                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4558



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

v.

AARON HERNANDEZ,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:07-cr-00065-LMB)


Argued:   March 18, 2008                      Decided:   May 6, 2008


Before WILKINSON and MOTZ, Circuit Judges, and William L.
OSTEEN, Jr., United States District Judge for the Middle District
of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Christopher Robert Kennedy Leibig, ZWERLING, LEIBIG &
MOSELEY, P.C., Alexandria, Virginia, for Appellant. Jennifer Lee,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.   ON BRIEF: Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Aaron Hernandez appeals his order of conviction and sentence

for driving while intoxicated (“DWI”) on the George Washington

Memorial   Parkway,   in   violation    of   36   C.F.R.   §   4.23(a)(1).

Hernandez argues that he was entitled to a jury trial on that

charge.    This contention, however, is foreclosed by the Supreme

Court’s holdings in Blanton v. City of North Las Vegas, 489 U.S.

538, 541 (1989) and United States v. Nachtigal, 507 U.S. 1, 6

(1993), which make clear that there is no right to a jury trial for

petty offenses, and specifically, no right to a jury trial for

alleged violations of 36 C.F.R. § 4.23(a)(1). Therefore, we affirm

the judgment of the district court.



                                  I.

     Around 1 a.m. on October 1, 2006, Hernandez was traveling

northbound on the George Washington Memorial Parkway in his Jaguar

when United States Park Police Officer Evan McKinney clocked his

speed at approximately seventy-five miles per hour in a properly

posted fifty mile-per-hour zone.       After observing Hernandez cross

the center line twice, Officer McKinney initiated a traffic stop.

As he approached Hernandez’s car, Officer McKinney detected the

smell of alcohol coming from Hernandez.           Officer McKinney then

administered standard field sobriety tests, which Hernandez did not

complete successfully.      Hernandez was arrested, and a chemical


                                   2
analysis of his blood sample confirmed that his blood alcohol level

was .13g/100mL.

     On November 16, 2006, Hernandez was charged with various

driving related offenses, including possession of a Schedule IV

controlled substance in violation of 21 U.S.C. § 844 (amended by

the superceding criminal information as a violation of 36 C.F.R.

§ 2.35(b)(2)) (count one); and DWI in violation of 36 C.F.R.

§ 4.23(a)(2) (count two).           The DWI offense, as charged under 36

C.F.R. § 4.23(a)(2), carries a maximum penalty of six months’

incarceration, a $5000.00 fine, and a $10.00 special assessment.

36 C.F.R. §§ 1.3(a); 18 U.S.C. §§ 3571(b)(6) and (e) (2000).                     As an

alternative       to   imprisonment    for     a    violation    of    36    C.F.R.

§ 4.23(a)(1), the sentencing court may impose a term of probation

not to exceed five years. 18 U.S.C. § 3561(a)(3).                The sentencing

court     has   discretion     to   attach     various    conditions        to    the

probationary term.        Id. § 3563(b).

     Hernandez filed a motion for jury trial on the DWI offense.

He argued that because this would be his third DWI conviction in

five years and could potentially lead to penalties beyond the

maximum six months’ incarceration under the C.F.R., the charge was

serious enough to warrant a Sixth Amendment right to jury trial.

Relying    upon    the    Supreme    Court’s       decisions    in    Blanton     and

Nachtigal,      the      district   court      denied    Hernandez’s        motion.

Specifically, the district court stated that because DWI under 36


                                        3
C.F.R. § 4.23(a)(1) carries a maximum term of imprisonment of six

months, it is presumptively a “petty” offense which does not carry

a right to trial by jury under the Sixth Amendment.                 Moreover, the

district    court   rejected    Hernandez’s       argument        that   additional

penalties under either 36 C.F.R. § 4.23(a)(1) or under Virginia

recidivism statutes transformed DWI into a “serious” offense for

purposes of the Sixth Amendment.

        On March 14, 2007, Hernandez entered a guilty plea to counts

one and two with a reservation of his right to appeal the district

court’s denial of his motion for a jury trial on the DWI offense.

For count one, Hernandez was sentenced to two years’ supervised

probation with the special condition that he serve ten days’

incarceration, a $5000.00 fine, and a $10.00 special assessment.

For count two, the DWI, Hernandez was sentenced to three years’

supervised probation with the special condition that he serve sixty

days’    incarceration,   a    $1,000.00       fine,    and   a    $10.00   special

assessment.

     Hernandez timely appeals.



                                    II.

     Hernandez maintains that he has a Sixth Amendment right to a

jury trial on the DWI charge.         In order to determine whether a

right to jury trial attaches to a particular offense, courts must

examine    “objective   indications       of   the     seriousness       with   which


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society regards the offense.”       Blanton, 489 U.S. at 541.   “The best

indicator of society’s views is the maximum penalty set by the

legislature,” with the primary emphasis being upon “the maximum

authorized period of incarceration.” Nachtigal, 507 U.S. at 3.

Where a maximum prison term for an offense is no higher than six

months, the offense is presumed to be “petty,” even if accompanied

by additional penalties, and thus no right to jury trial attaches.

Blanton, 489 U.S. at 543.      While this presumption can be overcome

by a showing that such additional penalties “viewed in conjunction

with the maximum authorized period of incarceration . . . are so

severe that they clearly reflect a legislative determination that

the offense in question is a ‘serious’ one,”            id., the Supreme

Court has held that the additional penalties for DWI set forth in

36 C.F.R. § 4.23(a)(2) do not render that offense “serious” for

purposes of the Sixth Amendment.          Nachtigal, 507 U.S. at 5-6.

     In   the   face   of   this   directly   controlling   Supreme   Court

precedent, Hernandez nonetheless contends that his DWI is “serious”

for Sixth Amendment purposes because of (1) “additional statutory

penalties” found in Virginia recidivism statutes; (2) the unique

circumstances of his particular DWI offense; and (3) evolving

societal views of driving while intoxicated.          We address each of

these arguments in turn.




                                      5
                                      A.

      Hernandez contends that “additional statutory penalties” found

in Virginia recidivism statutes -- statutes under which he was not

charged -- render his DWI offense a “serious” one for Sixth

Amendment purposes.          Specifically, Hernandez points out that,

although he was charged with DWI under 36 C.F.R. § 4.23(a)(2), this

court should consider that had he been charged under the relevant

Virginia DWI statutes, he would have been subject to a mandatory

minimum prison term of six months and a minimum five year license

suspension.      Va. Code. Ann. §§ 18.2-270, -271, 46.2-391 (2005).

Hernandez also claims that the penalties contained in 36 C.F.R.

§   4.23(a)(1)    do   not   truly   reflect   a    “legislative”     judgment

regarding the seriousness of the DWI offense because the relevant

regulation was created by the Secretary of the Interior.

      These arguments are all foreclosed by the Supreme Court’s

decision in Nachtigal.         As to the Virginia recidivism statutes,

Hernandez points to no case indicating that we should look to

penalties prescribed by statutes under which he was not even

charged to determine whether his crime entitles him to a jury

trial.    In fact, the Supreme Court expressly instructs that laws

passed by different legislatures are “irrelevant to the question

whether   a   particular     legislature   deemed    a   particular    offense

‘serious.’” Nachtigal, 507 U.S. at 4 (citing Blanton, 489 U.S. at

545, n.11).    Here, Hernandez faced only those penalties associated


                                      6
with a DWI offense charged under the C.F.R.                  It is therefore the

legislative judgment contained in 36 C.F.R. § 4.23(a)(1) and the

Supreme Court’s holding that § 4.23(a)(1) is a petty offense that

guides our analysis and requires us to reject Hernandez’s argument

that   “additional     statutory     penalties”        render   his     DWI    offense

“serious” for purposes of the Sixth Amendment.

       As to the role of the Secretary of the Interior, the Supreme

Court expressly held that 36 C.F.R. § 4.23(a)(1) is not “stripped

of its ‘legislative’ character merely because the Secretary [of the

Interior] has final authority to decide, within the limits given by

Congress, what the maximum prison sentence will be for a violation

of a given regulation.”         Nachtigal, 507 U.S. at 4.



                                          B.

       Hernandez next contends that the unique circumstances of his

particular DWI offense render it “serious” for purposes of the

Sixth Amendment.       Hernandez argues that additional penalties he

potentially    faced       as   third-time       DWI    offender      (beyond     the

possibility   of     six    months   of       incarceration     under    36    C.F.R.

§ 4.23(a)(1)) render his particular DWI “serious.”                    Specifically,

Hernandez   maintains      that   because       he   faced    both    the     possible

aggregation of penalties on his two separate petty offenses and the




                                          7
collateral consequence of license revocation under Virginia law, he

was entitled to a jury trial.1

     Hernandez’s first argument -- that the potential aggregation

of penalties for two separate petty offenses renders his DWI

“serious” for Sixth Amendment purposes -- is also foreclosed by

Supreme Court precedent.     The Supreme Court has made clear that

being “charged with two counts of a petty offense does not revise

the legislative judgment as to the gravity of [a] particular

offense, nor does it transform the petty offense into a serious

one.”    Lewis v. United States, 518 U.S. 322, 327 (1996).   Moreover,

the district court did not even impose an aggregate sentence of

more than six months incarceration on the two petty offenses for

which Hernandez was convicted.

     Supreme Court precedent also forecloses Hernandez’s argument

that the loss of driving privileges he potentially faces under

Virginia law for a third DWI conviction render his DWI offense

“serious” for Sixth Amendment purposes.    In Nachtigal, the Supreme

Court held that the regulatory revocation of the defendant’s

license was not “constitutionally significant” in regard to the


     1
        Hernandez also argues that the mandatory minimum sentence
of incarceration for a third DWI under Va. Code Ann. § 18.2-270,
which might have been (but was not) imposed upon him pursuant to
Virginia’s comity policy, renders his DWI offense “dramatically
more serious than other six month offenses under the CFR.”       We
again decline Hernandez’s invitation to make a determination
regarding the seriousness of his DWI offense based upon a survey of
penalties contained in statutes under which he was neither charged
nor sentenced. See Nachtigal, 507 U.S. at 4.

                                   8
right to a trial by jury.    507 U.S. at 4.   We therefore reject

Hernandez’s argument that the circumstances of his case render his

DWI conviction uniquely “serious” under the Sixth Amendment.



                               C.

     Finally, Hernandez argues that we should revisit the standard

for defining the “seriousness” of an offense set forth by the

Supreme Court in Blanton and find that a DWI is indeed a “serious”

offense for purposes of the Sixth Amendment.        In particular,

Hernandez contends that the development of Virginia’s drunk driving

laws and of society’s views regarding the seriousness of drunk

driving offenses demonstrate that “the line between serious and

petty under the Sixth Amendment evolves.”

     It goes without saying that the decisions of the Supreme Court

bind the circuit courts of appeals. We accordingly shall not adopt

Hernandez’s proposed common-law methodology for determining whether

an offense is “serious” for purposes of the Sixth Amendment -- a

methodology the Supreme Court explicitly rejected in favor of the

objective, statutory-maximum-penalty analysis we applied above.

See, e.g., Lewis, 518 U.S. at 326-27.

     For the foregoing reasons, we affirm the judgment.

                                                          AFFIRMED.




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