United States of America v. Darlin Janett Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARLIN JANETT HERNANDEZ,
Defendant-Appellant.
No. 15-50434
D.C. No.
3:14-cr-03701-BAS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted January 9, 2017**
Pasadena, California
Before: KOZINSKI and WATFORD, Circuit Judges, and BENNETT,*** District
Judge.
FILED
JAN 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.

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1. The district court did not err in rejecting Darlin Hernandez’s vindictive
prosecution claim. At the time the government filed the original charge against
her, the evidence supporting the bail jumping charge did not exist. Thus, although
the government added the bail jumping charge after Hernandez exercised her
constitutional right to go to trial, no presumption of vindictiveness arose here. See
United States v. Gallegos-Curiel, 681 F.2d 1164, 1168–69 (9th Cir. 1982). That
the government sought a default judgment on Hernandez’s bond the same day the
district court set the date for trial does not give rise to an inference of
vindictiveness given that the prosecutor acted on new information providing a
basis for the additional charge. See United States v. Goodwin, 457 U.S. 368,
381–82 (1982).
2. The district court did not err in finding that Hernandez was subject to a
twenty-year maximum sentence for importing methamphetamine. 21 U.S.C.
§ 960(b)(3). The government was not required to prove that Hernandez knew the
precise type or quantity of the drug she imported. See United States v. Jefferson,
791 F.3d 1013, 1019 (9th Cir. 2015); United States v. Carranza, 289 F.3d 634, 644
(9th Cir. 2002). Our precedent on this point is not clearly irreconcilable with any
of the Supreme Court decisions cited by Hernandez.
AFFIRMED.

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