United States v. Josue Diaz

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 10, 2005
No. 04-14663
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-20099-CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSUE DIAZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 10, 2005)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Josue Diaz appeals his 18-month prison sentence for possession with intent
to distribute cocaine, a violation of 21 U.S.C. section 841(a)(1), and 60-month

prison sentence for carrying a firearm during a drug-trafficking offense, a violation

of 18 U.S.C. section 924(c)(1)(A). Diaz argues that the district court violated his

Fifth and Sixth Amendment rights, under United States v. Booker, 542 U.S. —,

125 S. Ct. 738 (2005), when it sentenced him based on a drug quantity that was not

admitted by Diaz, found by a jury, or contained in the indictment. Diaz also argues

that the district court erred when it sentenced him under a mandatory Sentencing

Guidelines regime. Because Diaz admitted the drug quantity during his plea

colloquy and his sentence was within the statutory maximum charged in the

indictment, the district court did not violate Diaz’s constitutional rights. The

government concedes, however, that the district court did commit statutory error

when it sentenced Diaz under mandatory Guidelines, and we remand for

resentencing.

Because Diaz raised a Blakely argument in the district court, we review his

sentence de novo and will reverse for harmful error. United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). Diaz pleaded guilty to cocaine possession with intent to

distribute. During his plea colloquy, the government specified that it would have

proved at trial that Diaz sold a government agent cocaine on two occasions, and

that the total quantity of cocaine from both sales was 110.8 grams. After the

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government concluded its summary of the facts, the district court asked Diaz if

what the government stated was correct, and Diaz responded in the affirmative.

Because Diaz admitted the drug quantity, the district court did not violate Diaz’s

Sixth Amendment argument rights. United States v. Shelton, 400 F.3d 1325, 1330

(11th Cir. 2005).

Diaz also argues that the district court violated his Fifth Amendment rights

by sentencing him beyond the statutory maximum based on drug quantity

unspecified in the indictment. In United States v. Cotton, the Supreme Court held

that the enhancement of a sentence above the statutory maximum on the basis of a

fact not alleged in the indictment violates the Fifth Amendment. 535 U.S. 625,

632, 122 S. Ct 1781, 1785 (2002). The statutory maximum is found in the United

States Code, United States v. Duncan, 400 F.3d 1297, 1303-04 (11th Cir. 2005),

and Diaz’s 18-month sentence for cocaine possession was well within the 20-year

statutory maximum of 21 U.S.C. section 841(b)(1)(C). Because the district court

did not sentence Diaz beyond the statutory maximum, it did not commit Fifth

Amendment error.

The district court erred, however, when it sentenced Diaz under the

mandatory Guidelines that the Supreme Court held to be advisory in Booker. The

government concedes this statutory error and that it cannot show that the error was

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harmless. We, therefore, vacate Diaz’s sentence and remand for resentencing.

VACATED and REMANDED.

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