### 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 U S D C 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 investigati on that took place after an inmate committed suicide at the federal correctional center where he was

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 8, 2015 Lyle W. Cayce Clerk Case: 14-11080 Document: 00512998587 Page: 1 Date Filed: 04/08/2015No. 14

- 11080 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 ha d a Special Housing Unit ( “ SHU ” ) that wa s 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 , includ ing documenting in writing that they had conduc ted 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 se veral 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
h igh

- 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 c ompleted 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.

2 Case: 14-11080 Document: 00512998587 Page: 2 Date Filed: 04/08/2015No. 14

- 11080 “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 ind icating that Hernandez

or any of other the COs reviewed the August 22nd progress notes, nor have they claim ed 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, 20 1 2. 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 ( appr oximately 1:20 p.m.) who had determined at that time t hat 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 pa trol the perimeter. Hernandez stated that when he and the other officers arrived for their shift s , the COs from the previous shift informed them that Bent had been behaving strangely a nd 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 reported ly 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

3 Case: 14-11080 Document: 00512998587 Page: 3 Date Filed: 04/08/2015No. 14

- 11080 discussed a prior suicide atte mpt 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 wit h 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 indicati ng that official inmate counts had been conducted at 12:01 a.m., 3:00 a.m. , and 5:00 a.m. Hernandez also initial ed 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 incide nt 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 s hift during which Hernandez and the other COs worked , beginning on August 22 and ending on August 23 , 2012 . Ultimately, Hernandez admitted to enterin g 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

- mi nute safety checks, 24 of which were required to be performed during each 12

- hour shift. In total, the 4 Case: 14-11080 Document: 00512998587 Page: 4 Date Filed: 04/08/2015No. 14

- 11080 investigation reveal ed 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 , lon g
- standing practice among the officers working in the SHU. Hernandez stated that the practice of falsif ying forms

w as 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 form s 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
ab etting

 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 judgme nt 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 involve d “the conscious or reckless risk of death or s erious bodily injury.” A subtraction of 2 levels for acceptance of responsibility resulted in a total offense level of 12. Hernandez also had a 5 Case: 14-11080 Document: 00512998587 Page: 5 Date Filed: 04/08/2015No. 14

- 11080 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 tha t 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 punish ment 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 t w o 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 6 Case: 14-11080 Document: 00512998587 Page: 6 Date Filed: 04/08/2015No. 14

- 11080 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 U nited S tates 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.” Se e 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 th e 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 d eath o r 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 ris k, but rather only that t he defendant was objectively aware of the risk, i.e. , that the risk “would 7 Case: 14-11080 Document: 00512998587 Page: 7 Date Filed: 04/08/2015No. 14

- 11080 have been obvious to a reasonable person.” See U nited States v. Maestas , 642 F.3d 1315, 1321 (10th Cir. 201 1 ) ( reason i ng 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

. . . w ould have been obvious to a reasonable person.”) ; Uni ted States v. Lucien , 347 F.3d 45, 56 (2nd Cir. 2003) ( determin ing 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 , 24 9 F.3d 848, 859 (9th Cir. 2001) (“ W e 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 subje ctively 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” a s “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 rejection s 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 o r 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, 8 Case: 14-11080 Document: 00512998587 Page: 8 Date Filed: 04/08/2015No. 14

- 11080
Hernandez conceded that when he and the ot her COs reported to begin their 8:00 p.m. shift s , 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.” O n appeal , Hernandez points to th e 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 to ld that Bent was “thrown off” but “okay.” However, e ven 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 Hern andez that Bent was acting “crazy” during shift change , several hours after the evaluation . Further, t here 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, no r 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 dut y 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 too k 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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- 11080 In sum, according to Hernandez’s own admissions and the evidence in the record, we conclude that Hernandez had sub jective knowledge

 l ess than ten hours prior to Bent’s death

 that B ent 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 review ed Bent’s medical records or to have had person al 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 offic ers who were work ing after Bent’s medical evaluation who reported him as acting “crazy” several hours later during the shift change

. The se facts cle ar ly show that Hernandez was made aware , almost immediately upon beginning his shift , tha t Bent presented a suicide risk. Based on this evidence, t he district court made a factual determination that Hernandez consciously or recklessly disregarded th e risk of death or serious bodily injury when he falsified the reports indicating that the safety checks and cou nts had been performed when they had not. Moreover, e ven 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 d etermination that Hernandez consciously or recklessly disregarded the risk. A ccordingly, 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 10 Case: 14-11080 Document: 00512998587 Page: 10 Date Filed: 04/08/2015No. 14

- 11080 at 575 (citation omitted). Consequently, we hold that the distr ict 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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