Saturday, July 14, 2018

Case o' The Week: "Discomfited" Will Do - Hernandez and Acceptance of Responsibility After Trial

  Trials aren’t tribulations.
United States v. Albert Hernandez, 2018 WL 3352608 (9th Cir. July 10, 2018), decision available here.

Players: Decision by Judge McKeown, joined by Judge Murguia. Dissent by Judge Rawlinson.
  Admirable win (on this issue) for D. Nev. AFPDs Amy B. Cleary and Alina Shell.

Facts: Hernandez, a coach, had a sexual relationship with a 17-year-old minor, and they exchanged sexually-explicit images. Id. at *1.
  The relationship was discovered and Hernandez was charged with a host of federal crimes. He was convicted after a jury trial. Id. at *2.
  The district court denied acceptance, and sentenced Hernandez to 284 months. Id.

Issue(s): “[Did] the district court . . . increase[ ] Hernandez’s sentence
or with[hold] a reduction for acceptance of responsibility based on Hernandez’s decision to go to trial[?]” Id. at *4.

Held: “[B]ecause the record suggests that the district court penalized Hernandez by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial, we issue a limited remand for resentencing.” Id. at *1.
  “[O]ur review of the sentencing transcript leaves us discomfited that the district court penalized Hernandez for his assertion of protected Sixth Amendment rights. The district court emphasized Hernandez’s decision to go to trial five separate times during the sentencing hearing. The court first stated that ‘it would mean something if [Hernandez] took responsibility before the trial.’ The court then repeated that ‘contrition means something when it happens before trial.’ . . . . Still further, the court continued: ‘[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there, Mr. Hernandez.’ This comment revealed the court’s dim view of Hernandez’s right ‘to be confronted with the witnesses against him.’ U.S. Const. amend. VI.” Id. at *5.
  “The district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” Id. at *6 (citation omitted).

Of Note: The principled analysis of this issue in Hernandez recognizes the reality of federal court: our clients are almost always forced to plea. The government surely has enough arrows to coerce guilty pleas, without also adding “acceptance of responsibility” to the quiver.
  As Judge McKeown thoughtfully explains, “Although most federal criminal cases result in guilty pleas, the Sixth Amendment right to trial remains an important safeguard to defendants who insist on their innocence. Permitting courts to impose harsher sentences on those few defendants who do go to trial could in practice restrict the exercise of the right to those with unusual risk tolerance—or uncommon courage.” Id. at *6.
  On this issue, Hernandez is a great opinion – use it to fight for the “acceptance” reduction, even after a trial.  

How to Use: Like a liturgy, the district court intoned an assurance that the Section 3553(a) factors had been considered before imposing this whopping sentence. “But reciting this boilerplate statement immediately after chastising Hernandez for going to trial, and without any explanation, does not cure the infirmities in the district court’s justification for the sentence imposed.” Id. at *6.
  Use Hernandez to battle the government’s attempts to use a district court’s vague Section 3553 assurances like sentencing sanitizer.
For Further Reading: Hernandez confirms what we know too well: systemic sentencing penalties have virtually eliminated the constitutional right to a trial.
  For a compelling analysis documenting this problem, with recommendations for reform, see NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, available here

Image of “The Trial Penalty” Report from

Steven Kalar, Federal Public Defender Northern District of California. Website at


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