Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-14-2005
USA v. Diaz-Cruz
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4370
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-4370
UNITED STATES OF AMERICA
v.
OSCAR REYNALDO DIAZ-CRUZ,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 03-cr-00657)
District Judge: Hon. Jose L. Linares
Submitted pursuant to Third Circuit LAR 34.1(a)
Friday, September 16, 2005
Before: ROTH, McKEE and FISHER,
Circuit Judges
(Opinion filed: October 14, 2005)
OPINION
McKEE, Circuit Judge.
Oscar Reynaldo Diaz-Cruz appeals the sentence that was imposed following
acceptance of his guilty plea. For the reason that follows, we will vacate the sentence and
remand for resentencing pursuant to United States v. Booker, U.S. , 125 S.Ct. 738
(2005). See United States v. Davis, 407 F.3d 162 (3d Cir. 2005).
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I.
Because we write primarily for the parties, we recite only the facts and procedural
history that are necessary to the disposition of this appeal. Pursuant to a plea agreement,
Diaz-Cruz pleaded guilty to a one-count indictment charging him with illegal reentry in
violation of 8 U.S.C. § 1326(a) and (b)(2). The plea agreement stipulated that the
applicable Sentencing Guideline was U.S.S.G. § 2L1.1, which carried a base offense level
of 8, and that Diaz-Cruz had been convicted of an offense that qualified as an aggravated
felony. That resulted in a sixteen-level increase in the offense level. The parties also
agreed that if Diaz-Cruz’s acceptance of responsibility continued through sentencing, he
would be eligible to receive a three-level downward adjustment. Diaz-Cruz agreed to a
limited waiver of appeal that barred any challenge to the “determination or imposition of
the offense level, if the total offense level determined by the court is equal to or less than
21.” App. 7-72, ¶ 5.
The guilty plea was accepted by the district court on April 19, 2004. However,
after the plea was entered, but before the Presentence Investigation Report (“PSR”) was
prepared, the Supreme Court issued its decision in Blakely v. Washington, U.S. , 124
S.Ct. 2531 (2005). At sentencing, Diaz-Cruz argued that Blakely’s reasoning applied to
the Sentencing Guidelines. More specifically, he argued that Blakely’s rationale
precluded the assessment of two points pursuant to U.S.S.G. § 4A1.1(e) (applicable when
a defendant has committed the instant offense within two years of his release from
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custody). The district court disagreed with Diaz-Cruz based on his admissions at the plea
colloquy, and Diaz-Cruz is not pursuing that argument on appeal. The district court
imposed a term of imprisonment of 87 months, which was within the guidelines range of
77 to 96 months.
In doing so, the court noted that, even if it had refused to apply the two-point
assessment, which would have resulted in a range of 70 to 87 months, it “would have
probably” imposed a sentence at the top of that lower range. App. 24:19-22. The district
court “applied the Guidelines and all relevant enhancements in this case.” App. 12.
On appeal, Diaz-Cruz does not contest the district court’s assessment of the two
points. Rather, he argues that the district court failed to sentence him in accordance with
the principles enunciated by the Supreme Court in United States v. Booker, U.S. , 125
S.Ct. 738 (2005). Under Booker, the Sentencing Guidelines are “effectively advisory.”
Id. at 757. Accordingly, district courts will now consider the applicable advisory
Guidelines in addition to the factors set forth in 18 U.S.C. § 3553(a).
Although Booker was decided after Diaz-Cruz was sentenced, Booker is applicable
to all cases on direct review. 125 S.Ct. at 769. Accordingly, pursuant to our decision in
United States v. Davis, 407 F.3d 162 (3d Cir. 2005), we will vacate the sentence and
remand for resentencing pursuant to Booker.
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