United States v. Diaz

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-12-2003
USA v. Diaz
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2939
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Diaz" (2003). 2003 Decisions. Paper 118.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/118
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2939
UNITED STATES OF AMERICA
v.
ADAM DIAZ,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 99-cr-00404-8
District Judge: Honorable Clarence C. Newcomer
Submitted Under Third Circuit LAR 34.1(a)
October 15, 2003
Before: SLOVITER, ROTH AND CHERTOFF, Circuit Judges
(Filed: November 12, 2003)
OPINION
CHERTOFF, Circuit Judge
1
On April 6, 2000, appellant Adam Diaz pled guilty to three counts of offenses
relating to a drug conspiracy. Before sentencing, Diaz fled and jumped bail. After being
apprehended, Diaz was sentenced to 135 months for conspiracy to distribute a controlled
substance, 48 months for each of two counts of use of a telephone to facilitate a drug
felony, and 120 months for his failure to appear, all terms to run concurrently.
In this appeal, Diaz raises an ineffective assistance of counsel claim and also
argues that the District Court erred in determining his sentence. Diaz objects to his 120
month sentence for bail jumping, which he contends is substantially in excess of the term
which the Sentencing Guidelines would apply.
For the reasons stated in this opinion, we will affirm the judgment of the District
Court.
I.
From the end of 1998 through the summer of 1999, Diaz was a New York drug
dealer who supplied drugs on a wholesale basis to Jose Fernandez, a leader and organizer
of a drug distribution organization that trafficked in heroin, cocaine, and crack in the
Philadelphia area. In July of 1999, a grand jury in the Eastern District of Pennsylvania
filed a 46-count indictment charging Diaz, Fernandez, and seven other individuals with
drug trafficking and other associated crimes. Diaz pled guilty to conspiracy to distribute
heroin, in violation of 21 U.S.C. § 846, and two counts of use of a telephone to facilitate
drug trafficking, in violation of 21 U.S.C. § 843(b). He was released on bond on
2
October 7, 1999, but on the date of his sentencing, he fled. He was arrested on
November 11, 2001.
Before sentencing, the Government, based on Diaz’s cooperation, filed a motion
permitting the District Court to depart from the otherwise applicable statutory mandatory
minimum sentence and from the Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)
range, pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. After Diaz failed to
appear for sentencing, the Government filed a one-count information charging him with
bail jumping, in violation of 18 U.S.C. § 3146(a)(1). The Government also withdrew its
prior departure motions.
The District Court imposed a sentence of 135 months for conspiracy to distribute
heroin, 48 months on each count of use of a telephone to facilitate drug trafficking, to
run concurrently, and five years supervised release, a $5,000 fine, and a $300 special
assessment. For failing to appear for sentencing, Diaz was sentenced to 120 months and
five years supervised release, both terms to run concurrently with the terms imposed for
the drug convictions. A $5,000 fine and $100 special assessment were also levied
against him on the bail jumping charge.
II.
Diaz argues that his former counsel was ineffective because his attorney (1) failed
to challenge the weight of the narcotics used to compute his base offense level; (2) failed
to move the District Court for departure based on extraordinary family circumstances; (3)
3
failed to challenge the good faith basis of the Government’s withdrawal of its U.S.S.G. §
5K1.1 motion; and (4) failed to move the District Court for departure based on his
voluntary disclosure of offense conduct pursuant to U.S.S.G. § 5K2.16.
Because they are often highly fact-bound, claims of ineffective assistance of
counsel are generally not considered on direct appeal. United States v. Haywood, 155
F.3d 674, 678 (3d Cir. 1998); see also Massaro v. United States, 123 S.Ct. 1690, 1694
(2003). Instead, “the proper avenue for pursuing such claims is through a collateral
proceeding in which the factual basis for the claim may be developed.” Haywood, 155
F.3d at 678 (quoting United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.
1989)). The preferable course is for defendants to raise their claims of ineffectiveness in
a motion pursuant to 28 U.S.C. § 2255 before the district court. Massaro, 123 S.Ct. at
1694; see United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002) (citing cases).
This Court has recognized a “narrow exception” to this rule, allowing a
determination of ineffective assistance of counsel where the record is sufficient and an
evidentiary hearing to develop the facts is not needed. United States v. Headley, 923
F.2d 1079, 1083 (3d Cir. 1991). Here, the record is insufficient to determine whether or
not Diaz’s attorney provided ineffective counsel. In fact, the record from the plea
colloquy indicates that Diaz expressly admitted being satisfied with his lawyer’s
representation and advice.
We will deny Diaz’s claim without prejudice to his right to raise the issue
4
collaterally, pursuant to 28 U.S.C. § 2255, so that he may fully develop the record.
III.
Diaz objects to being sentenced to a 120 month sentence for bail jumping, which
he contends is substantially in excess of the Guidelines term that would apply had that
offense been sentenced separately from his drug offenses. He argues that he should not
have been sentenced to a term greater than the 21 months for the bail jumping offense.
Diaz points to U.S.S.G. § 2J1.6(a)(2) and (b)(2)(A), which covers failure to appear, and
argues these sections would set his offense level at Level 13, with a prison term range of
15 to 21 months.
Diaz did not object to the sentence before the District Court, and, therefore,
review is for plain error. See United States v. Couch, 291 F.3d 251, 252-53 (3d Cir.
2002). The defendant has the burden of establishing plain error. United States v. Olano,
507 U.S. 725, 734 (1993). Under this standard, this Court must find that (1) an error was
committed, (2) the error was plain, i.e., clear or obvious, and (3) the error affected the
defendant's substantial rights. See United States v. Knight, 266 F.3d 203, 206 (3d Cir.
2001); see also United States v. Nappi, 243 F.3d 758, 762, 764 (3d Cir. 2001) (“In
addition, even where plain error exists, our discretionary authority to order correction is
to be guided by whether the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.”). Under the third prong, the Supreme Court has
stated that “in most cases it means that the error must have been prejudicial: It must have
5
affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734.
Under the Guidelines:
[I]n the case of a conviction on both the underlying offense and the failure
to appear, other than a case of failure to appear for service of sentence, the
failure to appear is treated under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) as an obstruction of the underlying offense, and
the failure to appear count and the count or counts for the underlying
offense are grouped together under § 3D1.2(c).
U.S.S.G. § 2J1.6, comment (n.3). Thus, when a defendant is convicted of both the
failure to appear and the underlying offense, the failure to appear is treated as an
obstruction of the underlying offense under U.S.S.G. § 3C1.1. Id. Here, the District
Court correctly applied §§ 3C1.1 and 3D1.2(c) in grouping Diaz’s underlying offenses
with his failure to appear for sentencing and enhancing his total offense level by two
levels.
Section 5G1.2(b) of the Guidelines provides that the district court will impose the
“total punishment” as determined by the grouping provisions of the Guidelines and that
“the sentence imposed on each other count shall be the total punishment . . .”. Section
5G1.2(c) continues, “[i]f the sentence imposed on the count carrying the highest statutory
maximum is adequate to achieve the total punishment, then the sentences on all counts
shall run concurrently, except to the extent otherwise required by law.” U.S.S.G. §
5G1.2(c) (emphasis added).
Based on Diaz’s total offense level of 32 and his Level II criminal history
category, the Guidelines state that his sentence range should be between 135 to 168
6
months. The District Court imposed a sentence of 135 months on Count One of the drug
conspiracy indictment, the charge carrying the highest statutory penalty. Therefore,
using the § 5G1.2 analysis, the District Court determined that the terms for the remaining
telephone offenses would run concurrently with the 135 month term on Count One. The
District Court then simply imposed the maximum term as a concurrent sentence on the
bail jumping count.
Diaz’s total sentence is correct under the Guidelines. The District Court did
commit error in constructing the actual sentence imposed, but not the error of which Diaz
complains. Diaz was sentenced to a 120 month concurrent term for his failure to appear.
However, 18 U.S.C. § 3146(b)(2) of the United States Code, which details the penalty
for a failure to appear, provides that if a sentence is imposed for failing to appear, that
sentence must run consecutively to the sentence for any underlying offense.
When a particular statutory penalty mandates consecutive imprisonment, the
actual imposition of a multiple count sentence within the proper Guideline range must
take account of that statutory mandate. See U.S.S.G. § 2J1.6, comment (n.3) (“Note that
18 U.S.C. § 3146(b)(2) does not require a sentence of imprisonment on a failure to
appear count, although if a sentence of imprisonment on the failure to appear count is
imposed, the statute requires that the sentence be imposed to run consecutively to any
other sentence of imprisonment.”)
Thus, because 18 U.S.C. § 3146(b)(2) requires that any sentence imposed for
7
failure to appear be imposed consecutively to any other sentence, a district court must
separate and make consecutive that portion of the total Guidelines-mandated sentence
that corresponds to the failure to appear. Comment 3 to § 2J1.6 suggests, “[f]or example,
if the court determines a ‘total punishment’ of 36 months is appropriate, a sentence of 30
months for the underlying offense plus a consecutive six months sentence for the failure
to appear count would satisfy these requirements.” See United States v. Pardo, 25 F.3d
1187, 1194 (3d Cir. 1994).
Using this model, the District Court could have properly achieved the result
obtained here by providing that Diaz’s “total punishment” was 135 months, allotting 120
months for the underlying drug offense (which would be the statutory minimum of 10
years for that offense) and 15 months for the failure to appear.
Because the District Court issued the 120 month sentence to run concurrently with
the 135 month sentence, the 120 month term for failure to appear has no effect on Diaz’s
overall sentence. The Government is the party “aggrieved” by the District Court’s
technical failure to impose a consecutive sentence for failure to appear, but it has not
challenged the judgment allowing Diaz’s sentence to run concurrently. Otherwise, the
District Court’s sentencing mistake amounts to harmless error.
We have considered all of the arguments advanced by the parties and conclude
that no further discussion is necessary. Accordingly, the judgment of the District Court
will be affirmed.
8
TO THE CLERK:
Please file the foregoing opinion.
/s/ Michael Chertoff, Circuit Judge
Circuit Judge
9