Missed opportunity waives arguments for appeal against $110K restitution order

A convicted sex offender’s perceived legal strategy for avoiding a six-figure restitution judgment backfired when the 7^th Circuit Court of Appeals determined he had waived the issue because he did not raise his arguments at sentencing.

Buster Hernandez pleaded guilty to 41 counts arising from his “online campaign of terror” in which he coerced hundreds of victims, most of them minors, into producing and sending him sexually explicit images and videos. The U.S. District Court for the Southern District of Indiana imposed a sentence of 75 years and, following the government’s recommendation, mandated Hernandez pay $10,000 in restitution each to 11 of his victims.

Hernandez had a copy of the presentence investigation report and knew nearly a year in advance of his sentencing hearing that the government was seeking a restitution order that totaled $110,000. Yet the defendant only objected to the push to enhance his sentence and tried to convince the court to reduce his prison time to 30 years.

Not only did he not counter the restitution demand, he even told the court that a 30-year sentence would “provide significant time for restitution to be paid” while he worked in the Bureau of Prisons.

Only after the sentence was handed down did Hernandez start arguing against the restitution. He asserted the 7^th Circuit should reverse the restitution order because the government provided no evidence that the victims each suffered $10,000 in losses. Instead, he contended, the victims should each get the statutory minimum of $3,000.

The 7^th Circuit found Hernandez had waived his arguments and affirmed the restitution amount in United States of America v. Buster Hernandez, 21-1481 and 21-1935.

In its 13-page opinion, the appellate panel cited the government’s speculation that Hernandez intentionally did not mention the restitution as part of his strategy to secure a lower sentence. He was trying for 30 years and may have reasoned that also complaining about having to pay his victims would have been “deeply unpalatable” for the district court.

“Fighting waiver, Hernandez argues that he couldn’t have been expected to object to the restitution amount when the PSR offered no evidence of loss and the government showed up unexpectedly empty-handed to his sentencing hearing,” Judge Thomas Kirsch wrote for the court. “As he sees it, there was nothing tangible to object to until the district court indicated that it would order the $10,000 in restitution per victim that the government requested, at which point Federal Rule of Criminal Procedure 51(a) made it unnecessary for him to object to an already-decided ruling.

“But that misconstrues what happened: the district court stated an intended sentence including $10,000 per victim, which it did not impose until after giving both parties an opportunity to object — an opportunity Hernandez did not take,” Kirsch wrote.