                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________            FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-13052         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        APRIL 19, 2011
                                 ________________________        JOHN LEY
                                                                   CLERK
                          D.C. Docket No. 1:09-cr-00303-ODE-RGV-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

JUAN HERNANDEZ,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                       (April 19, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

         Juan Hernandez appeals his conviction for using a facility of interstate

commerce with the intent that murder–for–hire be committed, in violation of 18
U.S.C. § 1958. Hernandez’s sole argument on appeal is that the evidence was

insufficient to support his conviction.

      “We review a district court’s denial of a motion for a judgment of acquittal

de novo.” United States v. DuBose, 598 F.3d 726, 729 (11th Cir. 2010). “In

reviewing the sufficiency of the evidence underlying the conviction, we consider

the evidence in the light most favorable to the government, with all inferences and

credibility choices drawn in the government’s favor.” Id. (citation omitted). In

order to obtain a conviction under § 1958, “the government must prove that the

defendant: (1) used or caused another to use any facility of interstate or foreign

commerce; (2) with the intent that a murder be committed; (3) as consideration for

a promise or agreement to pay anything of pecuniary value.” United States v.

Preacher, 631 F.3d 1201, 1203 (11th Cir. 2011).

      In this case, Hernandez used his cellular telephone to instruct an undercover

officer—posing as a hired hit man—to kill another individual. After that

telephone conversation, Hernandez also participated in several other similar

in–person conversations, but his crime was complete after that first call. Id. at

1204 (“The first time that Preacher used his cell phone to communicate his desire

that the victim be killed for money, he violated § 1958.”). Hernandez argues that

he revoked his requisite intent by informing the undercover officers (posing as hit

                                          2
men) during their final meeting that he wanted them only to harm, but not kill, the

individual. This argument, however, is squarely foreclosed by our decision in

Preacher, decided after the briefing in this case was completed. In that case, we

held that, “once the defendant uses an instrument of interstate commerce with the

intent that a murder–for–hire be committed, the crime is completed,” and it

therefore “can no longer be abandoned.” Id. at 1203–04. Thus, even assuming

arguendo that Hernandez later sought to call off the hit, that would not render the

evidence insufficient to support his conviction. Accordingly, we affirm.

      AFFIRMED.




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