RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0365p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-3808
v.
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Defendant-Appellant. -
MARIO AGUILAR-DIAZ,
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Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 10-00061-001—Sara E. Lioi, District Judge.
Argued: November 30, 2010
Decided and Filed: December 2, 2010
Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Carlos Warner, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Akron, Ohio, for Appellant. Daniel R. Ranke, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Carlos Warner, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, Jeffrey B. Lazarus, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Daniel R.
Ranke, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined. BATCHELDER, C. J. (p. 10), delivered a separate concurring opinion.
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OPINION
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ROGERS, Circuit Judge. In calculating the advisory guidelines sentencing range
for criminal defendant Mario Aguilar-Diaz, the district court below relied on a prior state
conviction that Aguilar-Diaz contends should have been disregarded because the
1
No. 10-3808 United States v. Aguilar-Diaz Page 2
conviction was void rather than merely voidable under a line of Ohio case law.
However, because Aguilar-Diaz’s challenge amounts to a collateral attack on his state
conviction that is not permitted by the guidelines or federal case law, his sentence was
procedurally proper.
Aguilar-Diaz pled guilty to a charge of illegal reentry after deportation, a
violation of 8 U.S.C. § 1326. Under the federal sentencing guidelines, the base offense
level for this crime is 8. U.S.S.G. § 2L1.2(a). Aguilar-Diaz’s offense level was
increased by 4 based on a 2003 Ohio felony conviction for forgery and tampering with
records, U.S.S.G. § 2L1.2(b)(1)(D), and then reduced by 2 based on acceptance of
responsibility. His final offense level was, therefore, 10. The prison sentence resulting
from the forgery conviction also resulted in two additional criminal history points for
Aguilar-Diaz, which his counsel argues elevated Aguilar-Diaz from a criminal history
category of I to II.1 With a base offense level of 10 and a history category of II, Aguilar-
Diaz’s advisory guidelines range was 8 to 14 months. U.S.S.G. § 5A. The district judge
stated that the circumstances did not warrant departure from the guidelines range and
imposed a sentence of 11 months.
At sentencing, Aguilar-Diaz argued that his state felony conviction should not
have been considered in the calculation of his applicable guidelines range because that
conviction is void. The district court rejected this argument as an impermissible
collateral attack on a state conviction, prohibited by Custis v. United States, 511 U.S.
485 (1994). Had the court not considered Aguilar-Diaz’s forgery conviction, he would
have faced a base offense level of 6 and a criminal history category of either I or II. His
recommended guidelines range would have been 0 to 6 months for Category I and 1-7
months for Category II.
Aguilar-Diaz argues that his forgery conviction is void because Ohio law defines
a conviction as including both a finding of guilt and a sentence. He contends that he
1
At one point in the sentencing hearing, the judge, prosecutor, and defense counsel all appeared
to agree that even if the forgery conviction were not considered in determining Aguilar-Diaz’s criminal
history points, he would still have two points and would therefore in any event be in Category II. R.31 at
44-45. In light of our present ruling, we need not resolve this difference.
No. 10-3808 United States v. Aguilar-Diaz Page 3
cannot have an Ohio conviction because the Ohio trial court did not properly impose
post-release control as part of sentencing, thereby making his sentence void and
eliminating one of the elements of a conviction.
By statute, all Ohio prison sentences for classified felonies must include notice
to the offender that he will or may be subject to post-release control after leaving prison.
Ohio Rev. Code § 2929.19(B)(3)(c)-(e); Ohio Rev. Code § 2967.28(B)-(C). This notice
must be provided at the sentencing hearing and be included in the final judgment entry.
State v. Jordan, 817 N.E.2d 864, 869 (Ohio 2004). The sentencing court must specify
whether the term of post-release control is mandatory, the length of the term (or the
maximum potential length if discretionary), and the possible consequences of violating
post-release control. Ohio Rev. Code § 2929.19(B)(3)(c)-(e); Ohio Rev. Code
§ 2967.28(B)-(C).
Aguilar-Diaz’s sentencing entry states: “Defendant given notice of appellate
rights under R.C. 2953.08 and post release control notice under R.C. 2929.19(B)(3) and
R.C. 2967.28.” R.17-1 at 1-2. The entry does not provide any information as to whether
post-release control is mandatory or discretionary, the length of post-release control, or
the consequences of a violation of the terms of post-release control. Because the
sentencing entry does not include this required information, Aguilar-Diaz contends that
his sentence is void ab initio and therefore should not have been considered in
calculating his guidelines range.
A string of recent Ohio Supreme Court decisions supports the proposition that
Ohio sentences that fail to comply with the statutory requirements for imposing post-
release control are void. See Jordan, 817 N.E.2d at 871; State v. Simpkins, 884 N.E.2d
568, 572 (Ohio 2008); State v. Boswell, 906 N.E.2d 422, 423 (Ohio 2009); State v.
Singleton, 920 N.E.2d 958, 964 (Ohio 2009). Underlying all of these cases is State v.
Beasley, 471 N.E.2d 774 (Ohio 1984) (per curiam), in which the trial court disregarded
the statutory requirement of a mandatory minimum prison sentence and imposed only
a fine on the defendant. The state sought to have Beasley resentenced in compliance
with the statute, an act Beasley said would violate her right to be free from double
No. 10-3808 United States v. Aguilar-Diaz Page 4
jeopardy. Id. at 774-75. The court concluded that “[a]ny attempt by a court to disregard
statutory requirements when imposing a sentence renders the attempted sentence a
nullity or void.” Id. at 775. Because the sentence was void, the court held that jeopardy
did not attach, and resentencing Beasley did not constitute double jeopardy. Id.
The Ohio Supreme Court applied Beasley in the post-release control context in
Jordan, a case in which the trial court had failed to notify the defendants about post-
release control at their sentencing hearings. 817 N.E.2d at 871-72. The state argued that
if lack of notice amounted to error, as the court ultimately found, the proper remedy was
a remand for resentencing. Id. at 870. The defendants contended that the proper remedy
would be to have post-release control eliminated from their sentences. Id. Relying on
Beasley, the court concluded that the original sentences were void, and resentencing was
permissible. Id. at 872.
Subsequent Ohio cases involving post-release control sentencing errors fall into
two broad categories: those in which the state sought to correct a sentencing error while
the defendant was still in prison, see, e.g., Simpkins, 884 N.E.2d 568, and those in which
a defendant who had completed his prison term was sanctioned for violating post-release
control that was never properly imposed, see, e.g., Hernandez v. Kelly, 844 N.E.2d 301
(Ohio 2006) (per curiam). Simpkins states the rule that emerged from the two lines of
cases:
[I]n cases in which a defendant is convicted of, or pleads guilty to, an
offense for which postrelease control is required but not properly
included in the sentence, the sentence is void, and the state is entitled to
a new sentencing hearing to have postrelease control imposed on the
defendant unless the defendant has completed his sentence.
884 N.E.2d at 572. Therefore, for defendants who, like Aguilar-Diaz, completed their
prison terms before the sentencing court conducted a de novo resentencing, the Ohio
Supreme Court has said that post-release control cannot be enforced because there was
No. 10-3808 United States v. Aguilar-Diaz Page 5
no sentence on which to justify the parole board’s imposition of control. Singleton, 920
N.E.2d at 964.2
The logic underlying these Ohio decisions appears to assume that while the
sentence may be void, the underlying determination of guilt is not void. Otherwise it
would make no sense for there to be a resentencing in cases like Simpkins. Similarly,
in cases like Hernandez, the void nature of the sentence imposing post-release control
invalidates a subsequent conviction for violating that control, but this does not by any
logic require the invalidation of the original underlying conviction.
This understanding is consistent with the few Ohio lower court cases that have
considered the interaction between these void sentences and other aspects of Ohio
criminal law. In State v. Patterson, the defendant was charged with operating a motor
vehicle while under the influence (“OVI”). No. 09CA0014-M, 2009 WL 5174079 (Ohio
Ct. App. Dec. 31, 2009). Because Patterson had a prior felony conviction for driving
under the influence of alcohol (“DUI”), his OVI charge was elevated to a third-degree
felony. Patterson argued before the trial court that his prior felony DUI conviction was
void for lack of post-release control notification, and therefore did not form a proper
basis for elevating his OVI charge. Id. at *1. The trial court held a hearing on the
matter, noted that the issue was interesting, and expressed a hope that it would be
considered by the Court of Appeals. See id. at *6 (concurring opinion). Ultimately,
however, the trial court determined that Patterson’s prior conviction was not void and
could serve as a basis for elevating the OVI charge. Id. at *1. The Ohio Court of
Appeals disposed of the case on procedural grounds and did not address the question of
whether sentences void for lack of post-release control are properly considered for
assessing subsequent charges. Id. at *3.
2
This summary applies to defendants, like Aguilar-Diaz, who were originally sentenced before
July 11, 2006. On July 11, 2006, the Ohio legislature attempted to eliminate the problems arising from
inadequate post-release control notices by revising its statute to allow courts to correct those deficient
sentences through nunc pro tunc entries, rather than de novo resentencing hearings. Ohio Rev. Code
§ 2929.191. Although the state legislature attempted to make this provision retroactive, the Ohio Supreme
Court held that it could only apply prospectively from the date of enactment. Singleton, 920 N.E.2d at 964.
Because Aguilar-Diaz was sentenced for his state felony prior to July 11, 2006, it is not necessary to
further explore the significance of this statute.
No. 10-3808 United States v. Aguilar-Diaz Page 6
On the same day Patterson was decided, another Ohio appellate court issued an
opinion addressing whether a defendant whose sentence had been voided for lack of
post-release control notification was still subject to the fine and court costs imposed after
his conviction. State v. Biondo, No. 2009-P-0009, 2009 WL 5176657 (Ohio Ct. App.
Dec. 31, 2009) (appeal not accepted for review by Supreme Court of Ohio). The Court
of Appeals rejected as absurd the possibility that the voiding of the original sentence
meant Biondo would “have no record of conviction for the crime to which he admitted
guilt in 2001.” Id. at *8. Instead, the court found that the prison term Biondo had served
could be seen “as a sentence unto itself,” and held that “all sanctions properly imposed
will survive a successful notification challenge.” Id.
In the instant case it is not necessary for us to determine whether Aguilar-Diaz’s
forgery conviction is void in Ohio or, if it is, whether it would still be valid for federal
sentencing purposes. This is because the federal sentencing proceeding is not the proper
forum to challenge that conviction. In Custis, the Supreme Court held that a defendant
could not collaterally attack a state court conviction used for purposes of enhancement
under the Armed Career Criminal Act unless the challenge was based on a violation of
the right to counsel. 511 U.S. at 496. Although the holding relates to enhancement
under the Armed Career Criminal Act, there is language in the opinion to support the
somewhat broader proposition that a defendant cannot attack a state conviction used for
any purpose in federal sentencing proceedings unless he identifies a statute providing for
collateral attack or claims a denial of the right to counsel. Id. at 492 (recognizing that
Congress specifically authorized certain collateral attacks in 21 U.S.C. § 851(c)); id. at
496 (“Custis invites us to extend the right to attack collaterally prior convictions used
for sentence enhancement beyond the right to have appointed counsel . . . .We decline
to do so.”). This court has recognized that Custis applies not just to enhancements under
the Armed Career Criminal Act, but also to enhancements under the sentencing
guidelines. United States v. Bonds, 48 F.3d 184, 186 (6th Cir. 1995).
Aguilar-Diaz argues that Custis does not limit collateral attacks at sentencing to
those based in statute or on the denial of the right to counsel. He reads Custis to stand
No. 10-3808 United States v. Aguilar-Diaz Page 7
for the principle that “sentencing courts may not employ sentencing enhancements based
on vacated or void state convictions.” The basis of this argument is the language from
Custis noting that “[n]one of [Custis’s] alleged constitutional violations rises to the level
of a jurisdictional defect resulting from the failure to appoint counsel at all.” 511 U.S.
at 496. Aguilar-Diaz argues that this language permits any challenge based on a
jurisdictional defect. He then argues that the Ohio sentencing court lacked subject-
matter jurisdiction in his case, citing a state court decision that defines a void sentence
as “one that a court imposes despite lacking subject-matter jurisdiction or the authority
to act,” State v. Payne, 873 N.E.2d 306, 311 (Ohio 2007). However, Aguilar-Diaz does
not explain why his sentence is void for lack of subject-matter jurisdiction rather than
the sentencing court’s lack of authority to impose a sentence that fails to comply with
statutory requirements. His contention that the trial court lacked subject-matter
jurisdiction over a criminal sentencing is unsupported and implausible.
Regardless of the merits of his jurisdiction argument, Aguilar-Diaz misreads
Custis and this court’s precedent by stating that Custis permits non-statutory collateral
attacks beyond right-to-counsel claims. This court has interpreted Custis as recognizing
right-to-counsel violations as the sole non-statutory grounds on which a collateral attack
may be entertained at sentencing. In United States v. Lalonde, 509 F.3d 750, 767-68
(6th Cir. 2007), we held that a defendant’s claim that a prior Kentucky conviction was
invalid and therefore should not be used for sentencing purposes was precluded by
Custis. The court emphasized that “a defendant in a sentencing proceeding may not
collaterally challenge the use of prior convictions or parole revocations for purposes of
criminal history calculation unless the challenge is based upon an alleged violation of
the right to counsel.” Id. at 767. The court noted that Kentucky law did appear to
support Lalonde’s contention that his state felony conviction was invalid. However,
since his conviction had not been declared invalid by any Kentucky court, it was
properly considered for sentencing guidelines purposes. Id. at 768. Lalonde’s
sentencing claim is quite similar to the claim in this case. Under our precedent,
therefore, Aguilar-Diaz’s claim is precluded as a collateral attack on a state conviction.
No. 10-3808 United States v. Aguilar-Diaz Page 8
If Aguilar-Diaz believes he has a valid claim that his state conviction is truly void
in its entirety, he could pursue that claim through state channels for seeking post-
conviction relief.3 Custis, 511 U.S. at 497. If successful, he could then petition the
district court to review his sentence in light of the state court judgment. If, as Aguilar-
Diaz argues, state post-conviction relief is not now available to him because it is as if his
sentence never existed, it appears he is simply foreclosed from attacking his conviction.
See Daniels v. United States, 532 U.S. 374, 383-84 (2001).
Aguilar-Diaz notes that the Supreme Court acknowledged in Daniels that “there
may be rare cases in which no channel of review was actually available to a defendant
with respect to a prior conviction, due to no fault of his own.” Daniels, 532 U.S. at 383.
Presumably, he is asking this court to conclude that some collateral forum must be made
available under those circumstances. However, Daniels did not hold that such cases
offered grounds for collaterally attacking a state conviction during federal sentencing
proceedings. Daniels, 532 U.S. at 383-84. The Court found it unnecessary to resolve
the question, because channels of appeal had been available to Daniels at one time. Id.
Here too, it is not that Aguilar-Diaz never had the opportunity to challenge his prior
sentence, but rather that he had no reason to. Had he raised such a challenge while in
prison, the Ohio courts would simply have applied judicially established corrective
mechanisms to impose post-release control. See State ex rel. Cruzado v. Zaleski, 856
N.E.2d 263, 268 (Ohio 2006). Therefore, while it would have been unwise for Aguilar-
Diaz to raise the claim at that time, it would not have been impossible. Were he, upon
release, improperly made subject to post-release control (and it is not clear that he was),
he would have been able to challenge the restrictions of his post-release control during
that period. The fact that Aguilar-Diaz did not raise these challenges at those times does
not mean he should now be able to do so in the district court. Whether or not state-based
relief is currently available to Aguilar-Diaz, he is precluded from attacking his state
felony conviction in the federal sentencing proceeding.
3
For Aguilar-Diaz, state post-conviction proceedings are now essentially a hypothetical avenue
of relief because he is so close to completing his federal sentence. However, the fact of his relatively short
sentence does not change the analysis.
No. 10-3808 United States v. Aguilar-Diaz Page 9
Because Aguilar-Diaz’s claim that his Ohio felony conviction was improperly
used in calculating his applicable guidelines range is a prohibited collateral attack on a
state conviction, the sentence imposed by the district court is affirmed.
No. 10-3808 United States v. Aguilar-Diaz Page 10
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CONCURRENCE
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ALICE M. BATCHELDER, Chief Judge, concurring. I join the majority opinion
in full, and I write separately only to highlight an ambiguity in Ohio case law, without
which this case would be much simpler. The Ohio Supreme Court makes clear that a
sentence imposed without post-release control is void; that court has failed to clarify,
however, exactly which portion of the sentence is void, or why the court even uses the
term “void” at all. It appears to me, after reviewing the Ohio Supreme Court’s cases on
the subject, that the trial court’s failure to follow Ohio’s requirements for imposing post-
release control renders only the post-release control element void; it does not eliminate
the finding of guilt or the prison term sentence. See Ohio v. Biondo, 2009 WL 5176657,
at *8 (Ohio Ct. App. Dec. 31, 2009) (“[N]otwithstanding the court’s regular conclusion
that improper post-release control notification functions to void the sentence, it appears
that a prison term can be seen . . . as a sentence unto itself. . . . The sentence (and,
perhaps, more importantly, the conviction) survives. . . .”). It would be helpful if the
Ohio Supreme Court would say as much explicitly.