In U.S. v. Hernandez, No 04-16663 (Dec. 27, 2005), the Court (Carnes, Hull & Pryor) rejected challenges to the sufficiency of the evidence, but, accepting the government’s confession of error, vacated a sentence for Booker error.
During a cocaine sting operation which took several days to prepare, Hernandez, who had not been involved in any of the events, appeared on the day of the transaction as a passenger in the vehicle driven by a purchaser of the drugs. Hernandez’ involvement, according to law enforcement (whose account was contradicted by defense witnesses) consisted solely of saying "nine and this," in response to a question about the money for the drugs (a response which didn’t make too much sense since the transaction involved $30,000+) and of saying "trainos de nosotros" ("bring us ours"), a comment which allegedly referred to drugs. Recognizing that the evidence could have been interpreted not to show guilt, the Court nevertheless affirmed Hernandez’ drug trafficking conviction. The Court noted that, on appeal, it gave every reasonably favorable inference to the government, and that the jury could have inferred guilt from Hernandez’ statements and his presence at the scene of the drug transaction. Moreover, the trial court did not abuse its discretion in not granting, post-verdict, a motion for a new trial, because this was not one of the "exceptional" cases in which the judge could overrule the jury’s verdict of conviction. The Court also rejected a Due Process challenge to its standard of review of sufficiency issues.
For the sentence, the Court noted that the district court had stated that it would have imposed a lower sentence had it not been bound by the Guidelines, and therefore committed Booker error in imposing the Guideline sentence. The sentence was vacated, for resentencing.
