United States v. Onelio Diaz ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No.06-14838 ELEVENTH CIRCUIT
NOV 08, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-20137-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONELIO DIAZ,
Defendant-Appellant.
--------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
--------------------------------------------
(November 8, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Onelio Diaz appeals his consecutive sentences of 108
months’ imprisonment and 84 months’ imprisonment for conspiracy to affect
commerce by robbery, 18 U.S.C. § 1951(a), and possession of a firearm in
furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A).1 No reversible error
has been shown; we affirm.
Diaz first argues that the district court erred in denying his request to reduce
his sentence for acceptance of responsibility, U.S.S.G. § 3E1.1. We review a
district court’s factual determinations about a reduction for acceptance of
responsibility for clear error. United States v. Williams, 408 F.3d 745, 756 (11th
Cir. 2005); see also United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir.
2005) (noting that, because “[t]he sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility,” “the determination of the
sentencing judge is entitled to great deference on review”) (internal quotation
omitted); United States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994) (“The
decision to deny a reduction for acceptance of responsibility is discretionary . . .
.”). The Sentencing Guidelines allow an offense level reduction where a
defendant “clearly demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a).
1
Diaz worked as part of a security team who transported large cash shipments from international
flights arriving at the Miami airport to the Federal Reserve Bank in Miami. Diaz told his friend,
Karls Monzon, about these cash shipments and that security around these shipments was lax.
Monzon and others then robbed one of these shipments when Diaz was working as part of the
security team; and the group stole over seven million dollars. Diaz received a share of the proceeds
of the robbery.
2
We see no clear error in the district court’s denial of a reduction for
acceptance of responsibility in this case. Although Diaz entered a guilty plea,
Special Agent Alejandro Peraza testified that Diaz needed prodding to tell the
truth about his involvement in the robbery and initially denied knowing that
Monzon had committed the robbery. Agent Peraza also testified that he believed
that Diaz did not tell authorities everything that he knew about money seized
during the robbery.
We also conclude that the district court committed no clear error in denying
Diaz a minor-role reduction. Diaz asserts that, although he alerted Monzon about
the money shipments at the Miami airport and the lax security surrounding these
shipments, Diaz should receive a minor-role reduction because he did not actually
commit the robbery.
That Diaz has preserved his objection about receiving a minor-role
reduction is not clear; but even assuming that this objection was preserved, we see
no clear error in denying Diaz a minor-role reduction. See United States v. De
Varon, 175 F.3d 930, 937, 940 (11th Cir. 1999) (en banc) (explaining that we
review the denial of a minor role reduction for clear error and that a sentencing
court should consider “the defendant’s role in the relevant conduct for which [he]
has been held accountable at sentencing”). Diaz provided the information
3
necessary for the robbery to occur; and he received a share of the proceeds of the
robbery. We affirm the district court’s decision not to grant Diaz a minor-role
reduction.2
Diaz next argues that the district court erred in sentencing him to a seven-
year consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) because a
firearm was brandished in this case. He asserts that the district court instead
should have sentenced him to no imprisonment or to no more than five years’
imprisonment because, according to Diaz, he was unaware that a firearm would be
used during the robbery. Diaz explains that one of his co-conspirators decided to
bring a gun to the robbery without informing the other conspirators.
“Where a defendant brandishes a firearm during the course of a crime of
violence, [section] 924(c) explicitly requires the imposition of a seven-year
sentence ‘in addition to’ whatever punishment is due for the crime of violence
itself.”3 United States v. Dowd, 451 F.3d 1244, 1251 (11th Cir. 2006). At his
2
Diaz also appears to challenge the district court’s denial of safety-valve relief, 18 U.S.C. §
3553(f); U.S.S.G. § 5C1.2; but he concedes that safety-valve relief does not apply to him because
his case did not involve a drug-related crime. And Diaz’s lawyer informed the district court at
sentencing that safety-valve relief “was not applicable at all.” Diaz is correct that he is ineligible for
safety-valve relief because, among other reasons, he was not convicted of a drug offense. See United
States v. Figueroa, 199 F.3d 1281, 1282 (11th Cir. 2000) (“The safety valve provision . . . requires
a district court to sentence a defendant in certain drug-possession cases without regard to any
statutory minimum sentence . . . .”).
3
The Supreme Court has explained that increasing a defendant’s minimum sentence based on a
judicial finding of brandishing is constitutional. Harris v. United States, 122 S.Ct. 2406, 2420
4
change-of-plea hearing, Diaz did not object to the government’s factual proffer,
which included the statement that Monzon and another person brandished at least
one firearm during the robbery. As the district court explained, it was reasonably
foreseeable that a gun would be brandished during the robbery in this case of
several million dollars; and we conclude that it was not reversible error for the
district court to sentence Diaz to a seven-year sentence pursuant to section
924(c)(1)(A)(ii).4
Therefore, we affirm Diaz’s sentence.5
AFFIRMED.
(2002). And we review for clear error the district court’s factual findings about sentencing. United
States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007).
4
To the extent that Diaz is attempting to challenge his conviction under 18 U.S.C. § 924(c)(1)(A)
for possession of a firearm in furtherance of a crime of violence, we reject this argument as without
merit. Diaz has raised no argument on appeal that his guilty plea to this charge was not knowing and
voluntary; so this claim is abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th
Cir. 1998) (“[B]ecause [defendant] has offered no argument on this issue on appeal, we find that he
has abandoned it.”).
5
We note that, although Diaz asserts that his sentence was unreasonable, he offers no argument
other than the claims we have addressed on why his sentence was unreasonable. Therefore, Diaz has
abandoned this issue. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
5