     Case: 14-11080      Document: 00512998587         Page: 1    Date Filed: 04/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-11080                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    April 8, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee,            Clerk
v.

FREDERICK HERNANDEZ,

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:14-CR-18-1


Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Frederick Hernandez pled guilty to making false
statements and aiding and abetting in violation of 18 U.S.C. §§ 1001 & 1002
after he was charged in connection with an investigation that took place after
an inmate committed suicide at the federal correctional center where he was




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 14-11080
employed as a correctional officer. 1 On appeal, he challenges the sentence
imposed by the district court following his guilty plea conviction. We affirm.
                I. FACTS & PROCEDURAL BACKGROUND
      Hernandez was employed as a correctional officer (“CO”) at the Big
Spring Correctional Center (“BSCC”) in Big Spring, Texas from 1999 until
August 2012. The facility had a Special Housing Unit (“SHU”) that was used
to house high-risk inmates under administrative detention and disciplinary
segregation. Due to the nature of the high-risk inmates housed in the SHU,
the COs assigned to the unit had additional duties, including documenting in
writing that they had conducted random safety checks every 30 minutes during
their shifts, with notations for any unusual activity or reasons if one or more
of the rounds could not be conducted. Formal inmate counts and fire and safety
checks of the unit were to also be conducted several times during a 12-hour
shift and documented in writing. The COs assigned to the SHU were also
required to sign Post Orders Quarterly Signature Sheets, which confirmed that
they had read and understood the specific requirements for working with the
high-risk inmates housed in the SHU.
      Inmate Luis Bent was housed in the SHU when he committed suicide in
his cell on August 23, 2012. Prior to his death, Bent was transferred upon his
own request to the SHU on August 21, 2012. On August 22, 2012, Bent was
evaluated by medical personnel. According to the progress notes taken at that
time, Bent’s mental state had deteriorated significantly since his last
evaluation a week prior on August 15, 2012. Bent’s August 15th evaluation
indicated that his sleep, mood, energy and appetite were all “good” and



      1 Frederick Hernandez’s term of imprisonment is scheduled to be completed on August
25, 2015. As such, Hernandez filed a motion to expedite consideration of his appeal on
January 26, 2015. This court granted the motion on January 30, 2015.

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                                No. 14-11080
“normal.” Bent’s August 22nd evaluation, which took place at 1:20 p.m. the
day after his transfer to the SHU, indicated that he was paranoid, rambling,
and that he had “[l]oosening of associations, poor judgment, poor insight; no
suicidal thoughts, no homicidal thoughts[.]” (emphasis in original). Although
the record indicates that some of the COs were generally aware of Bent’s
medical evaluation, there is nothing in the record indicating that Hernandez
or any of other the COs reviewed the August 22nd progress notes, nor have
they claimed to have reviewed the progress notes.
      CO Joey Rosas worked in the SHU from 8:00 p.m. to 11:45 p.m. on
August 22, 2012.     Rosas stated in subsequent investigations that he had
expressed concerns about Bent’s mental state prior to Bent’s suicide. He also
stated that he was personally told when he arrived for his August 22nd shift
that Bent had been evaluated by medical personnel earlier that day
(approximately 1:20 p.m.) who had determined at that time that he was
“thrown off” but “okay.”
      Hernandez also reported for his shift that day at 8:00 p.m. and was
assigned to work in the control room while other officers were assigned to
conduct rounds and patrol the perimeter. Hernandez stated that when he and
the other officers arrived for their shifts, the COs from the previous shift
informed them that Bent had been behaving strangely and acting “crazy”
during shift change, which was several hours after his medical evaluation
when it was reported that he was “okay.” The COs were also informed that
Bent was reportedly acting “suicidal” and holding up signs in his cell door
which read “DEA,” “death,” and “help.”
      CO Christopher Moore began his shift just after midnight at 12:15 a.m.
on August 23, 2012. He stated that, while he was in the control room where
Hernandez was assigned to work with other correctional officers, they


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discussed a prior suicide attempt which had occurred earlier that month in the
SHU.
       During the course of Hernandez’s shift, he conducted a mandatory move
of inmates from one cell to another, a procedure carried out every 21 days.
After moving the inmates, Hernandez provided them with supplies to clean
their cells. Lights in the SHU were turned off at 11:00 p.m. While the lights
were off in the SHU, the COs completed their required paperwork.           The
paperwork included SHU Control Log forms initialed and submitted by
Hernandez indicating that official inmate counts had been conducted at 12:01
a.m., 3:00 a.m., and 5:00 a.m. Hernandez also initialed and submitted forms
signed by the other COs assigned to that shift indicating that each required
30-minute safety check had been conducted.
       The lights were not turned on again until Hernandez turned them on at
5:26 a.m. on August 23, 2012. Almost immediately thereafter, Hernandez was
notified that Bent had been found dead in his cell, hanging from a bed sheet.
Hernandez reported the incident to the main control center, notified the
medical department, and requested 911 emergency services. Bent was then
transported to Scenic Mountain Hospital in Big Spring, Texas where he was
pronounced dead. The cause of death was determined at that time to be
suicide.
       An investigation commenced into the events prior to Bent’s death,
focusing on the 12-hour shift during which Hernandez and the other COs
worked, beginning on August 22 and ending on August 23, 2012. Ultimately,
Hernandez admitted to entering false information on the forms indicating that
the official inmate counts had been conducted. He also admitted to initialing
and submitting the falsified reports compiled and signed by the other COs
indicating that they had conducted the mandatory 30-minute safety checks, 24
of which were required to be performed during each 12-hour shift. In total, the
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investigation revealed that not a single 30-minute safety check or formal
inmate count was conducted during Hernandez’s shift, which amounted to
dozens of falsified log entries showing that the checks and counts had been
performed.   Hernandez and the other COs admitted that the practice of
falsifying the forms to indicate that the safety checks and formal inmate counts
had been conducted was a common, long-standing practice among the officers
working in the SHU. Hernandez stated that the practice of falsifying forms
was in part a result of staff shortages, 12-hour shifts, and the assignment of
officers to the SHU who were not familiar with working there. Hernandez and
the other COs connected to the incident were terminated.
      Hernandez and the other officers were charged in a 7-count indictment
for making false statements and aiding and abetting, based on having signed
and submitted falsified SHU Control Log forms and the falsified 30-minute
safety check forms. Pursuant to a written plea agreement, Hernandez pled
guilty to Count 7 of the 7-count indictment, which adjudged him guilty of
violating 18 U.S.C. §§ 1001 & 1002false statements and aiding and
abettingon account of having signed and submitted to the Department of
Justice the falsified SHU Control Log form certifying that the mandatory
formal inmate counts had been conducted during his shift. In accordance with
his plea agreement, Hernandez waived his right to appeal his conviction but
reserved the right to directly appeal “any issue arising from sentencing.” The
district court accepted the plea agreement and entered judgment in accordance
therewith.
      The presentence investigation report (“PSR”) recommended a base
offense level of 6, with an increase to level 14 pursuant to U.S.S.G.
§ 2B1.1(b)(15)(A) for an offense that involved “the conscious or reckless risk of
death or serious bodily injury.”     A subtraction of 2 levels for acceptance of
responsibility resulted in a total offense level of 12. Hernandez also had a
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                                   No. 14-11080
criminal history category of I. This produced an advisory guidelines range of
10 to 16 months’ imprisonment.
      Hernandez objected to the “conscious or reckless risk” enhancement,
arguing that that the legal definition of “reckless” required that he consciously
disregard a known risk and he was not aware of Bent’s suicidal intent. The
PSR Addendum maintained that Hernandez disregarded specific policies set
forth for the care and custody of high-risk inmates housed in the SHU and
information regarding Bent’s mental state, including statements from other
officers indicating that he was acting “crazy” and “suicidal” hours before he
committed suicide in his cell.        The Addendum further reasoned that
Hernandez’s “failure to perform the duties required of [his position], which
might produce death and was reckless, resulted in the death of an inmate
known to be a risk for suicide.”
      Overruling Hernandez’s objection to the enhancement and adopting the
findings of the PSR and PSR Addendum, the district court sentenced him to 10
months’ imprisonment, stating that “it adequately address[es] the sentencing
objectives of punishment and deterrence.” Hernandez was also sentenced to
two years of supervised release following the completion of his sentence and
payment of a mandatory special assessment.
      Hernandez is currently serving his 10-month prison sentence and has
filed this appeal.
                              II. DISCUSSION
      It is undisputed that Hernandez preserved his challenge to the
application of the sentencing enhancement under U.S.S.G. § 2B1.1(b)(15)(A).
On appeal, Hernandez asserts two primary arguments with respect to the
sentencing enhancement. First, he contends that the district court erred by
interpreting the enhancement as requiring only objective knowledge by the
defendant of the risk of death or serious bodily injury, rather than subjective
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                                  No. 14-11080
knowledge of the risk. Second, he argues that the district court erred in finding
that he should have known that inmate Bent presented a risk of suicide. We
find these arguments unpersuasive.
      A. Standard of Review
      “This court reviews the application of the sentencing guidelines de novo
and reviews the district court’s findings of fact for clear error.” See United
States v. Garcia-Guerrero, 313 F.3d 892, 895 (5th Cir. 2002) (citation omitted).
“A factual finding is not clearly erroneous as long as it is plausible in light of
the record as a whole.” See United States v. Duncan, 191 F.3d 569, 575 (1999)
(citation omitted). “[T]his court will uphold a sentence unless it was imposed
in violation of law or as a result of an incorrect application of the sentencing
guidelines or it is outside the range of the applicable guideline and is
unreasonable.” Garcia-Guerrero, 313 F.3d at 895 (citation omitted).
      B. Analysis
      The U.S. Sentencing Guidelines provide under Section 2B1.1(b)(15)(A)
that, if the offense at issue involved “the conscious or reckless risk of death or
seriously bodily injury,” then “increase to level 14.”             See U.S.S.G.
§ 2B1.1(b)(15)(A). Consequently, the primary issue in these proceedings is
whether the sentencing enhancement applied by the district court required
Hernandez to have subjective or objective knowledge of the risk of death or
serious bodily injury. As noted by both parties, the Guidelines do not define
“conscious or reckless risk of death or serious bodily injury,” and the
application notes do not mention the provision. Further, this court has not
ruled on this issue before.
      Several of our sister circuits, however, have ruled on this issue. The
majority of those circuits have held that the Government is not required to
prove that the defendant was subjectively aware of the risk, but rather only
that the defendant was objectively aware of the risk, i.e., that the risk “would
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                                  No. 14-11080
have been obvious to a reasonable person.” See United States v. Maestas, 642
F.3d 1315, 1321 (10th Cir. 2011) (reasoning that “recklessness is generally an
objective standard” and that “a defendant’s conduct involves a conscious risk if
the defendant was subjectively aware” of the risk and “a defendant’s conduct
involves a reckless risk if the risk . . . would have been obvious to a reasonable
person.”); United States v. Lucien, 347 F.3d 45, 56 (2nd Cir. 2003) (determining
that the Ninth Circuit’s “conclusion that a defendant does not have to
subjectively know that his or her conduct created a serious bodily risk, is
correct.”); United States v. Johansson, 249 F.3d 848, 859 (9th Cir. 2001) (“We
do not believe that a defendant can escape the application of the serious risk
of injury enhancement by claiming that he was not aware that his conduct
created a serious risk, that is, a defendant does not have to subjectively know
that his conduct created the risk.”).
      These circuits consistently reject the Eight Circuit’s holding in United
States v. McCord, Inc., which adopts the Guideline’s involuntary manslaughter
definition of “reckless” as “a situation in which the defendant was aware of the
risk created by his conduct.” 143 F.3d 1095, 1098 (8th Cir. 1998) (citation
omitted). A primary reason behind their rejections of this definition is that it
renders the distinction between “conscious” and “reckless” meaningless, which
is nonsensical in light of the Section’s disjunctive phrasing, i.e., “conscious or
reckless risk.” See Maestas, 642 F.3d at 1321; Johansson, 249 F.3d at 858;
Lucien, 347 F.3d at 56.
      The facts of this case, however, do not require that we decide today
whether the enhancement applied by the district court required that
Hernandez have subjective as opposed to objective knowledge of the risk of
death or serious bodily injury. The PSR and PSR Addendum, the remainder
of the record, and Hernandez’s own admissions indicate that he was
subjectively aware of the risk of death or serious bodily injury. Specifically,
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Hernandez conceded that when he and the other COs reported to begin their
8:00 p.m. shifts, they were told by the officers on the prior shift that Bent was
acting “crazy” and “suicidal” and had been holding up signs in his cell door that
read “death” and “help.”
         On appeal, Hernandez points to the medical evaluation notes taken by
prison medical personnel the day prior to Bent’s suicide. These progress notes,
however, have no bearing on Hernandez’s subjective knowledge of the risk of
suicide presented by Bent when he falsified the reports for his 12-hour shift on
August 22nd through 23rd.        According to the record, it was Rosasnot
Hernandezwho had discussed Bent’s afternoon medical evaluation with the
officers from the previous shift and who was reportedly told that Bent was
“thrown off” but “okay.” However, even if Hernandez was made aware of
Rosas’s conversation with the other officers, that information is negated by the
fact that COs working during the afternoon of the 1:20 p.m. evaluation
reported to Hernandez that Bent was acting “crazy” during shift change,
several hours after the evaluation. Further, there is no evidence in the record
that Hernandez reviewed Bent’s medical progress notes at any point or knew
of their content prior to Bent’s suicide, nor does Hernandez advance this
argument on appeal. Further, as pointed out by the Government, it seems
somewhat unlikely that officers who were unwilling to perform even one single
mandatory duty involving safety checks and formal inmate counts would have
taken the time to conduct an elective review of an inmate’s medical progress
notes. Additionally, Moore stated that the COs working in the control room
that night after shift change (which included Hernandez) discussed a previous
suicide attempt which took place in the SHU earlier that month, after being
told of Bent’s “crazy” and “suicidal” behavior by the officer’s from the previous
shift.


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      In sum, according to Hernandez’s own admissions and the evidence in
the record, we conclude that Hernandez had subjective knowledgeless than
ten hours prior to Bent’s deaththat Bent presented a suicide risk.
Hernandez was told that Bent was acting “suicidal,” holding up signs that said
“help” and “death,” and had been moved to the SHU for high-risk inmates at
his own request. Hernandez was present in the control room when several COs
had a conversation about a previous suicide attempt by an inmate in the SHU
earlier that month. Hernandez does not claim to have reviewed Bent’s medical
records or to have had personal knowledge that Bent was reported to have been
“okay” after his medical evaluation earlier that day.       Regardless, even if
Hernandez did have personal knowledge of Bent’s medical evaluation, that
information was negated by the statements made by the officers who were
working after Bent’s medical evaluation who reported him as acting “crazy”
several hours later during the shift change. These facts clearly show that
Hernandez was made aware, almost immediately upon beginning his shift,
that Bent presented a suicide risk.
      Based on this evidence, the district court made a factual determination
that Hernandez consciously or recklessly disregarded the risk of death or
serious bodily injury when he falsified the reports indicating that the safety
checks and counts had been performed when they had not. Moreover, even if
it was not feasible for Hernandez to conduct every single count or safety check,
his decision to decline to conduct even one single check or count during the
entire 12-hour shift, in light of the information he conceded he knew about
Bent’s erratic behavior, supports the district court’s factual determination that
Hernandez consciously or recklessly disregarded the risk. Accordingly, the
district court’s conclusion that Hernandez’s offenses under 18 U.S.C. §§ 1001
& 1002 involved “the conscious or reckless risk of death or serious bodily
injury” was “plausible in light of the record as a whole.” See Duncan, 191 F.3d
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at 575 (citation omitted).   Consequently, we hold that the district court’s
application of the sentencing enhancement pursuant to U.S.S.G. §
2B.1(b)(15)(A) was not in error. Id. (citation omitted).
                             III. CONCLUSION
      In light of the foregoing, the sentence of Defendant Frederick Hernandez
is affirmed.




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