United States v. Nelson Diaz , 639 F.3d 616 ( 2011 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
No 10-3337
_________
UNITED STATES OF AMERICA
v.
NELSON LUIS DIAZ,
Appellant
________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-07-cr-00147-001)
District Judge: Honorable John E. Jones, III
_______
Argued March 22, 2011
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
(Filed: May 5, 2011)
______
Ronald A. Krauss (Argued)
Lori J. Ulrich
Office of Federal Public Defender
Harrisburg, PA 17101
Attorneys for Appellant
Michael A. Consiglio (Argued)
Eric Pfisterer
Office of United States Attorney
Harrisburg, PA 17108
Attorneys for Appellee
______________
OPINION OF THE COURT
______________
SLOVITER, Circuit Judge.
This court previously vacated one of the two counts of
conviction of Nelson Diaz under 18 U.S.C. § 924(c) because
it was not based on a second predicate offense. On remand to
the District Court for resentencing, the District Court rejected
Diaz’s contention that it was required to merely subtract the
120-month sentence associated with the vacated count. The
Court held that it was permitted to resentence de novo. Diaz
appeals and the case is now before the same panel of judges
who vacated Diaz’s sentence in the first instance. In addition,
we directed the parties to address the Supreme Court’s recent
decision in Pepper v. United States, 131 S. Ct. 1229 (2011).
I.
Nelson Diaz was convicted by a jury of possession
with intent to distribute heroin in violation of 21 U.S.C.
§ 841(a)(1) and two counts of possession of a firearm in
furtherance of drug trafficking in violation of 18 U.S.C.
§ 924(c). In crafting the original sentence, the District Court
was guided by § 4B1.1(c) of the Sentencing Guidelines.
Section 4B1.1(c) provides that for a defendant convicted of
multiple counts, at least one of which is a conviction other
than § 924(c), the applicable Guideline range is the greater of
“the guideline range that results by adding the mandatory
minimum consecutive penalty required by the 18 U.S.C.
§ 924(c) . . . count(s) to the minimum and the maximum of
the otherwise applicable guideline range” for the non-
§ 924(c) count(s) of conviction, or 360 months to life. In
other words, § 4B1.1(c) provides a floor Guideline range of
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360 months to life for career offenders convicted of at least
one § 924(c) count.1
Pursuant to this provision, the District Court
determined, and the parties agreed, that the applicable
Guideline range was the default Guideline of 360 to life.
With this range in mind, the District Court evaluated the
§ 3553(a) factors and declined to vary from the Guideline
range. Accordingly, the District Court imposed a sentence of
480 months—the sum of the 240-month sentence for the
§ 841(a)(1) distribution offense and ten years (or 120 months)
for each of the two § 924(c) counts. This sentence was within
the Guideline range of 360 years to life. Defense counsel
objected to the imposition of a sentence on the second
§ 924(c) count on double jeopardy grounds but the District
Court denied Diaz’s objection.
Diaz appealed the conviction and sentence associated
with the second § 924(c) firearm count. This court in Diaz I
agreed with Diaz and held that the second § 924(c) count
must be based on a separate underlying drug offense. United
States v. Diaz, 592 F.3d 467, 475 (3d Cir. 2010) (Diaz I).
We discussed our remedy for the double jeopardy
violation on two occasions in the opinion. At the conclusion
of the discussion section on the double jeopardy claim, we
stated, “[f]or the reasons set forth, we will vacate one of
Diaz’s two § 924(c) convictions and remand to the District
Court for resentencing. See [United States v.] Taylor, 13 F.3d
[986,] 994 [6th Cir. 1994)] (prescribing the appropriate
remedy in this context).” Diaz I, 592 F.3d at 475. Then, in
the concluding section of the opinion, we stated, “[f]or the
reasons set forth . . . [w]e will vacate one of the two § 924(c)
violations and remand this case to the District Court for
resentencing.” Id. at 476.
1
Under § 3E1.1 and § 4B1.1(c)(3) this default or floor
Guideline range for career offenders convicted of at least
one § 924(c) count can be reduced if the defendant
accepted responsibility. These modifications are not
relevant here because Diaz did not accept responsibility.
3
On remand, Diaz contended that this language in
Diaz I was a specific instruction to nullify or subtract the
120-month sentence associated with the vacated § 924(c)
conviction. The District Court rejected this contention and
held that because the original sentence treated the counts of
conviction as interdependent, de novo sentencing was
appropriate so long as the remanding court did not
specifically direct otherwise. The District Court held that the
language from Diaz I did not amount to a specific instruction
to merely subtract 120 months from the original sentence.
Accordingly, the District Court resentenced Diaz de novo.
Notwithstanding the fact that one of the § 924(c)
counts had been vacated, the applicable Guideline range
under § 4B1.1 was still 360 to life. However, the District
Court refused the government’s request to impose an identical
480-month sentence. The District Court explained that “the
Third Circuit’s mandate has to mean something besides that I
simply cookie cutter resentence you to the same term of
imprisonment that you had.” App. at 113. In other words,
the District Court believed it was necessary “to give some
consideration to the fact that we’re dealing with one less
conviction here.” App. at 115.
Although the District Court noted that the second
§ 924(c) conviction was vacated, it held that “that doesn’t
mean that I can’t take cognizance of the behavior, the conduct
for the purposes of sentencing, and I must do that even
though technically the conviction ceases to stand.” App. at
111. Accordingly, based largely on the fact that there was
one less conviction, the Court reduced Diaz’s sentence from
the original 480 months to 400 months—comprised of 240
months on the distribution offense and 160 months on the
sole § 924(c) offense.
Prior to announcing the new sentence, the District
Court heard from Diaz, his brother, and his attorney, who
argued that since being incarcerated, Diaz had taken
advantage of rehabilitation programs and was “trying to better
[himself].” App. at 105. The Sentencing Memorandum
submitted on Diaz’s behalf explained in more detail the
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rehabilitation efforts Diaz was making. Specifically, he had
enrolled in a GED program, computer training class, and had
received certificates in environmental services and custodial
maintenance. Custodial records also indicated that Diaz was
interacting well with prison staff and other inmates. The
District Court recognized “that the defendant has attempted to
better himself and has a commendable record during his
period of incarceration, which is fine as far as it goes, but
doesn’t really figure much in my calculus at this point.” App.
at 109. No revised presentence report was prepared by
probation for the resentencing proceeding. Diaz again
appeals.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have appellate jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291. To the extent it is alleged
that the District Court made errors of law, our review is
plenary. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir.
2006). Otherwise, our review of a criminal sentence is for
abuse of discretion. Id.III.
A. The propriety of de novo resentencing
In United States v. Miller, 594 F.3d 172, 181-82 (3d
Cir. 2010), this court held that “[w]hen a conviction for one
or more interdependent counts is vacated on appeal, the
resentencing proceeding conducted on remand is de novo
unless we specifically limit the district court’s authority.”
Miller was originally convicted and sentenced for one count
of knowingly receiving child pornography and one count of
knowingly possessing it. Id. at 175. We vacated one of the
sentences because it violated double jeopardy and amounted
to multiple punishments for the same offense. Id. at 176. The
district court had originally grouped the child pornography
counts and sentenced Miller to 46 months as prescribed by
§ 3D1.2(d) of the Sentencing Guidelines. Id. at 180. Because
the original sentence was based on a Guideline provision that
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grouped the counts together, we held that “[i]n recalculating
Miller’s offense level for the [remaining] count, the District
Court could not rely on a discrete sentence previously
imposed for that offense. Instead, the District Court had to
ungroup the two offenses and determine the base offense
level applicable to the [remaining] count alone.” Id. at 181.
Thus, we held that “counts that were grouped pursuant to the
Sentencing Guidelines at the original sentencing are
interdependent, such that the vacation of one of the grouped
counts requires a de novo sentencing on remand unless we
direct otherwise.” Id. at 182.
In addition to grouping under the Sentencing
Guidelines, we have noted other indicia of interdependence.
In United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997),
we held that “when a defendant is found guilty on a
multicount indictment, there is a strong likelihood that the
district court will craft a disposition in which the sentences on
the various counts form part of an overall plan. When a
conviction on one or more of the component counts is
vacated, common sense dictates that the judge should be free
to review the efficacy of what remains in light of the original
plan, and to reconstruct the sentencing architecture upon
remand . . . if that appears necessary in order to ensure that
the punishment still fits both crime and criminal.”
Davis also dealt with the vacation of a § 924(c) count
and we held that the § 924(c) count and underlying offense
“are interdependent and result in an aggregate sentence, not
sentences which may be treated discretely.” Id. at 121. We
noted that “[t]he end result of this policy must be that where a
sentencing judge imposed a multicount sentence aware that a
mandatory consecutive sentence is to be tacked on to it and
the mandatory sentence is later stricken, the judge is entitled
to reconsider the sentence imposed on the remaining counts.”
Id. at 122 (quotations and citations omitted).
That is precisely what happened in this case—the
District Court originally thought it was required to impose a
sentence on the second § 924(c) count (albeit not a 25-year
mandatory sentence), and that count was eventually stricken.
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Accordingly, the Court originally imposed an interdependent
sentence and, on remand, was permitted to resentence the
remaining counts de novo.
An examination of the Sentencing Guidelines that
governed Diaz’s original sentence and the sentencing hearing
itself confirm that this was an interdependent sentence. As
outlined above, § 4B1.1 of the Sentencing Guidelines
contemplates grouped or interdependent sentences for each
§ 924(c) offense and the underlying offense, similar to the
Guideline at issue in Miller. Specifically, § 4B1.1(c) requires
the sentencing judge to add the Guideline range for the
underlying drug offense to the mandatory minimums
associated with each § 924(c) count and then compare that
range to the default career offender range of 360 to life.
Accordingly, although the Guideline range that was actually
applied to Diaz both originally and on remand was 360 to life,
in settling upon that range the District Court had to compare it
to a composite range based on the combination of each count.
Therefore, the sentence bears a direct relationship under the
Guidelines to a consecutively constructed Guideline range
that considers each of the offenses and builds one on top of
the other. The fact that the default 360 to life was longer than
the consecutively constructed Guideline sentence does not
negate the interdependence of the sentence. As the District
Court explained when originally sentencing Diaz within the
Guideline range, “4B1.1 was directly intended to contemplate
circumstances like this.” App. at 56.
The sentencing colloquy also demonstrates that the
sentences were interdependent. When defense counsel
objected to a consecutive sentence being imposed on the
second § 924(c) count, the government attorney suggested
that “the Court had in its mind a sentencing scheme” and
suggested that the District Court merely restructure the
sentence so as not to impose a consecutive sentence on the
second § 924(c) count. App. at 61. The Court specifically
affirmed that it had a sentencing scheme in mind—indicating
that it viewed the sentences as interdependent.
7
Based on the applicable Guidelines, the sentencing
colloquy, and the contingent nature of the § 924(c) offense,
the sentences in this case were interdependent. Therefore,
absent specific instructions to the contrary, the District Court
appropriately resentenced Diaz de novo. Thus, we turn to
whether there was any such instruction.
Diaz contends that the reference in Diaz I to the Sixth
Circuit’s decision in United States v. Taylor, 13 F.3d 986, 994
(6th Cir. 1994), with a parenthetical description of Taylor as
“prescribing” the “appropriate remedy” on remand,
unambiguously dictated limited resentencing. In Taylor, as
we did in Diaz I, the Sixth Circuit vacated a second § 924(c)
conviction because it was not based on a second underlying
predicate offense. Id. In issuing its remedy, the Sixth Circuit
“remand[ed] to the district court with an order to vacate [the
defendant’s] conviction and sentence on the second [§ 924(c)
count].” Id. The Court directed that the defendant, “should
remain sentenced to 27 months on Count 1 [the drug
trafficking count], and to 5 years on the single § 924(c)(1)
conviction.” Id.
There is no question that Taylor involved an explicit
instruction regarding what the new sentence should be on
remand. However, a mere “see” citation to a case from
another circuit, even with an explanatory parenthetical, does
not constitute the kind of specific limitation that we held was
necessary to overcome the default de novo standard we
established in Miller. In contrast, in Diaz I we provided a
very general instruction, stating that “we remand this case to
the District Court for resentencing.” 592 F.3d at 476. If we
had intended the District Court to simply subtract the 120-
month sentence associated with the vacated count, we could
have easily so stated. We did not. Accordingly, the District
Court correctly concluded that we did not limit its ability to
resentence de novo and that because the original sentence
contained interdependent counts, de novo resentencing was
permitted.2
2
In so holding, we are careful to note, as we did in
Miller, that we take no position on whether de novo
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B. Post-sentencing rehabilitation
Having concluded that de novo resentencing was
appropriate on remand, we turn to Diaz’s alternative
argument: that the District Court failed to fully consider
Diaz’s post-incarceration rehabilitation. Subsequent to the
resentencing hearing, the Supreme Court issued its opinion in
Pepper v. United States, 131 S. Ct. 1229 (2011), which
controls our analysis.
Pepper was originally sentenced to 24-months
imprisonment, which represented a significant downward
departure from the Guideline range. The government
appealed the sentence and the Eighth Circuit held that the
sentencing judge ignored the Guidelines and impermissibly
departed out of a “desire to sentence [the defendant] to the
shortest possible term of imprisonment that would allow him
to participate in the intensive drug treatment program at the
federal prison.” United States v. Pepper, 412 F.3d 995, 999
(8th Cir. 2005) (Pepper I).
On remand, the district court again sentenced Pepper
to 24-months imprisonment, this time based largely on
Pepper’s rehabilitation while incarcerated. The Eighth
Circuit once more reversed, holding that “evidence of
[defendant]’s post-sentencing rehabilitation is not relevant
and will not be permitted at resentencing because the district
court could not have considered that evidence at the time of
the original sentencing.” United States v. Pepper, 486 F.3d
408, 413 (8th Cir. 2007) (Pepper II).
The Supreme Court reversed, and held that the district
court was permitted to sentence de novo and consider the
defendant’s post-incarceration rehabilitation. Pepper, 131 S.
Ct. at 1236. The Supreme Court emphasized that sentencing
judges exercise wide discretion in the types of evidence they
may consider when imposing a sentence and that, consistent
resentencing is the default approach after a count
contained in a non-interdependent sentence has been
vacated. See Miller, 594 F.3d at 180.
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with that discretion, no restrictions should be placed on the
district court’s ability to consider evidence of post-
incarceration rehabilitation. Id. at 1235-36.
Because Pepper was not announced until after the
District Court had resentenced Diaz, the court could not have
known that it was permitted to consider Diaz’s post-
sentencing rehabilitation consistent with the Supreme Court’s
decision in Pepper. As outlined above, Diaz and his attorney
both explained at the resentencing hearing that Diaz had a
positive record since he had been incarcerated and was
attempting to better himself. The District Court did in fact
permit the defense to offer additional evidence at the
resentencing without restricting the nature of the evidence it
could proffer. Nonetheless, the District Court said that Diaz’s
rehabilitation “is fine as far as it goes, but doesn’t really
figure much in my calculus at this point.” App. at 109.
Arguably, as the government contends, this language
indicates that the District Court did, in fact, weigh the
evidence of rehabilitation but concluded it was not, in the
end, worth much. Just as likely, Diaz’s rehabilitation did not
“figure much” into the calculus because the District Court
was unsure that rehabilitation was something courts should or
could actively consider while resentencing.
This latter view gains credence when one considers
prevailing circuit case law and Guideline provisions at the
time of resentencing which, in contrast to Pepper, limited a
district court’s consideration of post-sentencing rehabilitation.
In United States v. Sally, 116 F.3d 76 (3d Cir. 1997), we held
that “post-offense rehabilitation efforts, including those which
occur post-conviction, may constitute a sufficient factor
warranting a downward departure provided that the efforts are
so exceptional as to remove the particular case from the
heartland in which the acceptance of responsibility guideline
was intended to apply.”
However, subsequent to Sally, in 2000, the Sentencing
Guidelines were amended to include § 5K2.19, which
provides that “[p]ost-sentencing rehabilitative efforts, even if
exceptional, undertaken by a defendant after imposition of a
10
term of imprisonment for the instant offense are not an
appropriate basis for a downward departure when
resentencing the defendant for that offense.” This revision, in
force at the time of Diaz’s resentencing, seems to negate the
already narrow circumstances under which courts could
consider post-sentencing rehabilitation under our decision in
Sally. Moreover, in United States v. Lloyd, 469 F.3d 319, 325
(3d Cir. 2006), we affirmed the validity of § 5K2.19 and held
that courts should not consider a defendant’s post-sentencing
rehabilitation efforts when resentencing except in “unusual”
cases.
The Supreme Court in Pepper specifically addressed
§ 5K2.19, dismissed it as merely advisory and questioned the
validity of the policy rationales motivating limitations on
post-sentencing rehabilitation evidence. 131 S. Ct. at 1247-
48. Accordingly, to the extent that the District Court was
aware of the limitations we had imposed on consideration of
post-sentencing rehabilitation in Lloyd and Sally and relied on
those limitations, that reliance was erroneous in light of
Pepper. The government conceded as much at oral argument
when it agreed that Lloyd’s continuing validity was thrown
into question by Pepper.3 The fact that no revised
3
Importantly, we note, as the Supreme Court did in
Pepper, that to the extent that a court remands for a
limited resentencing proceeding, and not a de novo
proceeding, limitations on the consideration of post-
sentencing rehabilitation may continue to be appropriate.
See Pepper, 131 S. Ct. at 1249 n.17. In that vein, it is
worth noting that Lloyd itself dealt with a remand pursuant
to Booker, and, in that context, the exclusion of post-
sentencing rehabilitative evidence may still be proper—an
issue we need not reach here. This subtle distinction may
not have been discerned by the District Court who could
have nevertheless been guided by Lloyd. Indeed, the
distinction between a limited Booker remand and de novo
remand seems to have made little difference to the
Supreme Court, which cited Lloyd as emblematic of the
circuit split regarding the role of post-sentencing
rehabilitation evidence. Pepper, 131 S. Ct. at 1239 n.6.
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presentence report was prepared documenting any alleged
post-incarceration rehabilitation further supports a conclusion
that the issue of rehabilitation was not fully considered.
Given the ambiguity in the record, the interests of
justice demand that we remand (yet again) to the District
Court so that Diaz and the District Court have every
opportunity to take counsel from the Supreme Court’s
instructions in Pepper: that is, that evidence of post-
sentencing rehabilitation may be considered when
resentencing de novo. The marginal effect of our decision
may be slim and the District Court may conclude that no
alteration of the sentence is necessary. But, out of an
abundance of caution and due deference to the Supreme
Court’s clear instructions in Pepper, we vacate the judgment
of sentence imposed by the District Court and remand for a de
novo resentencing proceeding including full consideration of
Diaz’s post-incarceration rehabilitation.
IV.
For the foregoing reasons, we will vacate the judgment
of sentence and remand to the District Court for proceedings
consistent with this opinion.
We also note that Pepper, Sally and § 5K2.19 deal
with requests for downward departures or variances based
on post-sentence rehabilitation, whereas Diaz primarily
urged a sentence at the bottom of the applicable Guideline
range. Because the relief Diaz seeks is less extraordinary,
post-sentencing rehabilitation should be considered. Nor
does Pepper indicate that evidence of post-sentencing
rehabilitation is only relevant to requests for downward
departures or variances. See id. at 1236. Instead, Pepper
discusses the importance of post-sentencing rehabilitation
in the context of evaluating the § 3553(a) factors which, in
addition to controlling whether a variance should be
granted, also determine where within a Guideline range a
defendant should be sentenced. Id. at 1247.
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