United States v. Xavier Hernandez

In United States v. Xavier Angelo Hernandez, No. 23-50529 (5th Cir. May 6, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s firearm conviction and his 300-month prison sentence, despite his arguments that his factual basis was insufficient to support his guilty plea and that his plea was not knowing and voluntary.

Background: Hernandez pled guilty to conspiracy to possess with intent to distribute methamphetamine and possessing a firearm during the commission of a drug-trafficking crime. At sentencing, he received a below-Guidelines 300-month sentence.

Issue 1: Was Hernandez’s guilty plea inadequate because the court did not advise him on all elements of the offense? Held: No.

At a minimum, a court accepting a guilty plea “must have a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge.” United States v. Santiago, No.23-30149, 2024 WL 1205473, at *4 (5th Cir. Mar, 21, 2024) (citation omitted). That can typically be satisfied by “a reading of the indictment, followed by an opportunity given [to] the defendant to ask questions about it.” United States v. Cuevas-Andrade, 232 F.3d 440, 444 (5th Cir. 2000) (citation omitted). Here, those steps were taken, and “Hernandez stated he understood the charges and did not have any questions concerning them.”

Issue 2: Did Hernandez admit insufficient facts to prove he possessed a firearm “in furtherance” of a drug-trafficking crime under 18 U.S.C. § 924(c)? Held: No.

“This element requires more than a firearm’s mere presence; [the gun] must ‘further, advance, or help a drug trafficking’ crime. United States v. Ceballos-Torres, 218 F.3d 409, 412 (5th Cir. 2000).” When a defendant challenges his guilty plea’s factual basis on plain error review, the Fifth Circuit will consider not only his plea colloquy but also “the entire record.”

Here, the PSR said that “during a traffic stop, officers discovered in Hernandez’ vehicle: two large bags of a crystal substance, two digital scales, sandwich bags, marihuana, synthetic marihuana, a stolen .40 caliber handgun, and money.” The Court has previously upheld a § 924(c) conviction when the “weapon was loaded and easily accessible in [defendant]’s apartment . . . along with a substantial amount of drugs and money.” United States v. Ceballos-Torres, 218 F.3d 409, 412 (5th Cir. 2000). Here, “Hernandez also frequently made social media posts displaying marihuana, money, and several firearms.” The record was sufficient to support Hernandez’s plea for possessing a firearm in furtherance of a drug-trafficking offense.