IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11080

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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.

United States Court of Appeals

Fifth Circuit

FILED

April 8, 2015

Lyle W. Cayce

Clerk

 

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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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“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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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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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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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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