United States v. Luis Hernandez-Barajas, No. 21-3763 (8th Cir. 2023)
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While in prison for dealing drugs, Defendant continued to run his operation from behind bars. At one point, he arranged for a shipment of marijuana to a relative. But when black-tar heroin arrived instead, a co-conspirator, C.H. sold it on his behalf. To protect his family, Defendant pointed the finger at C.H. and passed along his address to their suppliers. C.H. continued to sell drugs, including what he received through Defendant. He eventually sold those drugs in controlled buys, which led to federal drug charges. Defendant, for his part, pleaded guilty to a single count of conspiracy to distribute 50 grams or more of methamphetamine. At sentencing, the district court gave him a two-level enhancement for “making a credible threat to use violence or directing the use of violence.” Defendant challenged the enhancement on appeal. At issue on appeal is whether providing a co-conspirator’s address to dangerous people “directs the use of violence” or itself conveys “a credible threat to use violence.”
The Eighth Circuit affirmed. The court explained that once danger came knocking on his family’s door, Defendant redirected the suppliers’ anger toward the person who refused to pay. It was “reasonably foreseeable” that this simple act, given how dangerous they were, could have led to the use of violence against C.H. Accordingly, the court held that the record supports a two-level enhancement for “directing the use of violence.”
Court Description: [Stras, Author, with Smith, Chief Judge, and Arnold, Circuit Judge] Criminal case - Sentencing. The act of providing a co-conspirator's address to dangerous people after the co-conspirator failed to pay his drug debts was sufficient to support an enhancement under Guidelines Sec. 2D1.1(b)(2), as it amounted to redirecting the use of violence against the co-conspirator. Chief Judge Smith, concurring. Judge Arnold, dissenting.
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