United States v. Carlos Diaz

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11848 MAY 04, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 07-60230-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS DIAZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 4, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Carlos Diaz (“Diaz”) appeals his convictions and sentences for conspiracy to
possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C.
§§ 841(a)(1),(b)(1)(A), 846 (count one); attempt to possess with intent to distribute
five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (count
two); and carrying a firearm during and in relation to a drug trafficking crime, 18
U.S.C. § 924(c)(1)(A) (count three). The district court sentenced Diaz to
concurrent terms of 160 months of imprisonment on counts one and two, and a
consecutive term of 60 months of imprisonment on count three. After thorough
review of the record and briefs, we AFFIRM his convictions and sentences.
I. BACKGROUND
In April 2007, Carmello Crespo-Dones (“Crespo-Dones”) and Diaz met with
two confidential informants, including Gildardo Zapada (“Zapada”), to discuss the
purchase of ten kilograms of cocaine. R11 at 120-21, 125-26. When Zapada
questioned the unexpected presence of Diaz at the meeting, Crespo-Dones
reassured Zapada that Diaz was a friend and a drug dealer with many contacts who
would be useful for future deals. Id. at 128. Diaz took an active role during the
meeting. He requested a price reduction and suggested that the drug sale be broken
into two transactions. Id. at 129. The deal ultimately fell through, however,
because Diaz and other potential purchasers believed it was too risky. Id. at 134.
Diaz later informed Zapada that he would be his contact for any future drug
2
deals. Id. at 137. Diaz emphasized that he was very careful in his drug
transactions, he always carried a gun, and he would shoot anybody if something
went wrong. Id. at 139. Diaz told Zapada about a potential buyer in New Jersey.
Id. at 139-40, 142. Diaz gave Zapada his phone number and told him he would
“keep in touch.” Id. at 142. A few weeks later, Diaz called Zapada to see if he
could purchase two to four kilograms of cocaine, but Zapada insisted that the
minimum was ten kilograms. Id. at 143-44.
Throughout the summer, Zapada received several phone calls from Crespo-
Dones about purchasing the ten kilograms of cocaine. Id. at 146. At the end of
August 2007, Crespo-Dones advised Zapada that Diaz had most of the money
ready and would contact Zapada within the next few days. Id. at 145-47.
On 1 September 2007, Diaz called Zapada and stated his New Jersey buyer
had come to Miami to purchase the drugs. Id. at 148. On 4 September, Diaz met
with Zapada at a restaurant in Hialeah, Florida. Id. at 148-49. Diaz showed
Zapada his gun, stated he does not play games, and reiterated that he would shoot
everybody if necessary. Id. at 150. Zapada believed Diaz and felt afraid. Id. Diaz
advised that he had personally seen the money but his New Jersey contact was
concerned about making such a large purchase. Id. at 151. After further
negotiations with Diaz, Zapada agreed to sell seven kilograms of cocaine for
3
$120,000, with the final three kilograms being transacted at a future date. Id. at
151-52. Over the next few days, Diaz and Zapada hammered out the details of the
transaction. Id. at 155.
On 7 September, Diaz arrived at the designated meeting place with two other
men, Dexter DeBernard and Eduardo Perez.1 Id. at 201-02, 206. Diaz entered the
restaurant with DeBernard and introduced him to Zapada as “the money guy” from
New Jersey. Id. at 156, 203. Although DeBernard expressed concern that Zapada
might be a cop, DeBernard and Diaz eventually agreed to return to the restaurant
with the money in an hour. Id. at 157-58. Upon their return, Zapada got into their
vehicle and inspected a plastic bag of money. Id. at 160. Zapada then exited their
vehicle so that they could go to his apartment to retrieve the cocaine. Id. at 160-
61.
Shortly thereafter, officers of the Sunrise Police Department conducted a
traffic stop of the suspect vehicle and obtained consent to search it. Id. at 207-08,
227-29. The officers recovered from the vehicle a plastic bag containing $113,330
in cash, packaged in “quick count bundles” of $1000 increments. Id. at 208-09,
216. Prior to the bag being opened, Diaz informed one of the officers that it was
“just a bag of clothes.” Id. at 230. An officer also confiscated a loaded handgun
1
Both men were indicted with Diaz as co-conspirators. R1-1.
4
from Diaz’s waistband. Id. at 209, 230-31.
In his defense, Diaz testified that a 2005 motorcycle accident had resulted in
traumatic brain injuries and a total loss of memory. Id. at 241-43. Diaz further
stated that when he hears three or more voices, “[i]t becomes like a whisper and my
eyes get dizzy and my head starts spinning.” Id. at 243. While Diaz admitted
meeting with Zapada and Crespo-Dones on multiple occasions, he insisted he had
no intent to participate in any drug transactions. Id. at 245-49. He explained that
his gun was not for criminal purposes but for self-protection because he lived in a
rough neighborhood. Id. at 250. When confronted with his post-arrest statement
that he was being paid $500 per kilogram of cocaine, Diaz responded, “Well, the
truth, the truth about that was that I never really discussed price with Mr.
[De]Bernard.” Id. at 251. Diaz further asserted that he was “not a hundred percent”
mentally. Id. at 253. He admitted that he knew what he was doing, but testified
that “I didn’t have a full understanding of everything, and I was easily used to do a
crime. But not because I chose to.” Id.On appeal, Diaz raises multiple issues related to four general topics:
sufficiency of the evidence as to each conviction, the district court’s evidentiary
rulings, cumulative error, and multiple sentencing errors. We address each one in
turn.
5
II. DISCUSSION
A. Sufficiency of the Evidence
We review de novo whether there is sufficient evidence in the record to
support a jury’s verdict. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir.
2009). We will affirm if “a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” Id. (quotation marks and citation
omitted). All credibility choices and conflicts in the evidence must be resolved in
the government’s favor. See id.
1. Count One
Diaz was charged in count one with conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1),(b)(1)(A), 846. To establish a conspiracy, the government must prove
that an agreement existed between two or more persons to commit a crime and that
the defendant knowingly and voluntarily joined or participated in that agreement.
United States v. Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). The knowledge
component is satisfied if the defendant was aware of the conspiracy’s primary
purpose. Id. Evidence of the agreement can be purely circumstantial, and may
include inferences based on the alleged participants’ conduct. Id.Here, there was ample evidence demonstrating that Diaz knowingly and
6
voluntarily participated in the charged conspiracy. According to Zapada’s
testimony, Diaz bargained over both the price and quantity of cocaine during their
first meeting. It was in part Diaz’s decision not to complete that deal because he
believed it was too risky a purchase. Diaz continued to take a pivotal role in
subsequent drug negotiations, acting as Zapada’s contact and securing the New
Jersey buyer. Furthermore, it was Diaz who negotiated the final terms of the
cocaine purchase, arranged the details of the transaction, initially inspected the
purchase money, and ultimately met with Zapada and DeBernard to execute the
drug deal.
Although Diaz testified that he was merely present at the meetings and had
no intent to participate in any drug transactions, the jury chose not to credit his
testimony. “We have recognized that a statement by a defendant, if disbelieved by
the jury, may be considered as substantive evidence of the defendant’s guilt.”
United States v. McDowell, 250 F.3d 1354, 1367 (11th Cir. 2001) (quotation marks
and citation omitted). Consequently, the jury could reasonably conclude from
Diaz’s non-credible testimony that he had the requisite guilty knowledge and intent
to participate in the drug conspiracy. See id. (explaining that the jury was free to
infer from appellants’ false statements that they knew and intended to import
cocaine). Viewing the evidence in the light most favorable to the verdict, we
7
conclude that there was sufficient evidence to support Diaz’s conviction of
conspiracy in count one.
2. Count Two
Count two charged Diaz with attempt to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846. A person is guilty of attempt if he has the specific intent to commit the
underlying crime and he took actions that constituted a “substantial step” toward the
commission of that crime. United States v. Yost, 479 F.3d 815, 819 (11th Cir.
2007) (per curiam). “A substantial step can be shown when the defendant’s
objective acts mark his conduct as criminal and, as a whole, strongly corroborate
the required culpability.” Id. (quotation marks and citation omitted).
The evidence at trial reveals sufficient evidence that Diaz had the specific
intent to commit the underlying crime at issue and that he took substantial steps to
initiate, facilitate, and execute the purchase of seven kilograms of cocaine. As
previously discussed, Diaz had multiple discussions with Zapada about purchasing
cocaine, introduced Zapada to a cocaine buyer, and negotiated the terms of the final
deal. The fact that Diaz was arrested before the deal was consummated is
immaterial. See United States v. Rodriguez, 765 F.2d 1546, 1552 (11th Cir. 1985).
Moreover, based on the quantity of drugs involved, the jury could reasonably
8
conclude that Diaz intended to distribute the cocaine. See United States v.
Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005) (concluding that a jury may infer
a defendant’s intent to distribute two kilograms of cocaine based on the amount of
narcotics involved). While Diaz argues he only intended to act as a broker by
introducing the parties, a broker can still be found guilty of possession with intent
to distribute cocaine. See Rodriguez, 765 F.2d at 1551-53 (affirming drug
conspiracy conviction for defendant who acted as a broker by placing a government
agent into contact with a drug source). We thus find ample evidence to support
Diaz’s conviction of attempt on count two.
3. Count Three
Diaz was convicted in count three of carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Diaz concedes
on appeal that if we affirm his convictions on counts one and two, then he is guilty
of count three. In light of our affirmance of his convictions on counts one and two,
we find sufficient evidence to support his conviction on count three as well.
B. Evidentiary Rulings
Diaz next argues that the district court erred by admitting various evidence
that prejudiced his case. We review a district court’s evidentiary rulings for abuse
of discretion. United States v. Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009),
9
cert. denied (U.S. Apr. 5, 2010). Even if we find an abuse of discretion, we will not
reverse the conviction if the error was harmless. Id.
1. Leading Question
Diaz first challenges the court’s ruling on a leading question. During direct
examination of Zapada, the following exchange took place:
[PROSECUTOR]: Who is that individual that was going to buy 10
kilos of cocaine?
[ZAPADA]: I know him as Carmello.
[PROSECUTOR]: Carmello Crespo-Dones?
[ZAPADA]: Yes.
R11 at 125. Diaz objected to the question as leading, and the court overruled his
objection. Id. On appeal, Diaz contends that without this leading question, it is
possible Zapada was testifying about someone else.
Federal Rule of Evidence 611(c) provides that “[l]eading questions should
not be used on the direct examination of a witness except as may be necessary to
develop the witness’ testimony.” Fed. R. Evid. 611(c). Here, the government’s
question was necessary to clarify that Zapada was referring to Carmello Crespo-
Dones in order to avoid the very misidentification that Diaz highlights. The district
court did not abuse its discretion in permitting this question.
2. Zapada’s Testimony About Crespo-Dones’ Statements
10
Diaz asserts that Zapada’s testimony as to statements made by Crespo-Dones
constituted impermissible hearsay. Specifically, Diaz challenges Zapada’s
testimony that Crespo-Jones introduced Diaz as a friend and drug dealer. Diaz also
objects to Zapada’s testimony that Crespo-Jones called Zapada at the end of August
2007 and said that Diaz was almost ready to execute the drug deal.
The district court admitted Zapada’s testimony about Crespo-Dones’
statements under Federal Rule of Evidence 801(d)(2)(E). R11 at 128, 145. This
rule allows statements of a co-conspirator if the government proves by a
preponderance of the evidence that a conspiracy existed, the conspiracy included
the declarant and the defendant, and the statement was made as part of the
conspiracy. See United States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir.
2006).
We find no abuse of discretion in this matter. The evidence established that
Crespo-Dones conspired with Diaz to purchase cocaine from Zapada. Crespo-
Dones introduced Diaz as a friend and a drug dealer in order to reassure Zapada that
Diaz was knowledgeable about their intended drug transaction and would be useful
for future drug deals. Likewise, Crespo-Dones called Zapada during August 2007
to report on Diaz’s progress in securing the drug purchase money. Both of Crespo-
Dones’ challenged statements were made in furtherance of the drug conspiracy.
11
Accordingly, Crespo-Dones’ statements were admissible under Federal Rule of
Evidence 801(d)(2)(E) as statements by a co-conspirator in furtherance of a
conspiracy. See id.Diaz further asserts for the first time on appeal that admission of Crespo-
Dones’ statements violated his Sixth Amendment right of confrontation because
Crespo-Dones did not testify. Our review is limited to plain error as Diaz did not
raise a constitutional objection in the district court. See United States v. Arbolaez,
450 F.3d 1283, 1291 (11th Cir. 2006) (per curiam). Diaz must therefore
demonstrate that an error occurred, it was plain, it affected his substantial rights,
and it “seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation marks and citation omitted).
No error, plain or otherwise, has been shown. Although the Confrontation
Clause prohibits the admission of “testimonial” statements unless the witness is
unavailable and there was a prior opportunity for cross-examination, the Clause
does not bar the admission of non-testimonial statements. See Crawford v.
Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). The Supreme Court
has noted that statements in furtherance of a conspiracy are “by their nature . . . not
testimonial.” Id. at 56, 124 S. Ct. at 1367.
We have likewise held that a co-conspirator’s statements to a confidential
12
informant, which are admissible under Federal Rule of Evidence 801(d)(2)(E), are
not “testimonial” and thus do not violate a defendant’s Sixth Amendment
confrontation rights. Underwood, 446 F.3d at 1347-48. We explained in
Underwood that a co-conspirator’s recorded conversations “clearly were not made
under circumstances which would have led him reasonably to believe that his
statement[s] would be available for use at a later trial.” Id. at 1347. Had the co-
conspirator known the true identity of the confidential informant, he would never
have spoken to her in the first place. See id.The same holds true here. When Crespo-Dones referred to Diaz as a drug
dealer or discussed the purchase of drugs, Crespo-Dones did not anticipate that his
statements would be used at some future trial. Nor would he have made the
statements if he knew that Zapada was a confidential informant. As such, Crespo-
Dones’ statements were not “testimonial” in nature and their admission did not
violate Diaz’s Sixth Amendment confrontation rights. See id.
3. Zapada’s Testimony That He Felt Afraid
Diaz contends that the district court should have excluded as irrelevant
Zapada’s testimony that he felt afraid when Diaz displayed his gun. We disagree.
Evidence is relevant if it tends “to make the existence of any fact that is of
consequence to the determination of the action” more or less probable. Fed. R.
13
Evid. 401. Here, count three charged Diaz with carrying a firearm during and in
relation to a drug trafficking crime. Diaz asserted in his opening statement that he
carried a firearm for personal safety because of his neighborhood. In anticipation of
this defense, Zapada testified that Diaz displayed his gun during their final drug
meeting and reiterated his previously-stated intent to “start shooting everybody” if
anything went wrong. R11 at 150. Zapada’s testimony that he felt afraid was
relevant to show that Diaz was carrying his gun for the purpose of protecting
himself during the drug deal, not because he lived in a rough neighborhood.
Because Zapada’s testimony was relevant to establish count three and to rebut
Diaz’s anticipated defense, the district court did not abuse its discretion in
overruling Diaz’s objection.
4. Zapada’s Testimony About Recorded Conversations
Diaz alleges that the district court improperly allowed Zapada to testify about
his recorded conversations with Diaz and Crespo-Dones. Because no recordings or
transcripts were admitted, Diaz contends that Zapada’s testimony was
untrustworthy and prejudicial.
We find no abuse of discretion. Diaz objected to Zapada’s testimony about
“conversations that are memorialized on these CDs that are all in Spanish,” but he
gave no basis for the objection. Id. at 153. On appeal, Diaz cites no legal precedent
14
for the proposition that a witness cannot testify about a recorded conversation if the
recording or transcript of the recording is not introduced. The sole case he cites
cuts against him, as it explains that Federal Rule of Evidence 602 permits a witness
to testify about a matter within his personal knowledge. See United States v.
Castro, 89 F.3d 1443, 1454 (11th Cir. 1996). This rule would apply here. No abuse
of discretion has been shown.
5. Diaz’s Motives for Trial
At trial, Diaz was asked by his attorney why he chose to go to trial. Diaz
responded that, “I didn’t really choose to go to trial. I mean, I had a lawyer who
really didn’t want to help me in the beginning. He had me – ” R11 at 253-54. The
government objected and the court sustained the objection on the grounds that
Diaz’s reasons not to go to trial or his communications with a lawyer were not
relevant. Id. at 254. On appeal, Diaz submits his testimony was relevant to the
truthfulness of his testimony about his confession.
Diaz’s argument is without merit. Diaz was permitted to testify that he was
coerced into confessing and to explain his reasons for wanting to testify at trial. Id.
at 252-53. Diaz does not specify on appeal what further information he would have
provided in response to the challenged question that would have been relevant to
the veracity of his police interview. Nor does Diaz identify any other material fact
15
that would have been made more or less probable by his testimony regarding his
motives for trial. See Fed. R. Evid. 401. We therefore conclude that the district
court did not abuse its discretion in ruling that Diaz’s reasons for choosing to
proceed to trial were irrelevant.
C. Cumulative Error
Diaz maintains that the cumulative effect of the district court’s putative errors
discussed in Section IIB warrant the grant of a mistrial.
We have recognized that “the ‘cumulative effect’ of multiple errors may so
prejudice a defendant’s right to a fair trial that a new trial is required, even if the
errors considered individually are non-reversible.” United States v. Ramirez, 426
F.3d 1344, 1353 (11th Cir. 2005) (per curiam) (quotation marks and citation
omitted). Of course, the absence of any individual error precludes the existence of
any cumulative error. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir.
2004) (per curiam) (“‘If there are no errors or a single error, there can be no
cumulative error.’”). Having found no individual error by the district court, we also
reject Diaz’s claim of cumulative error. See id.D. Sentencing Errors
In his final argument, Diaz raises the following challenges to his sentence:
(1) the district court erroneously denied a minor role reduction; (2) the district court
16
erroneously denied a downward departure for diminished capacity; (3) the district
court erred in ruling that his sentence for count three should run consecutively to his
sentence for counts one and two; (4) the district court erroneously applied a two-
level enhancement for obstruction of justice and violated Diaz’s Sixth Amendment
right to a jury trial; and (5) the district court erroneously denied a request for a
variance under 18 U.S.C. § 3553, which resulted in an unreasonable sentence.
We review a sentence for both procedural and substantive reasonableness
under a deferential abuse-of-discretion standard. See United States v. Pugh, 515
F.3d 1179, 1190 (11th Cir. 2008). To be procedurally reasonable, the sentence
must be properly calculated under the advisory Sentencing Guidelines and reflect
consideration of the sentencing factors under 18 U.S.C. § 3553(a).2 See id. A
2
These factors are as follows:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range . . .;
17
sentence is substantively reasonable if, under the totality of the circumstances, it
achieves the purposes of § 3553(a). See id. at 1191. We may apply a presumption
of reasonableness to a sentence within the guidelines range. See id. at 1190. The
onus of demonstrating that a sentence is unreasonable lies on the party challenging
the sentence. See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).
1. Minor Role Reduction
Diaz first contends the district court erred in denying his request for a minor
role reduction. He argues that his role as a broker meant he did not control or
exercise authority over others, or perform functions vital to the criminal conduct.
We review a district court’s factual determination regarding a defendant’s
role in an offense for clear error. See United States v. De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc). Under the sentencing guidelines, a district court may
decrease the offense level by two if the defendant was a minor participant in the
criminal activity. U.S.S.G. § 3B1.2(b) (2009). A minor participant means someone
“who is less culpable than most other participants, but whose role could not be
described as minimal.” Id., comment. (n.5). The defendant bears the burden of
(5) any pertinent policy statement . . .;
(6) the need to avoid unwarranted sentence disparities . . .; and
(7) the need to provide restitution to any victim of the offense.
18 U.S.C. § 3553(a) (2009).
18
proving his minor role by a preponderance of the evidence. De Varon, 175 F.3d at
939.
The district court’s factual determination that Diaz played a major role as “an
active broker” in the crimes is not clearly erroneous. R14 at 13-14. Diaz was held
accountable for the seven kilograms of cocaine that Zapada agreed to sell to
DeBernard. The evidence at trial established that Diaz communicated with Crespo-
Dones and Zapada about the transaction, secured DeBernard as the buyer, arranged
the details of the exchange, attended the drug meeting, verified the purchase money,
and negotiated the terms for the final sale. Without Diaz, it is doubtful that the drug
transaction would have even occurred. The district court correctly denied a minor
role reduction.
2. Departure for Diminished Capacity
Diaz next maintains that he was entitled to a downward departure for
diminished capacity pursuant to U.S.S.G. § 5K2.13, which provides that a court
may depart below the applicable guideline range if the defendant committed the
offense while suffering from a significantly reduced mental capacity which
contributed substantially to the commission of the offense. See U.S.S.G. § 5K2.13
(2009). According to Diaz, his age, education, employment record, severe
motorcycle injuries, and minor role in the offenses rendered his case atypical, such
19
that he was entitled to a downward departure for diminished capacity under Koon v.
United States, 518 U.S. 81, 116 S. Ct. 2035 (1996).3
We lack jurisdiction to review the district court’s denial of a downward
departure in this case. Unless the district court incorrectly believed that it lacked
the authority to grant a downward departure, we have no jurisdiction to review its
decision. See United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).
Here, the district court rejected a downward departure because it found that “while
[Diaz] had an unfortunate accident, there is no indication that it led to a diminished
capacity or that it really played any role in this offense.” R14 at 14. The record
thus reflects the district court recognized its authority to make a downward
departure but found that the facts did not warrant one. Accordingly, we lack
jurisdiction to review the district court’s decision. See Dudley, 463 F.3d at 1228.
3. Consecutive Sentence
Diaz argues that the district court erred in ordering that his sentence on count
three, for violating 18 U.S.C. § 924(c), should run consecutively to his sentences for
his drug offenses in counts one and two.
Diaz’s argument is foreclosed by our decision in United States v. Segarra,
3
In Koon, the Supreme Court instructed that before a district court may depart
downward, it must first find the case contains aspects “unusual enough for it to fall outside the
heartland of cases” in the Sentencing Guidelines. 518 U.S. at 98, 116 S. Ct. at 2046.
20
582 F.3d 1269 (11th Cir. 2009) (per curiam), petition for cert. filed, (U.S. No. 09-
8536) (Jan. 8, 2010). In Segarra, we concluded that the plain language of 18 U.S.C.
§ 924(c) requires consecutive sentences for a defendant convicted of a § 924(c)
offense and an underlying drug crime. See id. at 1272-73. Accordingly, the district
court correctly imposed a consecutive sentence for Diaz’s § 924(c) conviction.
4. Obstruction of Justice Enhancement
Diaz also challenges the district court’s application of a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. He contends the
enhancement categorically violated his Sixth Amendment right to a jury trial under
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and his Fifth
Amendment right to a grand jury indictment and due process, because the
enhancement was never presented to the jury so there was no jury verdict that found
Diaz significantly hindered the prosecution. Additionally, Diaz submits there was
insufficient evidence to support the enhancement.
The record reflects that Diaz initially informed the court in November 2007
that he was under medical treatment for brain damage from a past accident and was
experiencing problems understanding his attorney. R6 at 2-5. However, the results
of a government-sponsored mental examination revealed that he was malingering
and was competent to stand trial. R1-44, 86, 94; R11 at 3. In March 2008, Diaz
21
decided to plead guilty to counts one and three of the indictment. R1-64. At his
plea hearing, both Diaz and his attorney testified that any medicines Diaz was
taking related to his prior motorcycle accident did not adversely affect his ability to
communicate with his attorney or make decisions. R7 at 31-32, 37-38. Diaz further
acknowledged that he was pleading guilty of his own free will because he was in
fact guilty. Id. at 38. Prior to sentencing, however, Diaz moved to withdraw his
plea, stating that he was coerced into pleading guilty, he was mentally ill, and he
was innocent by reason of insanity. R1-70. Based on the agreement of the parties,
the court permitted Diaz to withdraw his plea and set the case for trial. R1-82.
Diaz then filed notice of his intent to assert an insanity defense, which
resulted in a second court-ordered mental evaluation and multiple postponements of
trial. R1-88, 90. The second evaluation confirmed that Diaz was malingering and
had no serious mental defect. R11at 3. Additionally, an examination by Diaz’s
own expert concluded that Diaz was not insane at the time of the offense, that he
understood the nature and quality of his criminal behavior, and that his crimes were
not a result of a mental defect. R1-94 at 2. Based on that report, Diaz’s attorney
conceded that “at the time of the incident [Diaz] was competent and knew what he
was doing.” R11 at 4. Trial finally commenced in January 2009.
At his sentencing hearing, the government argued that Diaz had obstructed
22
justice by feigning mental illness and by committing perjury at trial concerning his
alleged mental impairments. R14 at 19-20. Christopher Whitley, Special Agent
with the Drug Enforcement Administration, testified over objection that DeBernard
told him that several months after Diaz’s arrest, Diaz informed DeBernard that
“there was no way to get out of this other than to tell them that he had a mental
illness.” Id. at 17. After hearing arguments by both parties, the district court
concluded that an enhancement was warranted. Id. at 24. The court explained its
decision as follows:
Okay. I’m persuaded by the Government’s argument and will
enhance by two levels. I rarely have enhanced for obstruction when a
defendant goes to trial and testifies because I don’t want to be in the
position of punishing a defendant for exercising his constitutional right
to go to trial. The only times really I do that is when they manufacture
evidence, get somebody else to lie for them, come up with – make up
documentation, that sort of thing that goes beyond just testifying.
In this case I think the defendant did go beyond that. First, he –
according to the reports, the two doctors or the doctors at the FDC did
determine that he was malingering. They gave him the test. It is very
apparent as you read those reports that he basically was trying to
present himself as being mentally ill and hurt in this motor vehicle
accident. When found to be competent, he changed his plea. I went
through the plea colloquy. He was fine. I frankly would not have
allowed him to withdraw that plea but for the position that the
Government took. The Government agreed to set aside the plea for
him to go to trial. I thought he was competent at the time, wouldn’t
have let him do that, but I acceded to the parties[’] advice on that. He
went to trial. I should say he also wrote a letter to me which going
through the file – where he talks about how he said he was mentally ill,
that his lawyer was involved with a conspiracy with – his previous
23
lawyer was involved with a conspiracy with the prosecution, all this
about his accident and how he doesn’t have his memory. And he was
then examined in terms of his insanity defense, found not to qualify for
that both by the Government’s lawyer and the defense lawyer, and then
his testimony at trial about – that is set forth in the Government’s
memorandum on Page 5 where he talked about the voices and all of
that was just plainly unbelievable and was clearly for the purpose of
trying to convince the jury that he had mental problems that he really
didn’t have. And so for those reasons I think this case does require an
enhancement for obstruction.
Id. at 24-25.
With respect to Diaz’s constitutional challenges to the enhancement, our
review is limited to plain error because Diaz did not raise a Sixth or Fifth
Amendment violation in the district court. See United States v. Zinn, 321 F.3d
1084, 1088 (11th Cir. 2003) (explaining that a defendant must “clearly articulate a
specific objection during sentencing” in order to preserve the objection for appeal).
No error, plain or otherwise, has been shown. In Blakely, the Supreme Court
applied the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.
Ct. 2348, 2362-63 (2000): “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at
301, 124 S. Ct. at 2536. The Court held in Blakely that the petitioner’s Sixth
Amendment right to a jury trial was violated when the court imposed a sentence
beyond the statutory maximum based on a judicial determination that the petitioner
24
acted with “deliberate cruelty,” a finding that was neither admitted to by the
petitioner nor found by a jury. Id. at 303-05, 124 S. Ct. at 2537-38. Blakely is
inapposite here, however, because Diaz was not sentenced beyond the statutory
maximum that applied based on the jury’s verdict. As our precedent establishes,
“an Apprendi constitutional error occurs only where a defendant is sentenced
beyond the statutory maximum for the offense.” Underwood, 446 F.3d at 1345.
Consequently, where a defendant’s sentence falls below the statutory maximum
term of life imprisonment for a conviction under 21 U.S.C. § 841(b)(1)(A), there
can be no Apprendi error. See id. Here, the jury convicted Diaz of violating
§ 841(b)(1)(A) in counts one and two, and the court sentenced him to concurrent
terms of 160 months of imprisonment. As Diaz’s sentence was below the statutory
maximum, he cannot establish that the district court committed plain error. See id.
Furthermore, in accordance with the Supreme Court, we have recognized that
“the use of extra-verdict enhancements in an advisory guidelines system is not
unconstitutional.” United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)
(per curiam) (quotation marks and citation omitted). Consequently, the district
court did not plainly err in applying the obstruction of justice enhancement.
As for Diaz’s second argument, that there was insufficient evidence to
support the enhancement, we review the district court’s factual findings for clear
25
error and the application of the sentencing guidelines de novo. United States v.
Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004) (per curiam). U.S.S.G. § 3C1.1
permits a two-level enhancement to a defendant’s offense level if “the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction,” and “the obstructive conduct
related to the defendant’s offense of conviction and any relevant conduct.”
U.S.S.G. § 3C1.1 (2009).
We have previously upheld the application of a § 3C1.1 enhancement where
a defendant feigned amnesia and his malingering postponed his trial for a year,
forcing the government to waste time and resources to evaluate his competency.
See United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003). We noted that
“feigning incompetency, whether to create doubt as to his competency so as to prod
his attorney into requesting competency hearings or to convince the court that he
cannot stand trial, will trigger a § 3C1.1 enhancement.” Id. (quotation marks and
citation omitted). Additionally, an enhancement is justified if a defendant commits,
suborns, or attempts to suborn perjury. U.S.S.G. § 3C1.1, comment (n.4(b)).
Perjury, for purposes of § 3C1.1, means willfully giving false testimony under oath
“that, if believed, would tend to influence or affect the issue under determination.”
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United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quotation marks and
citation omitted).
The district court did not clearly err in finding that Diaz obstructed or
impeded justice by feigning a mental illness. At various stages throughout the
proceedings, Diaz represented that he suffered from a mental infirmity. Diaz’s
representations resulted in two court-ordered psychiatric evaluations, both of which
concurred that Diaz was malingering. Even Diaz’s own expert agreed that Diaz
understood the criminal nature of his actions and that his crimes did not result from
any mental defect. As in Patti, Diaz’s malingering wasted government resources
and needlessly delayed the prosecution of his case for over a year. The district
court correctly applied the obstruction of justice enhancement on this basis.4 See
Patti, 337 F.3d at 1325.
Moreover, the enhancement was also justified based on the district court’s
finding that Diaz purposefully gave false testimony at trial regarding his mental
health. At trial, Diaz testified that “[w]hen there are three or more voices, I can’t
4
Diaz contends that the district court erroneously relied on the hearsay testimony of
Agent Whitley that Diaz told DeBernard he would pretend to be mentally ill. A district court
may rely upon hearsay evidence at sentencing if: (1) it is reliable, (2) the court makes explicit
findings of fact as to credibility, and (3) the defendant is allowed to rebut the evidence. See
Patti, 337 F.3d at 1326. While the sentencing transcript does not indicate that the court explicitly
found Agent Whitley to be credible, the district court did not expressly rely on Agent Whitley’s
testimony as a basis for applying the enhancement. Given that sufficient additional evidence
supports the district court’s stated reasons for the enhancement, we need not determine whether
an error occurred.
27
understand what they’re saying.” R11 at 243. Diaz further stated his brain shuts
down, the voices become whispers, he feels dizzy, and he cannot fully understand
anything because he has not really heard it. Id. at 243, 252. The district court had
the opportunity to view and hear Diaz but found this testimony “plainly
unbelievable.” R14 at 25. This credibility finding is entitled to due deference. See
Singh, 291 F.3d at 763-64. Moreover, Diaz’s testimony stands in stark contrast to
Zapada’s testimony that Diaz actively participated in conversations involving three
or more people. Diaz’s testimony also directly contradicts the medical reports that
he has no mental defect or inability to comprehend the nature of his actions.
Indeed, based upon the report by Diaz’s expert, Diaz’s counsel acknowledged that
“it would be disingenuous for me to put Dr. Toomer on the stand and go forward
with him to try and illicit testimony from him that my client, you know, is either not
competent now or did not know what he was doing at the time of the offense.” R11
at 5. The record thus supports the district court’s determination that Diaz’s
testimony was “clearly for the purpose of trying to convince the jury that he had
mental problems that he really didn’t have.” R14 at 25. Accordingly, we affirm the
district court’s application of the obstruction of justice enhancement.
5. Substantive Reasonableness of the Sentence
In addition to the putative procedural errors discussed above, Diaz also
28
challenges the substantive reasonableness of his sentence. He contends that his
mental health, lack of prior convictions, and his minor role in the crimes constituted
extraordinary mitigating circumstances which warranted a variance below the
sentencing guidelines range. Consequently, he submits that the district court
imposed a sentence that was greater than necessary to comply with the purposes of
18 U.S.C. § 3553(a).
We disagree. As previously noted, we review the substantive reasonableness
of a sentence for an abuse of discretion. See Pugh, 515 F.3d at 1190. Even if we
reasonably conclude that a different sentence is appropriate, we may not reverse
unless we possess a “definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors.” Id. at 1191. No clear
error of judgment exists here. The district court stated that it based its sentence
upon consideration of the parties’ statements, the pre-sentence report, the criminal
history category, the advisory guidelines range of 151 to 188 months, all the
§ 3553(a) factors, including the seriousness of the crime, and the consecutive nature
of the sentence on count three. R14 at 29-30. Diaz’s sentence of 160 months of
imprisonment on counts one and two falls within the guidelines range and is
therefore subject to a presumption of reasonableness. See Pugh, 515 F.3d at 1190.
Though he suggests that certain mitigating factors should have received greater
29
weight than the court accorded them, we “will not substitute our judgment in
weighing the relevant factors.” Amedeo, 487 F.3d at 832 (quotation marks and
citation omitted). The district court fashioned a reasonable sentence that comported
with the sentencing purposes of § 3553(a). No abuse of discretion has been shown.
III. CONCLUSION
Diaz challenges his convictions and sentences on direct appeal. We conclude
that there was sufficient evidence to support each conviction, that the district court’s
challenged evidentiary rulings were not individually or cumulatively erroneous, and
that Diaz’s sentence is both procedurally and substantively reasonable.
Accordingly, we AFFIRM his convictions and sentences.
AFFIRMED.
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