Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-3-2006
USA v. Diaz
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1905
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"USA v. Diaz" (2006). 2006 Decisions. Paper 1799.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1905
UNITED STATES OF AMERICA
v.
JUAN DIAZ,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00060-1)
District Judge: Honorable Clarence C. Newcomer
Submitted Under Third Circuit LAR 34.1(a)
December 5, 2005
Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges
(Filed: January 3, 2006)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Juan Diaz was arrested in June of 2000 after selling heroin to a witness who was
cooperating with the government. A search of Diaz’s house, pursuant to a warrant,
yielded 751 packets of heroin, weighing 23.5 grams, and a loaded .25 caliber pistol. Diaz
pleaded guilty to one count of possession of a controlled substance with intent to
distribute within 1,000 feet of a school in violation of 21 U.S.C. § 860(a). The
Presentence Investigation Report calculated Diaz’s sentencing range at 188 to 235
months, using an offense level of 31 and criminal history category VI.1
Prior to sentencing, Diaz moved for downward departure from the recommended
sentence pursuant to (1) U.S. Sentencing Guidelines Manual § 4A1.3 (2001), on the
grounds that his criminal history category significantly overstated the seriousness of his
criminal history; (2) U.S.S.G. § 5K2.0 and Koon v. United States, 518 U.S. 81 (1996),
based on the conditions of his confinement; and (3) U.S.S.G. § 5K2.0 and United States
v. Salley, 116 F.3d 76 (3d Cir. 1997), based on his claims of postconviction
rehabilitation. The government opposed Diaz’s motions, but moved for downward
departure based on his cooperation under U.S.S.G. § 5K1.1. At a sentencing hearing on
March 19, 2003, Judge Newcomer granted the government’s motion, denied Diaz’s
motions, and sentenced Diaz to 180 months imprisonment, 6 years supervised release, a
$2,500 fine and a special assessment of $100.
On appeal, Diaz argues that Judge Newcomer did not adequately explain the basis
1
The PSI recommended, based on Diaz’s three prior controlled substance convictions,
that Diaz should be sentenced as a career offender within the meaning of U.S. Sentencing
Guidelines Manual § 4B1.1 (2001). As a result of this recommendation, Diaz’s base
offense level, before a three-level acceptance of responsibility reduction, was enhanced
from 22 to 34, and his criminal history category was increased from V to VI.
2
for his denial of Diaz’s downward departure motions.2 The government responds that we
lack jurisdiction over this appeal because the decision whether to grant Diaz’s motion
was within the Judge’s discretion. However, because we conclude that Diaz’s appeal
raises questions under United States v. Booker, 543 U.S. 220 (2005), we have jurisdiction
pursuant to 18 U.S.C. § 3742(a)(2).
Diaz did not respond to our initial letter notifying him of his right to raise Booker
claims. We sent a second letter directing Diaz to comment on the applicability of Booker
to his case, and Diaz responded that he wishes to be resentenced in light of Booker.
Diaz’s failure to raise a Booker issue within the time specified in our first letter, while
regrettable, “is not fatal” to his appeal. United States v. Ramirez-Erregun, 149 Fed.
App’x 111, 113 (3d Cir. 2005). Because such claims are “question[s] of law that require[
] no additional findings of fact,” and failure to address them would result in miscarriages
of justice, see United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (en banc) (“[A]
defendant’s substantial rights may have been affected where the District Court erred by
treating the Guidelines as mandatory rather than advisory.”), we retain discretion to
consider them even if they have been waived. Ramirez-Erregun, 149 Fed. App’x at 113
(citing Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005)).
In United States v. Davis, we held that defendants sentenced under the mandatory
guideline regime whose sentences were on direct appeal when Booker was decided are
2
Diaz does not appeal his conviction.
3
entitled to a remand for resentencing pursuant to Booker. Davis, 407 F.3d at 165.
Applying Davis here, we will vacate Diaz’s sentence and remand for resentencing.
_________________
4