United States v. Buster Hernandez

Citation: Not availableDocket: 21-1935

Court: Court of Appeals for the Seventh Circuit; August 17, 2022; Federal Appellate Court

Original Court Document: View Document

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Buster Hernandez was sentenced to 75 years in prison after pleading guilty to a sextortion scheme that victimized hundreds, including many minors, from 2012 to 2017. The district court ordered mandatory restitution of $110,000, consisting of $10,000 for each of eleven minor victims. Hernandez challenges this restitution, arguing that the government failed to prove the victims' losses and that the judgment concerning three of the victims was improperly amended. However, the court found that Hernandez waived these arguments by not raising them during his sentencing, which appeared to be part of his legal strategy. Consequently, the appellate court affirmed the district court's judgment without addressing the merits of Hernandez's claims.

Hernandez’s scheme involved coercing victims into producing sexually explicit materials by falsely claiming he already had compromising images of them. He would threaten to distribute the materials if they did not comply with his demands and employed various tactics to conceal his identity, including using numerous aliases and sophisticated technology, such as a computer without a hard drive and encrypted external hard drives. His criminal activities began to unravel in December 2015 when a victim's mother discovered extortion messages, leading to further threats from Hernandez, including threats of violence against the victims and their families, and threats of mass violence against public places. Despite law enforcement's efforts, Hernandez evaded capture for 20 months due to his technological proficiency.

In mid-2017, law enforcement identified Hernandez after one of his minor victims allowed officials to use their online identity to send a video containing embedded code that revealed Hernandez's IP address. He was arrested on August 3, 2017. By April 2019, he faced a 41-count Superseding Indictment for serious crimes, including child pornography and threats against minors. Hernandez pled guilty to all counts on February 6, 2020, without a plea agreement. 

Prior to sentencing, the government sought $10,000 in restitution for each of eight minor victims, as mandated by 18 U.S.C. 2259. Hernandez objected to an offense-level enhancement but did not contest the restitution claim, even after the Probation Office updated the Presentence Investigation Report (PSR) to include three additional victims. During sentencing, Hernandez argued for a 30-year sentence, believing it would allow him to pay restitution while incarcerated, but did not raise issues regarding the restitution amount. The district court imposed a sentence of 75 years in prison and ordered $80,000 in restitution for the initial eight victims. 

Subsequently, it came to light that the three additional victims had been mistakenly omitted from the restitution order. The government filed an unopposed motion to amend the judgment to include $10,000 for each of these victims, resulting in a total restitution of $110,000. Hernandez appealed, challenging the restitution order on two grounds: the lack of evidence for the victims' losses and the propriety of amending the judgment to include the additional victims.

A. Hernandez contests the district court's $110,000 restitution order, arguing that the government failed to provide evidence of his victims' losses. He acknowledges that, under 18 U.S.C. 2259, victims are entitled to a minimum of $3,000 each, but asserts that the government should be barred from presenting loss evidence on remand due to prior failures at sentencing. However, Hernandez's argument is undermined by his failure to raise it during the district court proceedings, which results in either forfeiture or waiver of the argument, limiting appellate review. Waiver, defined as the intentional relinquishment of a known right, is applicable here since Hernandez did not object to the restitution claim despite ample notice provided in his pre-sentence report (PSR). The PSR, filed nearly a year prior to sentencing, detailed the harm inflicted on victims and specified the restitution the government would seek. Hernandez actively engaged with the PSR regarding other matters but omitted any challenge to restitution, indicating acquiescence. This pattern continued through the final PSR and during the sentencing hearing, where he failed to address the restitution amounts even as additional victims were identified. His counsel confirmed review of the PSR, suggesting awareness of the restitution claim but no objection was made.

Hernandez's only mention of restitution during the sentencing hearing was to assert that a 30-year prison term would allow him time to pay restitution while working in prison. The district court subsequently announced a sentence of 75 years' imprisonment and $10,000 in restitution per victim, aligning with the Pre-Sentence Report (PSR). Despite the opportunity to object to the sentence, Hernandez's counsel stated there were no further objections. While this non-objection does not automatically constitute a waiver, it is evaluated within the broader context of the case. The government provided persuasive strategic reasons for Hernandez’s lack of objection, including his lack of income or assets, making any restitution order impractical. Additionally, contesting restitution could have weakened Hernandez’s arguments for a lighter sentence. He sought a downward variance to 30 years, presenting a complex personal history to mitigate the severity of his crimes. Although he ultimately received a 75-year sentence instead of the desired 30 years, the choice to limit objections appears strategically sound given the circumstances, despite subsequent regret.

Hernandez contends he could not object to the restitution amount due to a lack of evidence in the Presentence Report (PSR) and the government's unexpected absence at his sentencing. He argues that the district court's announcement of a $10,000 restitution per victim was a predetermined decision that did not require objection under Federal Rule of Criminal Procedure 51(a). However, the court clarified that it allowed both parties to object before finalizing the restitution amount, which Hernandez failed to do. His understanding of mandatory restitution and prior warnings from the PSR about potential amounts indicated a clear opportunity to contest the restitution, which he waived by not doing so. 

Additionally, Hernandez challenges the amended judgment that included restitution for three minor victims initially omitted. He claims the omission was not an error correctable under Federal Rule of Criminal Procedure 35(a). The government noted that Hernandez did not object to this amendment, further supporting the conclusion of waiver. Unlike the ambiguous circumstances in United States v. Jaimes-Jaimes, the record here clearly reflects Hernandez's failure to object to a specific request for restitution. While Hernandez's counsel suggested potential ineffective assistance regarding the late-added restitution, the presumption of competence in counsel's strategic decisions complicates this matter and is not appropriately addressed on direct appeal. The court ultimately affirmed the decision.