United States v. Diaz

Case: 19-11112 Document: 00515761428 Page: 1 Date Filed: 03/01/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11112 March 1, 2021
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Sylvia Diaz,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:18-CR-293-2
Before Higginbotham, Smith, and Dennis, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Sylvia Diaz (“Diaz”) pleaded guilty of conspiring to acquire a firearm
from a licensed firearms dealer by false or fictitious statement. She asserts
that her guilty plea was not knowing and voluntary, that she was vindictively
or selectively prosecuted, and that her trial counsel was constitutionally
ineffective. We affirm the conviction and dismiss without prejudice the claim
of ineffective assistance of counsel (“IAC”).
I.
Diaz and her husband, Jose Diaz (“Jose”), served as illegal straw-
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purchasers in a weapons-trafficking arrangement. They purchased firearms
from commercial gun sellers and delivered them to a third party, Jorge, who
would then traffic the weapons into Mexico. Agents working for the Federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) caught on
to the scheme and approached the Diazes. Jose admitted that they were
involved in the straw-purchaser arrangement but clarified that they were not
personally trafficking weapons into Mexico. ATF agents informed the
Diazes that what they were doing was illegal and produced a cease-and-desist
letter, which the Diazes signed.
ATF agents also sought Jose’s cooperation for their investigation into
Jorge. Although Jose expressed fear for his family’s safety, he initially agreed
to cooperate. He provided the agents with Jorge’s telephone number and
informed them of an upcoming meeting the Diazes had scheduled with Jorge,
at which the Diazes were to deliver more firearms to him. Jose then agreed
to meet with the agents two days later to discuss the investigation further.
But before that meeting took place, the Diaz family fled to Mexico. A few
months later, the federal government issued an arrest warrant for Diaz. She
was arrested roughly eight months after that, in February 2019, when she
tried to re-enter the United States.
Diaz was indicted for conspiring to acquire a firearm from a licensed
firearms dealer by false or fictitious statement, in violation of 18 U.S.C.
§§ 371 and 922(a)(6). She pleaded guilty, and the district court sentenced
her to 58 months’ imprisonment. As a part of her plea agreement, she waived
her right to appeal most issues. The waiver expressly reserved the right to
appeal on three specific grounds: (1) if her sentence exceeded the statutory
maximum punishment or was the result of an arithmetic error; (2) to chal-
lenge the voluntariness of the guilty plea or the waiver of appeal; and (3) to
bring a claim of IAC.
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II.
Diaz contends that “[a] defendant cannot ‘knowingly violate’
§ 922(a)(6)”—as required by 18 U.S.C. § 924(a)(2)—“without having the
intention to knowingly make a false statement to a seller whom the defendant
actually knows is a federally-‘licensed dealer.’” Thus, because the district
court did not inform her expressly that the government would have to prove
that she knew she lied to a seller whom she knew to be a licensed dealer, it is
Diaz’s position that her guilty plea was not knowing and voluntary.
Because Diaz raises that objection for the first time on appeal, we
review only for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002).
Plain error exists “when: (1) there was an error; (2) the error was clear and
obvious; and (3) the error affected the defendant’s substantial rights.”
United States v. Garcia-Rodriguez, 415 F.3d 452, 454 (5th Cir. 2005). Even
then, the court may exercise its “discretion to notice a forfeited error . . . only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quotation omitted). And “if a defendant’s theory
requires the extension of precedent, any potential error could not have been
plain.” Id. at 455 (quotation omitted).
A.
A guilty plea “must be voluntary, knowing, and intelligent.” United
States v. Lord, 915 F.3d 1009, 1016 (5th Cir.), cert. denied, 140 S. Ct. 320(2019). “[T]he defendant must be instructed in open court on the nature of
the charge to which the plea is offered . . . .” United States v. Broce, 488 U.S.
563, 570 (1989) (quotation omitted). A guilty plea “cannot be truly voluntary
unless the defendant possesses an understanding of the law in relation to the
facts . . . .” Id. (quotation omitted).
Section 924 provides the penalty for those who commit any one of the
unlawful acts described in § 922. As relevant here, § 922(a)(6) makes it
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unlawful “for any person in connection with the acquisition or attempted
acquisition of any firearm or ammunition from a . . . licensed dealer . . .
knowingly to make any false or fictitious oral or written statement” that is
“intended or likely to deceive such . . . dealer . . . with respect to any fact
material to the lawfulness of the sale . . . .” Section 924(a)(2), in turn, pun-
ishes “[w]hoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j),
or (o) of section 922 . . . .” (Emphasis added.)
1.
Before we reach the requirements to convict under § 922(a)(6), we
make a brief detour into § 922(g)—another subsection to which § 924(a)(2)
applies. Section 922(g) criminalizes possession of a firearm by certain cate-
gories of persons, such as illegal aliens. § 922(g)(5)(A). In Rehaif v. United
States, 139 S. Ct. 2191, 2200 (2019), the Court held “that in a prosecution
under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both
that the defendant knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a firearm.”
The Court reasoned that the scienter requirement in § 924(a)(2)
meant that the government must prove that the defendant “knew he violated
the material elements of § 922(g),” id. at 2196, among which is “the defen-
dant’s status” as “belong[ing] to the relevant category of persons barred
from possessing a firearm,” id. at 2196–97, 2200. Thus, the Court reversed
the conviction because the government was required to prove not only that
Rehaif knew he possessed a firearm, but also that he knew he was “an alien
illegally or unlawfully in the United States . . . .” Id. at 2198 (quotation
omitted).
2.
Diaz seeks to extend Rehaif’s reasoning to § 922(a)(6). According to
her, to convict for conspiracy to violate § 922(a)(6), the government must
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prove not only that she knowingly made a false statement but also that she
made such statement to a seller she knew to be a licensed dealer. But Rehaif
does not compel that conclusion. As an initial matter, Rehaif expressly cab-
ined its holding, even limiting its application in relation to other portions
within subsection (g). The Court “express[ed] no view . . . about what pre-
cisely the Government must prove to establish a defendant’s knowledge of
status in respect to other § 922(g) provisions not at issue” in that case. Id.
at 2200. Neither did it express a view about what the government must prove
to establish the defendant’s knowledge for subsection (a)(6).
More fundamentally, Rehaif dealt with “a prosecution under
18 U.S.C. § 922(g) and § 924(a)(2) . . . .” Id. Diaz fails to recognize that her
prosecution is under §§ 371 and 922(a)(6). The scienter requirement that
the court imputed onto § 922(g), which Diaz seeks to apply to § 922(a)(6),
comes from a third statute—§ 924(a)(2)—that is altogether not at issue.
Thus, even if Rehaif compels the inclusion of the scienter requirement for
which Diaz advocates for prosecutions under §§ 922(a)(6) and 924(a)(2),
that is not the crime of which she pleaded guilty. And § 371 does not contain
the “knowingly” requirement included in § 924(a)(2).
In any event, even after Rehaif, and even for prosecutions under
§§ 922(a)(6) and 924(a)(2), we have continued to adhere to our long-held
view of what the government must prove under § 922(a)(6).1 Indeed, we
recently described the elements of § 922(a)(6) as follows: “that the defen-
dant knowingly made false statements and that such statements were in-
tended to deceive or likely to deceive a federally licensed firearms dealer with
respect to any fact material to the lawfulness of the sale.” Fields, 977 F.3d
1See United States v. Fields, 977 F.3d 358, 362–63 (5th Cir. 2020) (stating what “the
government must show” to convict under § 922(a)(6) and proceeding to quote the ele-
ments as provided in a 1985 case).
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at 363 (cleaned up). Nowhere did we mention a scienter requirement as it
pertained to the status of the dealer.
As one might expect, that characterization tracks closely with the
Fifth Circuit Pattern Jury Instructions for prosecutions under § 922(a)(6),
which the district court followed nearly to the letter:
First: That the defendant made a false [fictitious] oral [written]
statement; Second: That the defendant knew the statement was
false; Third: That the statement was made in connection with
the acquisition of a firearm [ammunition] from a licensed fire-
arm [ammunitions] dealer; Fourth: That the statement was
intended or was likely to deceive a licensed firearm [ammuni-
tions] dealer; and Fifth: That the alleged false statement was
material to the lawfulness of the sale or disposition of the fire-
arm [ammunition].
Pattern Jury Instructions: Fifth Circuit, Criminal
Cases § 2.43B (2019) (brackets in original).
Thus, neither Fifth Circuit precedent nor the Pattern Jury Instruc-
tions include the knowledge requirement that Diaz seeks to impose. More-
over, supposing, for argument’s sake, that Rehaif imposed a heightened sci-
enter requirement for prosecutions under §§ 924(a)(2) and 922(a)(6)—a
supposition that we at least implicitly rejected in Fields—that has no bearing
on prosecutions under §§ 371 and 922(a)(6). And even if it did, to hold that
would require an extension of precedent. See Fields, 977 F.3d at 363. The
district court, therefore, did not plainly err when it instructed Diaz as to the
elements of § 922(a)(6). See Garcia-Rodriguez, 415 F.3d at 455.2
2
Even under de novo review, and even if we took at face value Diaz’s characteri-
zation of her prosecution as invoking § 924(a)(2), her contention still would fail. The
“licensed dealer” requirement in § 922(a)(6) is a jurisdictional element. And “[b]ecause
jurisdictional elements normally have nothing to do with the wrongfulness of the defen-
dant’s conduct, such elements are not subject to the presumption in favor of scienter.”
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III.
Diaz claims selective or vindictive prosecution, averring that the gov-
ernment prosecuted her in retaliation only after she and her husband had
refused to cooperate in the ATF investigation. That claim is further bol-
stered by the fact that, as Diaz puts it, “the Government virtually never, if
ever, prosecutes people who abide by . . . cease and desist letters.”
A.
As an initial matter, we must determine whether Diaz forfeited her
right to raise this issue on appeal. Diaz attempts to circumvent the appeal
waiver by reframing her claims. In her view, because she “should not have
been prosecuted at all due to prosecutorial vindictiveness or selective prose-
cution, then any sentence [she] received would exceed the statutory maxi-
mum.”3 That theory is flawed.
We “determine whether the waiver applies to the circumstances at
hand[] based on the plain language of the plea agreement.” United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005). And we construe the “lan-
guage in the appellate waiver . . . in accord with the intent of the parties at the
time the plea agreement was executed.” United States v. Cortez, 413 F.3d
502, 503 (5th Cir. 2005) (per curiam). “In the absence of evidence that the
parties to the agreement intended . . . a specialized, non-natural definition,
we apply the term’s usual and ordinary meaning . . . .” United States v. Bond,
414 F.3d 542, 545 (5th Cir. 2005). The “natural and ordinary meaning” of
Rehaif, 139 S. Ct. at 2196.
3
Additionally, Diaz asserts that her appeal waiver was not knowing and voluntary
for the same reason that her guilty plea was involuntary, because the district court did not
extend Rehaif to require knowledge as to the status of the federally-licensed dealer. Because
§ 922(a)(6) does not require the government to prove such knowledge, that notion has no
merit for the same reasons provided above.
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“the statutory maximum” is “the upper limit of punishment that Congress
has legislatively specified for violations of a statute.” Cortez, 413 F.3d at 503(quotation omitted).
Diaz pleaded guilty of conspiring to acquire a firearm from a licensed
firearms dealer by false or fictitious statement in violation of § 371 and
reserved her right to appeal that conviction if her sentence exceeded the stat-
utory maximum. She concedes that “the upper limit of punishment” for
offenses under § 371 is 60 months. See id. (quotation omitted). And she pro-
vides “no indication that the parties intended that the exception in the
appellate waiver for a sentence exceeding the statutory maximum punish-
ment would have a meaning other than its ordinary and natural meaning.”
Id. (quotation omitted).
Thus, “based on the plain language of the plea agreement,” McKin-
ney, 406 F.3d at 746, only if the district court sentenced Diaz to more than
60 months would the exception to the appellate waiver apply. Because she
was sentenced to only 58 months, the exception is inapplicable.
IV.
Diaz claims that her trial counsel was constitutionally ineffective.
Because, as Diaz describes it, individuals who receive and abide by ATF
cease-and-desist letters are rarely, if ever, prosecuted, she asserts that coun-
sel’s failure to investigate and mount a vindictive- or selective-prosecution
defense on those grounds constituted deficient performance. And, according
to her, the deficiency prejudiced her because she otherwise would not have
pleaded guilty.4
4
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating that a defendant
must show both deficiency and prejudice to state a claim for IAC).
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Although this appeal waiver specifically excepts the right to bring an
IAC claim, the general rule is that IAC claims “should not be litigated on
direct appeal, unless they were previously presented to the trial court. It is
only in rare cases in which the record allows a reviewing court to fairly eval-
uate the merits of the claim that we will consider” it. United States v. Isgar,
739 F.3d 829, 841 (5th Cir. 2014) (cleaned up). Diaz submits that hers is one
of those “rare cases.” We disagree.
“[T]he exception to our general rule of non-review is typically satis-
fied only where the actual claim was raised and developed in a post-trial
motion to the district court.”5 In some circumstances, even if no hearing or
post-trial motion was held, the record may “provide sufficient detail about
trial counsel’s conduct and motivations to allow this court to make a fair
evaluation of the merits of the defendant’s claim.” United States v. Gulley,
526 F.3d 809, 821 (5th Cir. 2008) (per curiam) (cleaned up).
Diaz does not assert that the IAC claim “was raised and developed in
a post-trial motion to the district court.” Stevens, 478 F.3d at 245. Nor does
she contend that the record provides any “detail about trial counsel’s con-
duct and motivations . . . .” United States v. Aguilar, 503 F.3d 431, 436 (5th
Cir. 2007) (per curiam).
Instead, Diaz relies on the following: Although the presentence inves-
tigation report refers to the cease-and-desist letter, the letter is not in the
record, there is no discovery request for it, and there is no motion to dismiss
based on vindictive or selective prosecution. But those facts fail to establish
whether trial counsel was aware of the letter, whether he investigated the
frequency with which individuals receiving such letters are prosecuted, or
5
United States v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007), abrogated in part on
other grounds, United States v. Vasquez, 899 F.3d 363, 372 (5th Cir. 2018).
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whether he determined, in his professional judgment, that Diaz would be bet-
ter served by not pressing those claims and instead seeking a more favorable
plea agreement.6
Diaz counters that, “[a]t a minimum, a copy of the cease and desist
letter should have been . . . reviewed . . . to determine whether it contained
any express or implied agreements not to prosecute her . . . .” But that is
mere speculation. She cannot point to any evidence to establish that trial
counsel never reviewed the letter.
“[B]ecause the district court did not hold a hearing and the record
does not provide sufficient detail about trial counsel’s conduct and motiva-
tions to allow this court to make a fair evaluation” of Diaz’s claim, it “is not
ripe for review . . . .” Gulley, 526 F.3d at 821 (quotation omitted). Therefore,
we “decline to consider the issue without prejudice to [Diaz’s] right to raise
it in a subsequent proceeding.” Id.For the reasons explained, Diaz’s conviction is AFFIRMED, and
her claim of IAC is DISMISSED without prejudice.
6
See United States v. Fields, 761 F.3d 443, 454 (5th Cir. 2014) (explaining that
defense counsel may make “tactical decision[s]” if “counsel has developed a reasonable
mitigation theory”).
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