United States v. Marcos Alonzo Hernandez

Petitioner Marcos Alonzo Hernandez (“Hernandez”) appeals his convictions for possession of methamphetamine with intent to distribute and for importation of more than fifty grams of methamphetamine. Hernandez argues that his convictions must be reversed because the district court admitted testimony commenting on his silence during custodial interrogation, in violation of the Fifth Amendment, and because the district court erroneously denied his request for a jury instruction on the lesser included offense of simple possession. Hernandez also contends that his sentence should be vacated because either the mandatory language of 18 U.S.C. § 3553 (f) renders the safety valve provision invalid after United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), or because § 3553(f)’s requirements are advisory after Booker , and the district court should have applied it in sentencing Hernandez. We have jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse in part the judgment of the district court.

I

On September 20, 2004, at about 11:30 p.m., Hernandez and his companion, Paul Ortega, entered the United States from Mexico, at the port of entry, Otay Mesa,…