“Lifelong” Honduran drug-trafficker suffers plea deal reverse in federal court in San Francisco
An illegal alien who has sold illegal drugs in the U.S. for ten years had a trial date set this morning – after a federal judge rejected a plea agreement that would have seen him plead guilty and immediately be sent for deportation.
Prosecutors say Roger Hernandez, 33, sold fentanyl to an undercover police officer in San Francisco’s United Nations Plaza in the small hours of April 12 2024. The court heard that he has seven past convictions: the most recent of which was in December 2023, for drug dealing, at the city’s superior court.
He was violating a state court ‘stay away’ order when he was arrested.
“The evidence indicates that he has entered the United States illegally at least once – and very possibly twice – so help me understand why a sentence of ‘time served plus one day’ is possibly in…the public interest?”
U.S. District Judge James Donato
“This defendant has a lifelong history of convictions for possession with intent to distribute controlled substances that goes all the way back to the age of 24, and the year 2014, and each and every year, more or less, going forward,” observed U.S. District Judge James Donato as he cast his eyes over Hernandez’ history.
“The evidence indicates that he has entered the United States illegally at least once – and very possibly twice – so help me understand,” he asked both attorneys, “why a sentence of ‘time served plus one day’ is possibly in the interests of the rules of sentencing…or the public interest?”
Assistant U.S. Attorney Jonathan Lee told the court that, although the government did not fully appreciate the scale of the defendant’s conviction history at the time they inked the plea deal, it stood by its recommendation that the court impose a ‘time served plus one day’ term, which would allow Hernandez to be handed over to immigration officials for deportation.
Assistant Federal Public Defender Ned Smock assured the court that his client understood the impact of his conduct.
“He was in San Francisco Superior Court and got short sentences and was released back to the street,” he said. “Here, he’s in federal court and he hears from the court your concerns about his situation, he’s getting harsh punishment and he recognizes that, if he comes back to this country, he will be back before your honor on an illegal reentry charge.”
This cut little ice with the judge.
“A flight home for a man who has his criminal history, his overcommitment to violating the law of the United States…how is that possibly a disincentive? I just don’t get it,” Donato said.
“The odds are he will be back, and shortly. Because he has children here and he has been selling drugs here for ten years with no consequences.”
The judge said that, even after giving “every benefit of the doubt” to Hernandez, the advisory guideline sentencing range still amounted to between 46-57 months’ imprisonment.
“A sentence of time served in this case, which is approximately five months…is manifestly not justified and not in the interests of the fair administration of justice or protection of the public interest.”
He rejected the plea deal and set Hernandez’ trial for December 2 2024.
Donato is one of a small number of federal judges in Northern California to have expressed misgivings over the unduly lenient sentences they were being asked to impose on drug trafficking defendants who are illegal aliens.
Earlier this year federal public defenders tried to boot another such judge – U.S. District Judge William Alsup – from hearing fentanyl cases entirely owing to his refusal to participate in lenient fast track dispositions promoted by federal prosecutors.
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