### In the



# United States Court of Appeals

For the Seventh Circuit

No. 12

‐ 1719

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

H ECTOR H ERNANDEZ

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 3:10

‐ cr

‐ 50088

‐ 2

— Frederick J. Kapala

, Judge.

A RGUED F EBRUARY 13, 2013

— D ECIDED S EPTEMBER 10, 2013

Before B AUER

, S YKES

, and H AMILTON

, Circuit Judges.

B AUER

, Circuit Judge. On January 18, 2011, Hector

Hernandez was charged with one count of conspiracy to

possess with intent to distribute cocaine, in violation of 21

U.S.C. § 846, and two counts of possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).

Hernandez filed what is described as a Petition to Enter a Plea

of Guilty and then pleaded guilty to all three counts. At

sentencing, the district court found that Hernandez was2 No. 12

‐ 1719

responsible for more than 150 kilograms of cocaine and

sentenced him to a term of 210 months’ imprisonment,

followed by four years of supervised release. On appeal,

Hernandez challenges the constitutional validity of his plea,

the district court’s finding that he was accountable for more

than 150 kilograms of cocaine, and the district court’s

calculation of his sentence. For the following reasons, we

affirm.

I. BACKGROUND

On January 18, 2011, Hernandez and his co

‐ defendant

Ricardo Vasquez were indicted on three counts of conspiracy

to possess, possession, and distribution of cocaine. That same

day, Felipe Rodriguez was also indicted. Rodriguez had been

cooperating with the Government against both Hernandez and

Vasquez, and he had implicated the men in three large

quantity cocaine shipments at a quarry in Rockford, Illinois.

Hernandez entered a plea of not guilty. On July 7, 2011,

Vasquez pleaded guilty pursuant to a written plea agreement,

which stated that he assisted Hernandez in delivering and off

‐ loading three shipments to the Rockford quarry that each

involved at least 75 kilograms of cocaine.

On September 1, 2011, Hernandez withdrew his not guilty

plea and pleaded guilty. As part of his guilty plea, Hernandez

submitted a Petition to Enter a Plea of Guilty. In the Petition,

Hernandez stated that he was pleading guilty to the three

counts contained in the Indictment, and acknowledged that the

Indictment charged him with conspiring to possess with intent

to distribute more than 500 grams of cocaine. Hernandez

further acknowledged that his guilty plea exposed him to aNo. 12

‐ 1719 3

statutory mandatory minimum sentence of five years’

imprisonment and a maximum sentence of forty years,

pursuant to 18 U.S.C. § 841(b)(1)(B). Hernandez’s Petition did

not detail specific allegations concerning the three quarry

shipments, but acknowledged that, “the Government will

likely assert that the base offense level is 38 based upon alleged

relevant conduct and the delivery of more than 150 kilograms

of cocaine” and that he was subject to a mandatory minimum

sentence of five years’ imprisonment.

On February 1, 2012, Hernandez filed a sentencing

memorandum in which he objected to the drug quantity,

disputed the assessment of criminal history points, and asked

the district court to find him eligible for the safety valve

reduction. On December 12, 2012, the district court conducted

the first part of a bifurcated sentencing hearing. Before

Hernandez’s plea colloquy, the district court swore in a

Spanish interpreter to translate the proceeding for Hernandez.

The district court then asked Hernandez if he was “pleading

guilty to all the counts” and Hernandez responded by asking,

“what are the charges?” The district court assured Hernandez

that it would explain the charges in detail later in the

proceeding and asked whether he was pleading guilty to all

three counts. Hernandez responded that he only discussed

pleading guilty to one charge with his “other attorney.”

Hernandez’s lawyer interjected and suggested that his law

partner may have explained the proceeding differently: “The

case is broken down into three counts

... So, it’s one case, one

charge, but he’s pleading guilty to all three of those counts.”

The district court then briefly delayed the proceeding so that

Hernandez could discuss the issue with his attorney. Following4 No. 12

‐ 1719

the break, the district court asked Hernandez how he would

like to proceed and told Hernandez that while he should

consider his attorney’s advice, the decision whether to plead

guilty was his alone. Hernandez confirmed that he had

discussed all of the counts with his attorney and did not have

any questions for the court. The court then asked which, if any,

of the charges did Hernandez wish to admit. Hernandez

replied, “Your Honor, that I plead guilty to the three charges.”

Next, the district court informed Hernandez of his

constitutional rights, and Hernandez acknowledged that he

understood those rights. The district court then read all three

charges contained in the indictment, and Hernandez told the

court he understood the charges, that they were the same

charges he discussed with his attorneys, and that he had no

questions about the charges. The district court informed

Hernandez about the possible penalties that he could face

during sentencing, and he acknowledged that he understood.

Finally, at the district court’s request, the government recited

the factual basis for the plea. The district court asked the

defendant if the summary was correct, and he agreed that it

was. The district court then asked Hernandez if he disagreed

with any part of the government’s statement and he said no.

Finally, the district court asked Hernandez if he committed the

offenses as described, and he said yes.

Much of the drug quantity evidence at Hernandez’s hearing

came from the testimony of Felipe Rodriguez, a cooperating

witness. Rodriguez testified that he had known Hernandez for

over three years, and that Hernandez had approached him 18

months earlier for help in finding a location where Hernandez

could off

‐ load shipments of cocaine. Rodriguez found a rockNo. 12

‐ 1719 5

quarry that he believed could handle Hernandez’s cocaine

shipments in Rockford, Illinois. Rodriguez testified in detail

about three separate shipments Hernandez made to the rock

quarry, involving approximately 75 kilograms of cocaine per

shipment. Rodriguez also testified that Hernandez gave him

approximately 15 kilograms to sell on his own.

On direct

‐ examination, Rodriguez testified that he was

present at the quarry for all three cocaine shipments. On cross

‐

examination, however, defense counsel elicited from

Rodriguez that he initially told investigators that he was

present for only two of the three shipments to the quarry. FBI

Agent Heatherman subsequently testified that he believed that

Rodriguez thought being “present” at the quarry meant to be

physically inside the quarry, and that during one shipment

Rodriguez considered himself not to be “present” because he

was outside of the quarry gate.

After assessing Rodriguez’s testimony, the district court

found it to be reliable. Rodriguez’s descriptions of the cocaine

shipments, along with his meetings with Hernandez where he

received multiple kilograms of cocaine, were squarely against

Rodriguez’s penal interest. Further, Rodriguez’s testimony was

corroborated by additional evidence. During the hearing, an

investigator testified that he overheard two telephone

conversations between Hernandez and Rodriguez confirming

that they were negotiating the logistics of cocaine shipments.

Additionally, more than one kilogram of cocaine, cocaine

trafficking paraphernalia, and $455,278 in cash were found in

Hernandez’s residence; which the district court found to be a

strong indication that Hernandez was a large volume cocaine

trafficker.6 No. 12

‐ 1719

The second part of the sentencing hearing took place on

March 13, 2012. The PSR concluded that Hernandez possessed

with intent to distribute 2.165 kilograms of cocaine and was

responsible for the delivery and off

‐ loading of 225 kilograms

of cocaine over the course of three shipments in the Rockford

quarry. Applying the 2011 Sentencing Guidelines, the PSR

determined Hernandez’s base offense level to be 38 because he

was responsible for more than 150 kilograms of cocaine,

pursuant to § 2D1.1(c)(1). The district court specifically asked

the Government and defense counsel if there were any

objections to the PSR. Neither side objected. The district court

adopted the factual findings of the PSR and concluded that the

defendant was responsible for more than 150 kilograms of

cocaine but only exposed to a five

‐ year mandatory minimum.

The district court based this finding on the testimony of

Rodriguez, as well as the cocaine and large quantity of money

found at Hernandez’s residence. The district court applied a

two

‐ level reduction for acceptance of responsibility under

§ 3E1.1, but it declined to find Hernandez eligible for a safety

valve reduction. The district court calculated a Guidelines

range of 210 to 262 months, considered the § 3553(a) factors,

heard arguments from counsel and a statement from

Hernandez, and then sentenced Hernandez to 210 months’

imprisonment. Hernandez filed a timely appeal.

II. DISCUSSION

On appeal, Hernandez argues that his guilty plea was not

given knowingly and voluntarily, that the district court

committed error by relying on the testimony of a cooperating

witness when it determined the drug quantity for which

Hernandez was responsible, and that the district courtNo. 12

‐ 1719 7

improperly enhanced Hernandez’s mandatory minimum

sentence in violation of his Fifth and Sixth Amendment Rights.

We will address each argument in turn.

A. Knowing and Voluntary Guilty Plea

Hernandez asserts on appeal that he did not knowingly and

voluntarily plead guilty, and that the district court violated

Federal Rule of Criminal Procedure 11(b)(1)(G) by failing to

adequately assess his ability to understand Count One of the

Indictment. As Hernandez never sought to withdraw his guilty

plea in the district court, we review his claim for plain error

and ask whether: (1) an error occurred; (2) it was plain; (3) it

affected the defendant’s substantial rights; and (4) it seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings. United States v. Pineda

‐ Buenaventura

, 622

F.3d 761, 770 (7th Cir. 2010) (internal citations omitted).

Hernandez argues that he lacked both the education and

language fluency necessary to understand the nature of his

conspiracy charge. In order to determine whether a defendant

understood the nature of a charge, we take a totality

‐

of

‐ the

‐ circumstances approach and consider: (1) the complexity

of the charge; (2) the defendant ʹ s intelligence, age, and

education; (3) whether the defendant was represented by

counsel; (4) the district judge ʹ s inquiry during the plea hearing

and the defendant ʹ s own statements; and (5) the evidence

proffered by the government. United States v. Bradley

, 381 F.3d

641, 645 (7th Cir. 2004).

First, the charges in this case were relatively straight

forward and Hernandez signed his Petition to Enter a Plea of

Guilty which detailed each count. Count One charged8 No. 12

‐ 1719

Hernandez with conspiring with Vasquez to possess and

distribute cocaine. Counts Two and Three charged Hernandez

and Vasquez with possessing and intending to distribute

cocaine. Next, although Hernandez has had little formal

education (eight years of schooling in Mexico), he is forty

‐ years

old, able to read and write in Spanish, and was provided with

the services of an interpreter to communicate with the court

and his attorneys, who represented him throughout the

proceedings. Finally, the district court conducted a thorough

inquiry into Hernandez’s understanding of all aspects of his

guilty plea, and when Hernandez expressed confusion

regarding pleading to one charge rather than three, the district

court stopped the proceeding and gave Hernandez the

opportunity to speak again with his attorney regarding the

charges. After Hernandez conferred with his counsel, the

district court read all of the charges contained in the

indictment, Hernandez acknowledged he discussed these

charges with his attorney, and that he wished to plead guilty

to all three charges. Finally, the government provided a proffer

of the evidence it would have introduced at trial. The district

court asked Hernandez if the government’s summary was

correct and if he committed the crimes as described,

Hernandez answered in the affirmative, and pleaded guilty to

each of the three charges in the indictment.

Hernandez’s reliance on United States v. Pineda

‐

Buenaventura

, 622 F.3d 761 (7th Cir. 2010) is misplaced. The

defendant in Pineda

‐ Buenaventura repeatedly denied that he

had an agreement with others to distribute drugs, and the

district court found that it could not “clearly determine what

acts [the defendant] admitted.” Id

. at 775. That is not the caseNo. 12

‐ 1719 9

here. The record shows that Hernandez knowingly and

voluntarily pleaded guilty. The district court conducted a

thorough plea colloquy, ensuring that Hernandez was

provided an interpreter at every stage of the proceeding,

advised Hernandez of his rights, ensured that he understood

them and that he was fully aware of the nature of the charges,

the consequences of his plea, and the possible punishment.

Accordingly, we reject the argument that Hernandez did not

knowingly and voluntarily plead guilty.

B. Increase in Offense Level Based Upon Drug Quantity

Finding

Hernandez next argues that the district court committed

clear error by crediting the testimony of a cooperating witness

in finding that Hernandez’s conduct involved more than 150

kilograms of cocaine. The quantity of narcotics that the district

court attributes to the defendant for sentencing purposes is a

finding of fact that we review for clear error. United States v.

Conteras

, 249 F.3d 595, 602 (7th Cir. 2001).

Hernandez argues that the district court erred when it

relied on Rodriguez’s inconsistent testimony. We disagree.

Whether or not to believe Rodriguez’s testimony called for a

credibility determination that the district court was uniquely

situated to make. See United States v. Conteras

, 249 F.3d 595, 602

(7th Cir. 2001). The district court was satisfied that Rodriguez

provided truthful testimony, which was corroborated by

additional evidence, including the large amount of cash and

cocaine found at Hernandez’s residence during his arrest,

confirming that he was a large quantity drug trafficker. While

we do find it odd that Agent Heatherman was allowed to offer10 No. 12

‐ 1719

his opinion as to what Rodriguez meant by being “present” at

the quarry, we also find nothing in the record that casts such

significant doubt on Rodriguez’s testimony as to have

precluded the district court from relying on it. See United States

v. Woods

, 148 F.3d 843, 847 (7th Cir. 1998).

C. Mandatory Minimum Sentence Enhancement

Hernandez’s final argument is that his Fifth and Sixth

Amendment rights were violated when the district court found

facts that increased the amount of cocaine Hernandez was

responsible for from 500 grams to 150 kilograms. As

Hernandez failed to assert this claim in the district court, our

review is limited to plain error. United States v. Johnson

, 680 F.

3d 966, 973 (7th Cir. 2012) (internal citations omitted).

Hernandez pleaded guilty to conspiring with his co

‐

defendants, and knowingly and intentionally possessing with

intent to distribute 500 grams or more of cocaine, in violation

of § 841(a). As a result, Hernandez faced a five

‐ year mandatory

minimum sentence under § 841(b)(1)(B)(ii)(II). Hernandez’s

PSR, which the district court adopted, however, calculated his

criminal activity and relevant conduct to involve more than

150 kilograms of cocaine. Hernandez contends that when the

district court found him responsible for 150 kilograms, his Fifth

and Sixth Amendment rights were violated in the wake of

Alleyne v. United States

, – U.S.

– ,133 S. Ct. 2151,

— L.Ed.2d

— (2013). In Alleyne

, the Supreme Court held that “any fact that

increases a mandatory minimum sentence is an ‘element’ that

must be submitted to the jury.” Id

. at 2155. Therefore, a district

court errs when it makes a judicial finding of fact that increasesNo. 12

‐ 1719 11

the statutory mandatory minimum sentence facing a defendant.

In this case, there is no indication in the record that the

district court judge thought he had to impose a higher

mandatory minimum sentence as a result of finding

Hernandez responsible for a larger amount of cocaine than his

charging document attributed to him. Hernandez’s PSR said

the mandatory minimum he faced was five years and the

district court judge repeated that fact multiple times during

Hernandez’s sentencing hearing. Even though the district court

found Hernandez responsible for 150 kilograms or more of

cocaine for Sentencing Guidelines calculation purposes, that

finding did not affect the statutory mandatory minimum that

he faced, which is governed by the charging document. As

Guidelines ranges are only advisory, the Fifth and Sixth

Amendment requirements do not apply. See

, e.g.

, U.S. v.

Abdulahi

, 523 F.3d 757, 760

‐ 61 (7th Cir. 2008); U.S. v. Thomas

,

446 F.3d 1348, 1355 (7th Cir. 2006); U.S. v. De la Torre

, 327 F.3d

605, 611 (7th Cir. 2003). We see no Alleyne error here, and

accordingly decline to remand for resentencing.

III. CONCLUSION

For the foregoing reasons, we AFFIRM.