UPDATED II: Rocksprings Deputy Gilmer Hernandez sentenced to 12 months plus one day in jail

March 19, 2007
By Joe Hyde
Special to LIVE!

Approximately 50 residents of Rocksprings, in Edwards County, Texas chartered a bus that carried them from their hometown to Del Rio Monday morning (March 19) praying for a miracle for their favorite son, former Edwards County Deputy Guillermo Falcon Hernandez. They were praying, literally. “When we crossed the U.S. Highway 277 Bridge across Lake Amistad, everyone on the bus held hands and we recited the Lord’s Prayer,” recalled Tooter Smith, a reporter for the Rocksprings Record who rode on the bus with her neighbors. The prayers were answered, but not in the magnitude that the Rocksprings contingent desired. Gilmer Hernandez was sentenced to 12 months plus one day for the federal conviction of violating the civil rights of Maricela Rodriguez Garcia. She suffered an injury from a round from Hernandez’s gun when the driver of the Suburban in which she was hiding as she was being smuggled into this country attempted to flee Hernandez’s traffic stop. Hernandez shot at least four times at the tires of the Suburban as it sped away.

Hernandez said the driver of the Suburban drove away recklessly and perhaps tried to hit him. Yet a bullet fragment entered the rear cargo area of the Suburban, penetrated Garcia’s lip, shattered two teeth, and exited the hole of her mouth. She was treated at Val Verde Regional Medical Center and then transferred to Brooke Army Medical Center (BAMC) where she was released the next day in the care of her husband.

Outside the federal courthouse in Del Rio, crowds gathered early in anticipation of what federal Judge Robert T. Dawson, who traveled from Arkansas to sit on the bench here, said was one of the larger cases he has seen. “We have a large crowd here today. I presume they are all here in support of you. That speaks well for you Mr. Hernandez,” Dawson said as he opened the sentencing hearing.

Anticipating emotions from the crowd of approximately 30 supporters of Hernandez (the rest of the Rocksprings crowd was told to stay outside of the federal building) and five members of the media inside the courtroom, the judge admonished the crowd not to display any type of emotional outbursts

Then the judge set the stage with remarks outlining the history of the courtroom trial that began here Nov. 28, 2006, and ended with Hernandez’s conviction by a jury on Dec. 1, 2006. Hernandez has been held by the U.S. Marshals at the Val Verde County Detention Center since the conviction.

“We conduct our trials in public in this country which is why we have one of the finest judicial systems in the world,” Dawson remarked. “I do not believe I have had a jury that was as attentive as this jury.” Dawson noted that the jury acted in good conscience when they convicted Hernandez on one count of violating the civil rights of Garcia and found him not guilty on another count. Dawson noted that the jury was a good cross-section of U.S. society. “This was also a well-tried case.” Dawson said.

Dawson turned to Hernandez’s defense lawyer from San Antonio, Jimmy Parks Jr. “I understand, Mr. Parks, that there will be no testimony from the defense,” Dawson said. “That’s correct, Your Honor. We had a change of strategy,” Parks replied. “We felt that since you have already read the letters…” Dawson interrupted: “Yes I believe I have over 200 letters I have read,” Dawson said referring to what he said was a stack over several inches thick. “Most of them speak very highly of you,” Dawson said, as he nodded towards Hernandez. Then Dawson quipped to Parks, “I guess the two witnesses you had arranged were the only two people in Rocksprings that haven’t sent me a letter.”

Under which statute’s minimum sentencing apply to Hernandez became the topic of discussion between the judge, prosecution and defense. Some statutes would require a 10-year sentence, such as a full-fledged civil rights violation. For other statutes, the sentencing could be measured in months, such as for aggravated assault.

Parks made an impassioned argument for going with the lesser sentencing guidelines.

“I went back through the testimony and in my mind I tried to decipher what happened when that Suburban pulled away, and that it had two bullet holes in the back,” Parks said in a display of empathy with the prosecution’s side.

“But then I go back to his motive and his reason and intent as a law enforcement officer that night. He had no intent to harm anyone or to damage property,” Parks continued.

Parks said that there were some risks to using the harsher sentencing calculations. “I realize I am at risk here of pushing the envelope, but I tell you I see these guidelines and I object,” Parks said. “I object because I do not see intent to cause bodily injury. I don’t think anyone feels that way,” Parks said.

Dawson seemed to agree, referring to guidelines that would accommodate a lesser sentence.

For the prosecution, Assistant U.S. Attorney Bill Bauman approached the podium, and reiterated the jury’s verdict. “The government relied upon the jury’s verdict. The jury was asked by the court to render its verdict,” Bauman said, as he pushed for harsher guidelines. Bauman produced pictures of the victim and Dawson allowed them to be placed into the record. “The jury agreed that Hernandez caused bodily injury and that violated her civil rights,” Bauman stressed. “The defendant knew he was firing at a loaded vehicle,” he said.

“But the first shots were fired at the tires of the vehicle,” interrupted Dawson.

Bauman answered, “Yes, but we were willing to give the defendant the first three shots [and not prosecute]. But when that car drove off, and more than three shots were fired, one of them was the one that blew the face off this lady,” Bauman said.

Dawson: “But the indictment doesn’t mention intent to cause harm.”

Bauman: “The jury was charged to determine if the defendant was too unreasonable when he attempted to seize the car. He was intending to seize that car. It was an occupied car. And that’s where he went wrong.”

“That doesn’t seem fair,” said Parks in response. “We’re going to add another six levels. I feel like he [Hernandez] is being double-convicted.”

Bauman: “Mr. Parks is incorrect. It is an offense involving individual rights, not necessarily an offense committed by a person, but a public law enforcement office under the color of the law. The purpose [of this sentencing guideline] being more harsh is because he is an officer of the law and to enhance public confidence in our law enforcement.”

In all, the defense had 13 objections to the pre-sentencing documents. The prosecution had six objections that Bauman did not reiterate. Instead he asked the judge to place them on the record.

Dawson continued to dissect the sentencing guidelines. “The real question is whether or not this [the guideline for minimum sentencing] falls under aggravated assault or offenses to an individual’s civil rights,” Dawson said, because the difference between the two is substantial, he added.

The final sentencing guideline discussed was to subtract two points from the sentencing guideline’s severity for acceptance of responsibility for the crime committed. Mr. Parks was asked to comment.

Parks noted that immediately after the events of that evening, the defendant admitted the conduct when it happened. He sought out Border Patrol Agent Terry Hunt and his (Hernandez’s) boss, Sheriff Don G. Letsinger. Hernandez reported the incident immediately and wrote a written report of the events that evening. What is more, according to Parks, Hernandez assisted in the investigation. Hernandez surrendered to authorities and voluntarily stepped down from his position as a deputy sheriff. He agreed to participate in counseling. “This is the case the Sentencing Guideline Commission was thinking about when they made provisions for this reduction,” Parks argued.

Bauman: “This is not a reward. It is an incentive… The intent of Congress is to do what we do with kids. ‘[We tell them] Look, you goofed. But you need to come clean.’”

Bauman said that anyone could second-guess this incident to death. He said you could argue that the fleeing Suburban was a threat to a car headed the opposite direction down Highway 377 from Fredericksburg.

“If he puts his gun back on and all Letsinger’s deputies think it’s OK to shoot and not admit you are wrong. He hasn’t accepted responsibility,” Bauman asserted.

Dawson concluded the discussion by announcing that mandatory minimum sentencing guidelines were declared unconstitutional by the U.S. Supreme Court because they run afoul of the 6th Amendment. Therefore, he noted, mandatory minimum sentencing guidelines are suggestions in federal district court, not law.

Before a 15-minute break, Dawson outlined the parameters of the minimum sentencing guidelines that he would be working under.

With the severity of the crime, Dawson said Hernandez faced 21-27 months in prison, 2-3 years under supervised release, a fine in between $5,000 and $50,000, restitution of $5,374.97 to be paid to the victim, and a $100 special assessment by the court. The sentence would allow for no parole.

The court reconvened after the break for the most emotional portion of the hearing. This was what was called the “35, 53” hearing. In this hearing, the prosecution makes its best case to maximize the sentence, and pleas from the defense are made concerning the character and criminal history of the defendant.

Bauman stated that the sentence should reflect the seriousness of the crime. When the ambulance arrived at the scene, Bauman said, the attendants thought they were dealing with the injuries from an unrestrained passenger. “She was hurting, crying, and couldn’t tell anyone what was wrong,” Bauman said. But according to Bauman, Gilmer Hernandez had just holstered his weapon. He knew what was wrong, he said. It was only when the sheriff arrived and asked. “Only then did the defendant come forward and suggest she was shot,” Bauman said.

“We are concerned, obviously, for this victim. And we are concerned that law enforcement has the understanding that they are not to use firearms as spikes [referring to spike strips laid out to stop fleeing vehicles],” said Bauman. “This is not constitutionally permissive. This is the message I hope this court not only sends to this defendant, but also to all of law enforcement.”

Dawson turned to the defense.

Parks said that Congress and the Sentencing Commission came up with these guidelines before the September 11, 2001 attacks. “They did not have the post-9-11 world factored into their guidelines,” Parks said. He stressed too, that those that created the sentencing guidelines did not know what is happening along the U.S. borders.

Parks noted that the Edwards County Sheriff’s Office routinely receives warnings about terrorist activity along the U.S.-Mexico border. “Hernandez was alone, he had no backup, he’s only 25-years-old, and he’s carrying a remarkable burden. They tell him ‘We believe terrorist activity has not stopped. That Al Qaeda may try to smuggle themselves across our border.”” Parks said.

“And guys like Hernandez are our first line of defense”, Parks said. How guilty would Hernandez feel if he didn’t work a little harder? Parks asked. Parks mentioned the MS-13 gang that is calling for the murder of law enforcement officers as an extreme example of the threats Hernandez was facing alone and at night. “No one setting up these guidelines contemplated these conditions,” Parks said.

Nor do these warnings Hernandez was reading back at the patrol desk in Edwards County explain how to do his job. “All they do is put on the adrenaline rush,” Parks said. Parks said that Hernandez was serving as a deputy out of altruism for the safety of others. And all of this intense pressure was added after the publishing of these sentencing guidelines. “This court should consider this,” Parks said.

“Also, consider the conduct of the victim,” said Parks. Parks asked the judge to consider the conduct of the driver. “Can we say whether or not they were victims driving that night?” Had the occupants of the Suburban not been smuggling themselves into this country, this offense would not have happened, Parks said.

Parks noted the numerous crimes the victims in the Suburban were committing that evening: Car theft; evading arrest, on two counts, felony and misdemeanor, attempted assault, evading federal authorities when they circumvented the Border Patrol checkpoint, human smuggling, conspiracy, because there were a number of people working together to commit these crimes, aiding and abetting, money-laundering because they charged $2,000 per person to smuggle them across, and tax fraud. Parks said the victims might have even been guilty of organized crime. “Remember, there were nine individuals involved in this smuggling operation,” Parks said.

Parks asked the judge to consider the conduct of the victims, meaning each of the individuals in the vehicle that night. “They precipitated the actions of Gilmer Hernandez that night,” Parks said.

Parks said that Gilmer Hernandez never believed he’d be a criminal defendant in court. “He wanted to catch the bad guys—the very bad people you want to get off the streets,” Parks said.

“I hope the court will consider his history,” Parks continued. Today, Hernandez’s lifetime goal of being a law enforcement officer is no longer a reality, said Parks. His time away from his family will never be replaced. His loss of a career will never be replaced, said Parks.

“He worked five jobs to get a degree that will be marginalized by a federal conviction,” Parks continued. “And look at the people here to support Gilmer. They’re here because they have to be here; they have no choice.”

Parks paused, holding back tears. Many in the audience in the gallery were crying too.

“In 35, 53, the court has to consider the history and background of the defendant. As weak of an argument I make, I believe in my heart that this was a case of negligence,” said Parks. Parks suggested to the judge that there are two forms of deterrence.

“Will this sentence be a deterrent for other law enforcement officers? Perhaps it should be, but I feel uncomfortable saying this. There is a possibility there will be two messages,” said Parks. One message is that law enforcement will not pull their weapon because they don’t want to shoot at a fleeing vehicle, Parks concluded. “But this can be transferred into ‘Don’t bother to act.’ And this can be summed up by the prosecution’s argument: ‘You just should have let him go,’” said Parks.

Parks said that if there is a stiff sentence, the smugglers know they don’t have to stop. “Then we have a serious problem when all the smugglers know they can just drive away,” said Parks.

“There will be a group of people very joyful with an extended sentence [for Hernandez]. They will laugh at our system,” said Parks.

“Last, I know in my heart that as hard as our prison officers try, there is some difficulty in protecting our law enforcement officers in prison,” Parks said. Parks pleaded with Dawson to consider Hernandez’s daughter Alectra, his wife Ashley, and his mom Rose, should Hernandez be harmed in prison.

After Parks’ remarks, the judge turned to Hernandez. Hernandez indicated that he did have remarks and read from a prepared statement:

“Your Honor, I’ve got something to say. [Sobbing] I am very sorry. I never meant to cause any physical pain,” he said. Hernandez said that if he could turn back time and relive that evening that he wouldn’t have shot. “It was wrong,” Hernandez said.

“My only desire is to be with my wife and my daughter,” Hernandez said. Hernandez mentioned that should anything happen to him in prison, he didn’t know what kind of effect it would have on his wife and daughter. “I love and miss my wife and daughter so much,” Hernandez said.

“I never dreamed of being in a cell or in an orange suit,” he said.

Dawson asked Bauman if the prosecution had a rebuttal. Bauman asked that his rebuttal be tabled.

Then Dawson addressed Hernandez as he handed down the sentence, saying that he seriously considered the information provided in the last portion of the hearing about Hernandez’s character, the circumstances, and the message the sentence will send. Dawson noted that unfortunately there is some “Monday morning quarterbacking” that needed to be accomplished in this case.

Dawson delivered the sentence of twelve months plus one day in prison, with credit for the 110 days of time served. After prison, Hernandez will undergo three years of supervised release. Dawson ordered that he pay a $5,000 fine in addition to paying restitution to the victim of $5,374.97 and a $100 court fee.

“You have received a very brutal sentence,” Dawson concluded, but noted that the sentence was only about 1/8th of what it could have been.

Gilmer’s wife Ashley Hernandez left the courtroom in tears. Outside, she paused briefly to talk to news reporters. “This was a horrible mistake. And people [in law enforcement] have to think twice about what they do, because in one second your life can be ruined,” she said. “I have my daughter, and I have to do it without him. But I am going to wait faithfully for him.”

“The government didn’t understand what kind of guy he is. They couldn’t tell what kind of person Gilmer was,” she said.

Letsinger retorted to another reporter who asked if he was unhappy with the sentencing. “Not happy? Of course I am not happy when an innocent man is convicted. The government continues to operate on the theory that these people [drug smugglers, human traffickers] are of no threat. But the government is not having to go to the homes of the families of someone who gets hurt. I don’t think the people of this country are going to stand for these criminals fleeing down our streets and highways, and possibly hurting or killing our citizens,” said Letsinger.

Letsinger concluded, “I have spent a career defending the Constitution. Now the Constitution is being used against us.”

Parks made a few remarks outside as well.

“Frankly, I feel like a spoiled brat, Parks said. “What a remarkable job the judge did today,” he said. The defense went to the hearing believing Hernandez would get at least seven years. But according to Parks, the judge was able to turn sentencing guidelines on their side and reduce them.

The extra day was added so that the court could allow Hernandez to return home two months before his 12-month sentence is finished, effectively sentencing him to only ten months in prison. Add to that the 110 days he is already served, and Hernandez can go home in about seven months, assuming he earns time off for good behavior. “If the sentence was for only twelve months, then federal guidelines forbid going home two months early,” Parks explained.

“But I feel like a spoiled brat because this judge did all he could do to get the sentence reduced and I still don’t think Gilmer should have had a conviction in the first place,” Parks said. “I don’t think he deserves a felony conviction on his record,” he said. “And so I feel like I am asking for even more after we got such a great victory,” said Parks.

“I believe Gilmer Hernandez is not guilty and no day in jail is justified,” Parks stressed.

Parks promised an appeal, and he said he is already working on several angles to get the conviction overturned. In the meantime, he is thankful for the efforts of others to gain a pardon of Hernandez from President Bush.

“Our goal is to make sure that Gilmer Hernandez is not a convicted felon,” Parks concluded.