In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4048
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID D IAZ-G AUDARAMA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:07 CR 0007—David F. Hamilton, Judge.
A RGUED A PRIL 16, 2010—D ECIDED JULY 29, 2010
Before E ASTERBROOK, Chief Judge, F LAUM, Circuit Judge,
and H IBBLER, District Judge.
F LAUM, Circuit Judge. Defendant-appellant David Diaz-
Gaudarama appeals from the sentence he received after
pleading guilty to conspiring to distribute methamphet-
amine, cocaine, and marijuana. After about a year of delay
The Honorable William J. Hibbler, District Judge for the
Northern District of Illinois, sitting by designation.
2 No. 09-4048
due to what the district court ultimately concluded to
be malingering, Diaz-Gaudarama went to trial. Diaz-
Gaudarama attempted to plead guilty on the morning
of trial but the district court rejected the plea because of
concern about Diaz-Gaudarama’s remarks that he
sought to plead guilty in order to receive medical care.
After the government rested its case, Diaz-Gaudarama
again expressed a desire to plead guilty, this time
stating that he was aware of what he had done. The
district court accepted the plea. At sentencing, the
district court refused to credit Diaz-Gaudarama with
the two-point reduction for acceptance of responsibility.
Diaz-Gaudarama appeals, and we affirm.
I. Background
From 2005 through 2008, Diaz-Gaudarama was a
member of a cocaine, methamphetamine, and marijuana
trafficking conspiracy that operated in southeastern
Indiana; Louisville, Kentucky; and Miami, Florida.
Throughout 2007, federal, state, and local law enforcement
made controlled purchases of cocaine and methamphet-
amine from members of the group. In May 2007, law
enforcement received authorization to conduct telephone
surveillance of certain members of the organization.
During the course of that surveillance, law enforcement
recorded several conversations between members of the
conspiracy, including Diaz-Gaudarama, regarding their
drug distribution activities.
In June 2007, Diaz-Gaudarama was indicted and
charged with conspiring to possess with intent to dis-
No. 09-4048 3
tribute and to distribute in excess of 500 grams of metham-
phetamine and in excess of five kilograms of cocaine
and marijuana. The government accused Diaz-Gaudarama
of arranging for drug shipments from Miami to Louisville
and acting as a distributor within the organization in
Indiana and Kentucky.
Shortly after his indictment, Diaz-Gaudarama raised
the issue of his competency to stand trial. His counsel
moved for a competency hearing, stating that his client
“exhibited difficulty in understanding the charges against
him, the nature of the court proceedings, and failed to
respond in a logical manner to questions asked of him
by the Magistrate in open court and to counsel’s ques-
tioning in private.” This began a series of psychiatric
evaluations.
The magistrate judge presiding over pretrial matters
in this case initially sent Diaz-Gaudarama to Lexington,
Kentucky, for an evaluation. The initial evaluation
found that Diaz-Gaudarama was in need of psychiatric
treatment and placed him on suicide watch. Diaz-
Gaudarama was then transferred to the Federal Medical
Center in Butner, North Carolina, for evaluation and
restoration to competency, where he remained for
several months.
On April 25, 2008, the district court held a competency
hearing. Diaz-Gaudarama’s court-appointed psychiatrist
testified that Diaz-Gaudarama was not competent to
stand trial and recommended that Diaz-Gaudarama
continue to receive services at a specialized facility.
However, the evaluation conduct by doctors at the
4 No. 09-4048
Medical Center, which the district court also considered,
concluded that Diaz-Gaudarama was malingering and
was in fact competent to stand trial. According to the
report, Diaz-Gaudarama admitted to a staff member,
“I lied to my doctors to get my charges dropped, I’m
really not crazy.” The report also notes other admissions
of malingering to various Spanish-speaking staff mem-
bers. (Diaz-Gaudarama speaks little English and relies
on an interpreter when testifying in court.) Finally, the
report documents several instances of claimed ailments
that proved to be false; for example, Diaz-Gaudarama
falsely claimed not to have slept for 25 days and that
he was unable to swallow food. Presented with both
assessments of Diaz-Gaudarama’s condition, the district
court concluded that Diaz-Gaudarama was “to put it
bluntly . . . pretend[ing] to act crazy” and that while he
“has shown an ability to maintain this act for days and
even weeks at a time . . . he did not manage to keep it
up during the much longer evaluation at Butner.” After
noting that this act had “already delayed the case
for more than a year,” the district court determined that
Diaz-Gaudarama was competent to proceed to trial.
On May 19, 2008, Diaz-Gaudarama provided notice
of his intent to rely upon an insanity defense at trial.
This notice triggered another round of mental health
evaluations by the Bureau of Prisons and the defense-
retained expert. Diaz-Gaudarama moved the district
court to reconsider its competency determination based
on this additional evidence, but the district court denied
the motion, concluding that the additional examinations
did not shed new light on Diaz-Gaudarama’s competency.
No. 09-4048 5
Diaz-Gaudarama’s jury trial was scheduled to be-
gin on June 8, 2009. That day, before jury selection
began, Diaz-Gaudarama attempted to plead guilty to the
charge contained in the indictment. During the change
of plea hearing, Diaz-Gaudarama admitted several
details about the offense. At the end of the hearing, how-
ever, the district court asked Diaz-Gaudarama what
medicines he had been taking in the past few days. Diaz-
Gaudarama responded that he was taking a small
white pill and he thought it was harming him. He said
he did not know what the pill was supposed to do, but
that he was having difficulty swallowing it because
something was wrong with his throat. When the
district court informed Diaz-Gaudarama that he would
receive a sentence of at least ten years in prison, and up
to life, Diaz-Gaudarama responded, “just as long as I get
sent to the doctor, you can give me ten years. You can
give me life. Just make sure I get to the doctor.” In light
of these statements, the district court refused to accept
the guilty plea.
The government completed its case on the third day of
trial. During an ensuing discussion with the district court
concerning his right to testify in his own defense, Diaz-
Gaudarama announced again that he wished to plead
guilty. This time, Diaz-Gaudarama informed the district
court that he wished to plead guilty because he was, in
fact, guilty as charged. When asked again why he
wished to plead guilty, Diaz-Gaudarama stated, “because
I don’t want to get too much time, and I am also aware
of what I have done as well.” After a plea colloquy, the
6 No. 09-4048
district court accepted Diaz-Gaudarama’s guilty plea,
and the jury was excused.
The probation office then prepared a presentence
report (PSR) for Diaz-Gaudarama, which calculated a
base offense level of 36 and a criminal history category
of I. The report also included a two-level guidelines
reduction for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1(a). This resulted in a guideline range
of 151 to 188 months of imprisonment. Neither the gov-
ernment nor the defendant objected to the PSR before
the sentencing hearing.
The sentencing hearing was held on November 23, 2009.
The government again stated that it had no objection to
the PSR. Sua sponte, the district court raised the ques-
tion of whether Diaz-Gaudarama was entitled to an
acceptance-of-responsibility credit and whether Diaz-
Gaudarama should receive an enhancement for obstruc-
tion of justice because of his malingering. After hearing
argument from both sides, the district court declined
to allow a reduction for acceptance of responsibility.
The district court noted that it was not until the eve of
trial that Diaz-Gaudarama attempted to plead guilty,
and that he did not in fact do so until after the gov-
ernment had presented its case against him. The
district court did not give Diaz-Gaudarama an enhance-
ment for obstruction of justice, ultimately deciding to
give Diaz-Gaudarama “the benefit of the doubt.” This
resulted in a total offense level of 36 and a criminal
history category of I, for a guidelines range of 188 to
235 months of imprisonment. The district court sen-
No. 09-4048 7
tenced Diaz-Gaudarama to 210 months of imprisonment.
No fine was imposed, and the district court ordered a five-
year term of supervised release to follow imprisonment.
II. Analysis
Under the advisory guidelines, a defendant may
receive a two-level decrease in his offense level if he
“clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). A district court’s deci-
sion to award or deny a defendant a reduction for accep-
tance of responsibility depends heavily on the facts, and
is thus reviewed for clear error. See United States v.
McIntosh, 198 F.3d 995, 999 (7th Cir. 2000).
Diaz-Gaudarama argues that his initial plea colloquy
on June 8, 2009, is the sort of full and accurate account
of his misconduct contemplated by application note 1(a)
to U.S.S.G. § 3E1.1, which identifies as an appropriate
consideration “truthfully admitting the conduct com-
prising the offense(s) of conviction, and truthfully ad-
mitting or not falsely denying any additional relevant
conduct . . . .” He wants us to focus on his first attempt
to plead guilty, because entering a plea of guilty prior to
trial and admitting the conduct comprising the offense
of conviction is “significant evidence of acceptance of re-
sponsibility.” See U.S.S.G. § 3E1.1 n.3. Of course, the
district court did not actually accept Diaz-Gaudarama’s
plea until after the government had put on its case. And
in any event, a guilty plea before trial “may be out-
weighed by conduct of the defendant that is inconsis-
tent with such acceptance of responsibility.” Id.
8 No. 09-4048
We have long held that the last-minute nature of a
guilty plea provides a significant basis to deny an
acceptance-of-responsibility reduction. See, e.g., United
States v. Carrera, 259 F.3d 818, 827 (7th Cir. 2001) (affirming
denial of an acceptance-of-responsibility reduction for a
defendant who attempted to plead guilty on the first
day of trial); United States v. Sierra, 188 F.3d 798, 804-05
(7th Cir. 1999) (affirming denial of an acceptance-of-
responsibility reduction for defendant who pleaded
guilty on the last business day before trial); United States
v. Rosalez-Cortes, 19 F.3d 1210, 1219 (7th Cir. 1993) (af-
firming denial of an acceptance-of-responsibility reduc-
tion for a defendant who pleaded guilty after a two-day
bench trial). Even when a defendant pleads guilty in a
timely manner, statements or conduct inconsistent with
acceptance of responsibility may prevent a defendant
from receiving a reduction. Rather than formulating
categorical tests, we ask that district courts “assess the
defendant’s demonstration of ‘genuine remorse,’ or ‘con-
science.’ ” McIntosh, 198 F.3d at 999-1000 (quoting United
States v. Dvorak, 41 F.3d 1215, 1217 (7th Cir. 1994)).
The district court’s decision in this case was not clear
error. First, the district court properly relied on the last-
minute nature of the plea, as the earliest attempt Diaz-
Gaudarama made to plead guilty occurred on the morning
of trial. See Sierra, 188 F.3d at 804-05. Second, Diaz-
Gaudarama’s own statements during his plea colloquy
do not reflect remorse, but rather suggest that he
pleaded guilty in an attempt to reduce his punishment;
he said only that he didn’t want to “get too much time”
and that he was “aware of what he had done.” Finally, the
No. 09-4048 9
district court found that Diaz-Gaudarama had faked
psychological illness in an attempt to evade punish-
ment. While the district court exercised its discretion
and did not apply the obstruction of justice enhance-
ment, this conduct is nonetheless inconsistent with
genuine remorse for one’s crime. Cf. United States v.
Ewing, 129 F.3d 430, 435 (7th Cir. 1997) (holding that an
acceptance-of-responsibility reduction is generally not
appropriate where defendant has obstructed justice);
U.S.S.G. § 3E1.1 n.4 (same). Given Diaz-Gaudarama’s
attempt to avoid criminal responsibility for his actions,
the absence of statements by Diaz-Gaudarama reflecting
remorse for his crime, and the last-minute nature of
his attempt to plead guilty, he is not entitled to a reduc-
tion in his advisory guideline range for acceptance of
responsibility.
III. Conclusion
We A FFIRM the judgment of the district court.
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