United States v. Nelson Diaz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3291
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UNITED STATES OF AMERICA
v.
NELSON LUIS DIAZ,
Appellant
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-07-cr-00147-001)
District Judge: Honorable John E. Jones, III
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Submitted Under Third Circuit LAR 34.1(a)
June 18, 2012
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Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 6, 2012 )
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OPINION
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AMBRO, Circuit Judge
Nelson Luis Diaz was convicted of one count of possession of heroin with intent
to distribute, 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). The District
Court sentenced him to 480 months’ imprisonment, but Diaz twice appealed his sentence,
successfully reducing it to 397 months. He nonetheless appeals. His attorney, however,
moves to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that all potential grounds for appeal are frivolous. Diaz has not filed a pro se
brief in response. We grant the motion and affirm Diaz’s sentence.
I. Background
Because we write solely for the parties, we recite only those facts necessary to our
decision. In March 2006, Diaz was physically assaulted by Albert Pierce, a rival drug
dealer. Soon thereafter, Diaz and several individuals confronted Pierce. During the
ensuing altercation, several gunshots were fired, including by Diaz, and Pierce was
fatally wounded. Who fired the fatal shot is unknown. In connection with that incident,
Diaz was arrested and charged with one count of possession of heroin with intent to
distribute, 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). PSR at 1–2.
In January 2008, he was convicted on all counts. The District Court, as noted, sentenced
Diaz to 480 months’ imprisonment, allotting 240 months for the drug count and 240
months for the two firearm counts (120 months each, to be served consecutively). Diaz
appealed his convictions and sentence to this Court. We affirmed the convictions for the
drug offense and one firearm offense, vacated the second firearm count pursuant to the
Fifth Amendment’s Double Jeopardy Clause, and remanded for resentencing. United
States v. Diaz, 592 F.3d 467, 474–75 (3d Cir. 2010).
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On remand, the District Court held a de novo sentencing proceeding and
resentenced Diaz to 400 months’ imprisonment, maintaining the 240-month sentence for
the drug count and increasing the sentence for the remaining firearm count to 160
months. Diaz again appealed, arguing that our Court had directed the District Court
simply to subtract the 120-month sentence for the vacated firearm count, which would
result in a total sentence of 360 months. Diaz also urged us to remand for resentencing
under Pepper v. United States, 131 S. Ct. 1229, 1241–43 (2011) (holding that at
resentencing a district court can consider postsentencing rehabilitation relevant to the
factors in 18 U.S.C. § 3553(a)). We upheld the District Court’s exercise of de novo
resentencing, but nonetheless remanded for resentencing pursuant to Pepper. United
States v. Diaz, 639 F.3d 616, 619, 622–623 (3d Cir. 2011).
On remand after his second appeal, the District Court resentenced Diaz to 397
months’ imprisonment. It took into account Diaz’s postsentencing behavior, noting both
his positive behavior (i.e., his documented enrollment in a GED program, his lack of
violence and drug use, and the harsh conditions of the prison in Dauphin County,
Pennsylvania), and his bad behavior (including his infractions while in prison, e.g.,
possession of marijuana). The Court reasoned that, notwithstanding Diaz’s success in
vacating one firearm count and his positive postsentence behavior, a sentence any lower
than 397 months would not properly account for the seriousness of the underlying crime.
Indeed, this sentence was at the lower end of the Sentencing Guidelines range of 360
months to life imprisonment (which was the same range applicable at his first
sentencing).
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II. Discussion
Our rules provide that “[w]here, upon review of the district court record, counsel
is persuaded that the appeal presents no issue of even arguable merit, counsel may file a
motion to withdraw and supporting brief pursuant to Anders v. California . . . .” 3d Cir.
L.A.R. 109.2(a). If we concur with trial counsel’s assessment, we “will grant [the]
Anders motion, and dispose of the appeal without appointing new counsel.” Id.Accordingly, our inquiry “is . . . twofold: (1) whether counsel adequately fulfilled the
rule’s requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
In his Anders brief, Diaz’s attorney noted that the only ground for appeal is the
reasonableness of Diaz’s sentence. Our review of the record confirms counsel’s
assessment that there are no nonfrivolous issues for appeal.
District courts must follow a three-step process in imposing a sentence: (1)
calculate the applicable Guidelines range; (2) formally rule on any departure motions and
explain their rulings on such motions; and (3) exercise discretion in applying at
sentencing any relevant factors set forth in § 3553(a). United States v. Gunter, 462 F.3d
237, 247 (3d Cir. 2006). As Diaz’s attorney explains in his Anders brief, the District
Court precisely followed this process. It correctly calculated the applicable Guidelines
range, to which Diaz did not object. Neither party filed a departure motion. Moreover,
the Court properly applied the § 3553(a) factors at sentencing. Among other things, it
considered: (1) the facts of Diaz’s criminal conviction; (2) his postsentencing behavior
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and the prison conditions; (3) his criminal history and upbringing; and (4) both parties’
detailed sentencing memoranda. The Court disagreed that a sentence of 360 months (the
minimum length of the Guidelines range) would adequately deter Diaz given the
seriousness of his offenses. Because the Court followed proper sentencing procedures
and sentenced Diaz to a term of imprisonment on the lower end of the Guidelines range,
we cannot say that Diaz’s sentence is either procedurally or substantively unreasonable.
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Diaz’s counsel adequately fulfilled the requirements of Anders. Because our
independent review of the record fails to reveal any nonfrivolous grounds for direct
appeal, we grant counsel’s motion to withdraw and affirm Diaz’s sentence.
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