                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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                                                                 NOT PRECEDENTIAL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.

_________________




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