                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

USA v. David Diaz
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2051




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Recommended Citation
"USA v. David Diaz" (2009). 2009 Decisions. Paper 1682.
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 08-2051


                         UNITED STATES OF AMERICA

                                          v.

                                   DAVID DIAZ,
                                             Appellant


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Crim. No. 06-cr-00202-1)
                 District Judge: The Honorable Anita B. Brody


                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 2, 2009


                 Before: BARRY, WEIS, and ROTH, Circuit Judges

                          (Opinion Filed: March 26, 2009)


                                      OPINION




BARRY, Circuit Judge

     Appellant David Diaz was indicted on three counts: one for illegal reentry after
deportation, and two for violations of the drug laws.1 After pleading guilty to the illegal

reentry count, a jury convicted Diaz on the drug counts. On appeal, Diaz challenges his

sentence of 121 months imprisonment. For the reasons that follow, we will affirm the

judgment of sentence.

                                             I.

       This case arises out of a drug interdiction that occurred at the Mexican border in

2005. After stopping a tractor-trailer truck and detecting something suspicious, border

patrol agents discovered over 1,000 pounds of marijuana hidden in adobe-style plaster

products. Hoping to ensnare the drug purchasers in a sting operation, Immigration and

Customs Enforcement (“ICE”) agents then arranged for the truck to be transported from

Texas to Pennsylvania. The sting was successful: a variety of persons, including Diaz,

were eventually arrested and indicted in connection with the drug bust.

       Diaz pled guilty to the illegal reentry count, and was convicted on the two drug

counts. At sentencing, the District Court imposed a two-level enhancement after finding

that Diaz acted in a supervisory role pursuant to U.S.S.G. § 3B1.1(c). Taking this

enhancement into account, Diaz had a base offense level of 31; with a criminal history

category of II, he faced a Guidelines range of 121 to 151 months. The District Court


   1
     More specifically, Diaz was charged with illegal reentry after deportation, in
violation of 8 U.S.C. § 1326, conspiracy to possess with the intent to distribute 100
kilograms or more of marijuana, in violation of 21 U.S.C. § 846, and aiding and abetting
possession with the intent to distribute 100 kilograms or more of marijuana, in violation
of 21 U.S.C. § 841.

                                            -2-
ultimately sentenced Diaz to the low end of the range, 121 months.

       Diaz alleges error in two respects: first, he asserts that his sentence violates United

States v. Booker, 543 U.S. 220 (2005), and its progeny because the sentencing

enhancement and facts undergirding that enhancement were not proven to the jury beyond

a reasonable doubt; second, he asserts that the District Court committed clear error when

it found that Diaz acted in a supervisory role.

                                              II.

       The government did not have to prove the sentencing enhancement to the jury

beyond a reasonable doubt. The now-familiar remedial holding of Booker dictates that

because the Guidelines are advisory, facts upon which sentencing enhancements are

based need not be proven to a jury beyond a reasonable doubt. See, e.g., Booker, 543

U.S. at 244-68; United States v. Grier, 475 F.3d 556, 565-66 (3d Cir. 2007). Indeed, Diaz

acknowledges that this issue is raised for “the purpose of preserving [it] for possible

review by the United States Supreme Court.” (Appellant’s Br. 10.) There was no error.

                                            III.

       Diaz next challenges whether the evidence supports the District Court’s finding

that he played a supervisory role. The relevant Guidelines provision provides for a two-

level enhancement if a defendant was an “organizer, leader, manager, or supervisor” in

the criminal activity in question. U.S.S.G. § 3B1.1(c). We will reverse the District

Court’s factual determination here “only if its conclusion was clearly erroneous.” United


                                            -3-
States v. Felton, 55 F.3d 861, 864-65 (3d Cir. 1995) (affirming a § 3B1.1(c) enhancement

even though the record on the issue was “not extensive”). An enhancement under §

3B1.1(c) need only be proven by a preponderance of the evidence. See supra (discussing

and rejecting Diaz’s Booker challenge).

       The District Court did not err in granting the supervisory role enhancement. In

making its determination, the Court considered the trial and grand jury testimony of

Diaz’s co-conspirators, the statements of his co-conspirators as recounted by an ICE

agent, and a videotape showing Diaz at the scene while other persons unloaded the

drugs.2 (See App. 417-18.) This evidence supports the finding that Diaz played a

supervisory role. (See, e.g., id. at 233-50 (co-conspirator trial testimony); id. at 408-09

(ICE agent testimony recounting statements of co-conspirators that indicate Diaz directed

them); see also Supplemental App. 7-8, 14 (co-conspirator grand jury testimony

indicating Diaz hired co-conspirator to drive him).)

       Diaz correctly notes that § 3B1.1(c) cannot apply if all the participants to a crime

share equal responsibility. See, e.g., United States v. Katora, 981 F.2d 1398 (3d Cir.


   2
     Diaz’s challenge to the admissibility of the evidence is unavailing. While it is true
that his co-conspirators were cooperating with the government and hoping for leniency
and that they had used drugs in the past, such motivations and circumstances are
commonplace and do not preclude the Court from relying on that evidence. Additionally,
hearsay evidence is generally admissible at sentencing. See, e.g., Fed. R. Evid.
1101(d)(3) (noting that Federal Rules of Evidence are inapplicable in sentencing
proceedings); United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007) (rejecting
contention that the Sixth Amendment precludes admission of hearsay evidence at
sentencing, calling “[t]he law on this issue . . . well settled”).

                                            -4-
1992) (finding that supervisory role enhancement cannot apply unless defendant had

control over at least one person). However, the District Court concluded that the

participants in this crime did not share equal responsibility, and that Diaz had a

supervisory role. The supervisory role enhancement can apply to a number of persons

within the ambit of the same conspiracy, and the District Court did not err in concluding

that Diaz was a supervisor within the conspiracy and deserving of the enhancement.

                                             IV.

       We will affirm the judgment of sentence.




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