quotation marks omitted). Unfortunately, the panel
majority is complicit in this “unwarranted extension” of “the Rule’s careful bal-


       8
           United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).
       9
           Young, 470 U.S. at 16.
       10
            United States v. Gonzalez-Huerta, 403 F.3d 727, 739 (10th Cir. 2005) (en banc).
       11
         United States v. Vasquez, 267 F.3d 79, 87 (2d Cir. 2001) (citations omitted); see also
Frady, 456 U.S. at 163.
       12
            United States v. Ellis, 564 F.3d 370, 378 & n.44 (5th Cir. 2009).

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                                        No. 10-51136

ancing,” Young, 470 U.S. at 15, which “encourages litigants to abuse the judicial
process and bestirs the public to ridicule it.” United States v. Johnson, 520 U.S.
461, 470 (1997) (citation omitted).


                                               II.
       Although tacitly acknowledging the importance of the fourth prong, the
majority regrettably adheres to the generous and permissive pattern of reversal
on plain-error review. Though our caselaw makes the result none too surprising,
“[t]hese holdings do not compel a similar conclusion here, however, because the
fourth prong of plain-error review is meant to be applied on a case-specific and
fact-intensive basis.”13
       It is uncontested that the district court clearly and obviously erred by add-
ing one point to Hernandez’s sentence calculation for a multi-count enhancement
under U.S.S.G. § 3D1.4. His miscalculated guideline range is 97-121 months,
when it should have been 87-108 months. He received 120 months, one year
above the top of his correctly calculated range.
       The first two prongs of plain-error review are easily met. Although there
is some question whether Hernandez’s substantial rights were affected, under
our precedent a miscalculated range that likely affected his sentence by at least
twelve months, with no evidence that the district court was willing to depart
from the guideline range, likely satisfies the third prong.14 The more difficult

       13
          United States v. Poitra, 648 F.3d 884, 890 (8th Cir. 2011) (quoting Puckett, 556 U.S.
at 142) (internal quotations and alterations omitted); see also United States v. Mudekunye, 646
F.3d 281, 301 (5th Cir. 2011) (per curiam) (Barksdale, J., dissenting); United States v. John,
597 F.3d 263, 291 (5th Cir. 2010) (Smith, J., dissenting).
       14
          See United States v. Puckett, 556 U.S. 129, 135, 142 n.4 (2009) (stating that “the error
must have affected the appellant’s substantial rights, which in the ordinary case means he
must demonstrate that it affected the outcome of the district court proceedings . . . . When the
rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been
affected is his sentence.”) (citations and quotation marks omitted); see also Mudekunye, 646
                                                                                    (continued...)

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                                      No. 10-51136

question concerns the fourth prong: whether the error seriously affects the fair-
ness, integrity or public reputation of judicial proceedings. The majority rules
that we should exercise our discretion and reverse for three principal reasons.
       First, the majority finds that our precedent supports reversal because of
the “substantial disparity between the imposed sentence and the applicable
Guidelines range” (quoting Mudekunye, 646 F.3d at 291). In Mudekunye, the
court addressed a sentence 19 months higher than the highest possible sentence
in the correct range; here, the sentence is 12 months higher than the top of the
applicable range. And in John, 597 F.3d at 285, the difference between the sen-
tence and the top of the applicable range was 21 months.
       Of course, this case presents a closer call than Mudekunye and John,
because the difference between Hernandez’s likely sentence under the correct
range and his actual sentenceSS12 monthsSSis substantially less (19 months and
21 months, respectively). Although in some cases this court has found even
smaller sentencing disparities, such as one or three months, to have met the
fourth prong,15 those decisions are unpublished and therefore not precedential.16
       The only published case cited by either side that presents a weaker case
than the instant one, yet still met the fourth prong, is United States v. Price, 518
F.3d 285 (5th Cir. 2008)SSwhere this court reversed even though the sentence
was within the correct guideline rangeSSbecause, in the court’s judgment, the
error “clearly affected the defendant’s sentence.” Id. at 290 (internal quotation
marks omitted). This court, however, has since called into question a broad

       14
         (...continued)
F.3d at 289-91.
       15
         See United States v. Carrizales-Jaramillo, 303 F. App’x 215, 218 (5th Cir. 2008);
United States v. Severin, 221 F. App’x 299, 303 (5th Cir. 2006).
       16
          Though Escalante-Reyes overturned a sentence below the correct guideline range, it
is distinguishable, because it involved Tapia error, not incorrect guideline calculation. See
Escalante-Reyes, 2012 WL 3024195, at *5-7.

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                                      No. 10-51136

reading of Price.17
       Weighing against the majority’s position, in United States v. Gaither, 434
F. App’x 393, 394 (5th Cir. 2011), this court found that a six-month difference
between the sentence and the top of the correct range did not warrant reversal
under the fourth prong, considering that the case involved “an offense involving
domestic violence, drugs, and a firearm; a leadership role within a violent gang;
and pending charges for possessing a deadly weapon while in prison.” We found
similarly in Davis that the error failed to meet the fourth prongSSeven where the
calculated range was 15-21 months, the correct range was 6-12 months, and the
sentence imposed was 24 monthsSSin part because the “sentence [was] well
within the statutory maximum and was rendered after Davis was found violat-
ing numerous terms of his supervised release and apparently planning a return
to his prior criminal activities.” Davis, 602 F.3d at 645, 650-52.
       In sum, this court’s published decisions have not found that a disparity as
small as the difference between a nine-year and a ten-year sentence is so sub-
stantial as seriously to affect the fairness or integrity of the judicial system.
Indeed, in Davis we found that a twelve-month disparity that consisted of a lar-
ger proportion of the sentence than in the instant case did not warrant reversal,
albeit in a case in which the district court had upwardly departed. Nevertheless,
as stated before, these numbers alone should not determine whether we should
exercise our discretion, because the inquiry is fact-intensive and case-sensitive,
so “we are not tethered to what other panels of this court have done in deciding
whether to exercise their discretion in other cases, similar or not.” John, 597
F.3d at 291 (Smith, J., dissenting).
       Second, the majority justifies reversal under the fourth prong because the


       17
         See Davis, 602 F.3d at 651 n.12 (advising that “we should resist the temptation to
overread Price to categorically require remand wherever a reasonable probability of a lesser
sentence is found”).

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                                       No. 10-51136

error was particularly obvious. Though the obviousness of the error may weigh
in favor of reversal on the fourth prong in some cases,18 the more obvious the
error, the more concerning it is that neither the defendant nor his counsel both-
ered to take the time to review the PSR carefully and object to a mistake that
affects the sentence.
      Finally, the majority justifies reversal because, “even though the record
of Hernandez’s offense contains some aggravating elements, those elements do
not persuade us to refrain from exercising our discretion to remand for resen-
tencing under the particular facts of this case.” “But the majority’s approach
turns the fourth prong on its head.” Escalante-Reyes, 2012 WL 3024195, at *19
(Smith, J., dissenting). It makes remediation the norm that must be otherwise
precluded by a showing of aggravating elements rather than upholding the sen-
tence unless the defendant “can show a particularly sympathetic case in which
the demands of justice so seriously undermine the integrity of our system that
we are willing to depart from our well-established procedure to correct it.” Id.
The majority thus repeats the common mistake of “presum[ing] plain error
unless the prevailing party can prove otherwise,” id., when the Supreme Court
has held, to the contrary, that the burden of proving the fourth prong is on the
party seeking reversal, United States v. Vonn, 535 U.S. 55, 63 (2002). Further,
as demonstrated below, the majority is factually incorrect: The aggravating
aspects of Hernandez’s offense reveal that his sentence does not offend “core
notions of justice.” Gonzalez-Huerta, 403 F.3d at 739.
      In this fact-intensive inquiry, we need to review the salient facts with care:
Lorenzo Guerra, a confidential informant to the FBI, learned from Juan Rosales
that Hernandez was selling large amounts of cocaine. Rosales stated that his
aunt could bribe a Border Patrol agent to smuggle any amount of drugs Guerra


      18
           See Escalante-Reyes, 2012 WL 3024195, at *20 n.25 (Smith, J., dissenting).

                                             19
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                                  No. 10-51136

wanted to purchase. Guerra visited Hernandez at Hernandez’s house, where one
of Hernandez’s customers showed Guerra an ounce of cocaine he had recently
purchased from Hernandez. Hernandez then asked a six-year-old girl to retrieve
another ounce of cocaine from a back room to show Guerra, informing him that
he could sell Guerra as much cocaine as he wanted to buy, but Guerra only
agreed to buy one kilogram.
      A couple of days later, Guerra again spoke to Rosales, who asked whether
he was sure he wanted to buy only one kilo. Guerra responded that if the first
kilo was good, he would consider buying five or sixSSa statement he repeated to
Hernandez’s brother. Guerra met a second time with Hernandez, who showed
him an additional one-ounce pack of cocaine, a .45 Ruger semi-automatic hand-
gun, and two AK-47 assault rifles, explaining that he also could sell Guerra simi-
lar assault rifles and handguns. According to the PSR, which was adopted in full
by the district court, “Hernandez claimed to have a contact that could steal guns
directly from a manufacturer in Amarillo, Texas. Hernandez further stated he
had just recently sent thirty stolen AR-15-style rifles to Ciudad Juarez, Mexico,
to friends that were responsible for causing ‘all the mess’ in Ciudad Juarez.”
      The next week, Guerra met with Hernandez’s brother, Daniel, to complete
the transaction: one kilogram of cocaine for $17,000. When Guerra handed over
the money, which was provided by the FBI, Daniel entered a waiting car and
absconded without handing over the cocaine. Later, Guerra spoke to a neighbor
connected to the drug-smuggling community, who informed him that Hernandez
owed a Mexican drug cartel $150,000 and “was stealing money from whomever
they could to pay their debt,” doing “anything to steal money, including murder.”
Before he was arrested, Hernandez had numerous conversations with Guerra to
smooth things over, claiming that Daniel should not have stolen the money.
After arrest, however, Hernandez admitted to being the architect of the larcen-
ous scheme.

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                                       No. 10-51136

       This is not Hernandez’s first run-in with the law. In 1994, he was con-
victed of burglarizing a vehicle and in 2004 of stealing thousands of dollars
worth of merchandise and engaging in organized crime. He has also had numer-
ous other charges filed against him, including possession of cocaine and mari-
huana, unlawfully carrying a weapon, harassment, theft, and disorderly conduct.
As a result, Hernandez had a criminal history category of II, which, combined
with an offense level of 29, yielded a guideline range of 97-121 months. The sen-
tence was 120 months. Because the one-point multi-count enhancement was
erroneously applied, the offense level should have been 28, resulting in a range
of 87-108 months. The statutory maximum for the cocaine offense of which Her-
nandez was convicted is 40 years. 21 U.S.C. § 241(b)(1)(B).
       Considering these factsSS(1) Hernandez’s desire to sell Guerra as much
cocaine as he wanted,19 (2) a conspiracy that may have involved bribing a federal
agent, (3) Hernandez’s use of a six-year old girl in committing the offense, (4) his
possession and attempted sale of assault rifles, (5) his admitted connection with
the horrific violence in Ciudad Juarez, (6) a sentence well below the statutory
maximum,20 and (7) his pattern of criminal conductSSthe mistaken addition of
one to the offense level, which increased the advised sentence by just 10%, from
nine years to tenSSdoes not seriously affect the fairness, integrity, or public repu-
tation of judicial proceedings. Judge Briones was not so incompetent or caprici-


       19
          Had, for example, Hernandez continued in the conspiracy and tried to sell Guerra five
or six kilograms of cocaine, his base offense level would have been six points higher. U.S.S.G.
§ 2D1.1(c)(4). Indeed, if Hernandez had attempted to sell that much cocaine, his statutory
minimum sentence would have been ten years. See 21 U.S.C. § 241(b)(1)(A).
       20
          See Davis, 602 F.3d at 651 (“On this record, we decline to conclude that the district
court’s imposition of a sentence of 24 months of imprisonment and two years of supervised
releaseSSparticularly where a statutory maximum of 36 months of imprisonment and two
years of supervised release was an available punishmentSSseriously affects the fairness, integ-
rity or public reputation of judicial proceedings.”) (citation, internal quotation marks, and
alterations omitted).


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                                  No. 10-51136

ous as to have committed a dereliction of his duties by imposing this sentence,
nor was
      this unpreserved, forfeited error so particularly egregious, grievous,
      and serious, and this case so rare and exceptional, that [I am] will-
      ing to abrogate our most basic and longstanding rules of procedure
      to correct it because it generally undermines the fundamental fair-
      ness of the courts and offends core notions of justice.


Escalante-Reyes, 2012 WL 3024195, at *20 (citations and internal quotation
marks omitted) (Smith, J., dissenting).
      The majority should not have exercised its discretion to reverse on the
fourth prong. The sentence should be affirmed, so I respectfully dissent.




                                       22
