     Case: 09-11047 Document: 00511384042 Page: 1 Date Filed: 02/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 16, 2011

                                       No. 09-11047                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

SERGIO DIAZ,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 03:08-cr-00267


Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       This appeal presents three issues regarding defendant Sergio Diaz’s
sentence following his guilty plea to conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 846. Diaz stipulated that he had
conspired in a large drug trafficking organization by allowing the organization
to use his commercial property as a staging area to load and unload money and
drugs from truck containers, which would be used to store and transport the
contraband. He also acknowledged that he accompanied co-conspirators in

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-11047

shopping for truck containers like those used to store the contraband. Over
Diaz’s objection, the district court ordered forfeited the entire commercial
property, which consisted of four tracts of land. The district court also refused
Diaz’s request for a mitigating role adjustment. We AFFIRM both of these
decisions. In its written judgment of sentence, the district court also included
as a condition of Diaz’s supervised release that Diaz register as a sex offender.
Because the court had not included that condition in its oral pronouncement of
sentence, and none of the offenses related to Diaz’s conviction included a sexual
offense, we VACATE his sentence in part and REMAND for re-sentencing
without this condition.


                          BACKGROUND AND FACTS
      Sergio Diaz pleaded guilty to conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 846. The charges arose from Diaz’s
involvement with the Rodriguez drug trafficking organization (“Rodriguez
DTO”), a large drug trafficking organization operating in Dallas, Texas, which
moved drugs from Mexico to the United States and sent money back to Mexico.
Diaz’s participation consisted primarily of renting his commercial property to the
organization to park large tractor trailers in order to load and unload money and
drugs. Diaz acknowledged that he was “trying to provide a storage facility for
the [Rodriguez DTO] conspiracy,” and that “he was aware that the [Rodriguez
DTO’s] tractor-trailers that went through his business had drugs and money in
them.” Diaz also acknowledged that “he was personal friends with . . . co-
conspirator Hector Rodriguez,” who ran the Rodriguez DTO, and “that he got
drugs for personal use from Mr. Rodriguez and he also was involved in some
transactions on behalf of friends.” In addition, Diaz accompanied other members
of the conspiracy in shopping for tractor trailers to use in the conspiracy, and



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offered to construct structures on his property to further assist the conspiracy’s
furtive operations.
         The Presentence Report (“PSR”) held Diaz accountable for 331.7 kilograms
of cocaine because the government seized $6,633,930 in drug trafficking proceeds
from tractor trailers leaving Diaz’s property, and the PSR estimated a cash value
of $20,000 per kilogram of cocaine. Diaz admitted that the amount of drugs that
he was involved in was greater than 5 kilograms, and while he disavowed
responsibility for “the tremendous amounts of cocaine that went through . . . his
place of business,” he acknowledged that “he fully underst[ood] that this was a
large-scale . . . drug conspiracy that involved lots of drugs and a lot of money.”
Diaz stipulated, in the Factual Resume supporting his plea, that:
         [D]uring the time of his participation in the conspiracy[,] . . . [Diaz]
         allowed two parcels of his property to be used to stage vehicles that
         were being used to move cocaine. Diaz knew these two parcels were
         being used for this illegal purpose. However, Diaz did not know the
         extent of the conspiracy and the amount of drugs that was being
         moved by other individuals in the conspiracy.
         Pursuant to 21 U.S.C. § 853(a), the Government sought forfeiture of these
two parcels and two contiguous parcels of Diaz’s land, which the Government
argued were all part of the same “property” used to facilitate the drug
conspiracy. The four tracts are numbered, from north to south, one, four, three,
two.1 Diaz conceded that the northern most tracts, one and four, were used
during the conspiracy, but disputed the forfeiture of the southern tracts, two and
three.       He argued that the DTO’s tractor trailers only ever occupied the
northernmost two tracts and, at most, occasionally touched upon tract three
while maneuvering to park or exit the property.            In the district court, the
Government and Diaz stipulated that Diaz obtained the tracts at the same time



         1
        The addresses of the four parcels are, north to south, 3730, 3742, 3802, and 3806
Cotton Lane.

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and in the same warranty deed, that the tracts are contiguous, and that they are
identified as mentioned above. They also agreed that: In photographs, the four
parcels appear as a single, undivided piece of real property; that no fences or
walls divide them from each other; various vehicles have been and are parked
on the parcels; various storage containers have been and are placed on the
property; the gated entrance to the property stands on tract one, at 3730 Cotton
Lane, but the sign near it states “3802 Cotton”; and that there are two structures
on the southernmost end of the four tracts, a metal frame of a building and a
roofed carport.
      Diaz alleged other facts that he argued distinguished the tracts as
separate units of property. He presented evidence that the tracts are taxed
separately, and argued that he intended to use the property for two different
business purposes: tracts one and four, on the north end, were to be used as a
tractor trailer storage and repair area; and tracts three and two, on the south
end were to be used to operate a commercial tire repair business. He claimed
that the steel frame of a structure on the southern end of the four tracts was a
building being erected to house the tire repair business. Diaz also introduced
evidence of a site plan that he prepared showing his intended use of the property
for these separate businesses.
      The district court concluded that all four tracts were part of Diaz’s
“property” as defined in § 853(a), and, at sentencing, ordered all four tracts
forfeited. Diaz objected to that decision.
      Diaz also requested a downward adjustment in his offense level under
§ 3B1.2 of the Sentencing Guidelines, arguing that his role in the Rodriguez
DTO was limited to a minimal or minor role, which the district court denied. As
a result, the court assessed Diaz’s offense level at 34, which provided a
guidelines range of 151 to 188 months. Diaz objected to this calculation based
upon his claim that he was entitled to a downward adjustment under § 3B1.2.

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      The district court sentenced Diaz to 151 months incarceration and a term
of supervised release of 5 years. In its oral pronouncement of sentence, the court
ordered Diaz to “comply with the standard terms and conditions for supervised
release,” and specified additional terms and conditions, which did not include
registration as a sex offender.    However, the court’s written judgment of
sentence included sex offender registration as a term of Diaz’s supervised
release.
      Diaz appealed, alleging that the district court erred by: (1) ordering
forfeited all four tracts of Diaz’s property, (2) denying a mitigating role
adjustment under § 3B1.2, and (3) including registration as a sex offender in the
terms of Diaz’s supervised release in the court’s written judgment.


                                 DISCUSSION
I.    Forfeiture of property
      “This court reviews ‘the district court’s findings of fact under the clearly
erroneous standard, and the question of whether those facts constitute legally
proper forfeiture de novo.’” United States v. Juluke, 426 F.3d 323, 326 (5th Cir.
2005) (quoting United States v. Marmolejo, 89 F.3d 1185, 1197 (5th Cir. 1996)).
For forfeiture under § 853(a), “[t]he Government must establish the requisite
nexus between the property and the offense by a preponderance of the evidence.”
Id. (citing Fed. R. Crim. P. 32.2(b)(1); United States v. Gasanova, 332 F.3d 297,
300-01 (5th Cir. 2003)).
      The criminal forfeiture statute at issue in this appeal, 21 U.S.C. § 853,
provides, in relevant part:
      (a) Property subject to criminal forfeiture
      Any person convicted of a violation of this subchapter or subchapter
      II of this chapter punishable by imprisonment for more than one
      year shall forfeit to the United States, irrespective of any provision
      of State law-- . . .


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            (2) any of the person’s property used, or intended to be used,
            in any manner or part, to commit, or to facilitate the
            commission of, such violation . . . .
      The district court held that “property subject to forfeiture under § 853(a)
is defined by ‘the instruments and documents that created the defendant’s
interest in the property,’” quoting from the Eighth Circuit’s decision in United
States v. Bieri, 21 F.3d 819, 824 (8th Cir. 1994). Accordingly, the court held that
all four tracts of Diaz’s property should be forfeited because they were all
conveyed in the same deed.
      The Government endorses this interpretation of “property” subject to
seizure under § 853(a). In addition to Bieri, the Government also relies on
decisions from the Sixth and Fourth Circuits that have adopted a similar
interpretation of “property” subject to forfeiture under § 853(a). See United
States v. Smith, 966 F.2d 1045, 1053 (6th Cir. 1992); United States v. Reynolds,
856 F.2d 675, 676-77 (4th Cir. 1988). Diaz contends that “property” under
§ 853(a) should be defined on a “case-by-case analysis” and relies on the
Eleventh Circuit’s decision in United States v. 817 NE 29th Drive, Wilton
Manors, Florida (Wilton Manors), 175 F.3d 1304, 1308 (11th Cir. 1999). Diaz
argues that the Eleventh Circuit’s approach—which requires “examin[ation] [of]
the character of the land on which the criminal activity took place . . . [in order
to] determine whether all of the land sought by the Government can be
considered to be of that same character,” id. at 1308—is a better vehicle for
attaining just results, because a per se rule that decides forfeiture based on the
deed of conveyance is not only arbitrary, but is subject to manipulation by
sophisticated drug dealers.    Diaz argues that all four tracts should not be
considered the same property under the Eleventh Circuit’s approach because
“[w]hile the property remains largely undeveloped (with the only development
occurring on the southern tracts, where Diaz had begun constructing his tire



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shop), the local land records distinguish among the four tracts in a way that
would make it easy to forfeit two of the four tracts.”
       We need not decide whether to adopt the approach endorsed in Bieri and
like cases, or the approach endorsed in Wilton Manors, because under either
approach, all four tracts of Diaz’s property are subject to forfeiture.       It is
undisputed that Diaz obtained all four tracts in a single deed of conveyance, and
therefore, under Bieri, all four tracts are subject to forfeiture. See 21 F.3d at
824. The record also reveals that the four tracts were transferred at the same
time and in the same deed; they were contiguous, united, and not demarcated
by any boundaries; they were accessible through a single entryway, marked with
a single street address; and the four tracts had an undifferentiated commercial
character. Therefore, under Wilton Manors, all four tracts together constitute
Diaz’s “property” subject to forfeiture under § 853(a). See 175 F.3d at 1308.
Diaz’s contention that the local land records distinguish among the four tracts
and tax them separately, as well as his subjective intentions for dividing the
property into two separate business operations, do not alter the singular
character of the property as it existed throughout the conspiracy and at the time
of Diaz’s arrest. See United States v. Santoro, 866 F.2d 1538, 1543 (4th Cir.
1989) (“The [owner’s] subjective characterization of the property as two tracts
cannot serve as the legal basis” for determining “property” under 28 U.S.C.
§ 881, a civil forfeiture statute analogous to § 853.). Therefore, we affirm the
district court’s determination that all four tracts together constitute Diaz’s
“property” subject to forfeiture under § 853(a).


II.    Mitigating role adjustment
       Whether a defendant is a minor or minimal participant is a factual
determination reviewed for clear error. United States v. Villanueva, 408 F.3d
193, 203 (5th Cir. 2005); see also U.S.S.G. § 3B1.2 cmt. n.3(C). “A factual finding

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is not clearly erroneous if it is plausible in light of the record read as a whole.”
Villanueva, 408 F.3d at 203.
      We conclude that the district court did not clearly err in determining that
Diaz was not entitled to a downward adjustment under § 3B1.2 since Diaz did
not even qualify as a “minor participant,” which is the lowest threshold for a
downward adjustment under § 3B1.2.2 “It is not enough that a defendant ‘does
less than other participants; in order to qualify as a minor participant, a
defendant must have been peripheral to the advancement of the illicit activity.’”
Villanueva, 408 F.3d at 203-04 (quoting United States v. Miranda, 248 F.3d 434,
446-47 (5th Cir. 2001)).
      Diaz was held accountable for allowing the Rodriguez DTO to use his
property to load and unload very large quantities of drugs and vast sums of
money that was acquired from the Rodriguez DTO’s operations.                        He also
admitted to accompanying other members of the Rodriguez DTO to shop for
tractor-trailers that would be used by the Rodriguez DTO. At sentencing, the
district court made the following finding as well:
            In order for this very large drug conspiracy to work it had to
      have the ability to transport drugs to the United States and to
      return cash to Mexico. . . .
            In order for the conspiracy to operate someone had to be
      trusted to allow a piece of property, a facility like this, to be used for
      the transportation of drugs and money. Had Mr. Diaz not been
      trusted to allow his property to be used in this way this could not
      have occurred as it did. I mean, they would not have let him be the
      person who’s property was used if they didn’t trust him, which gives

      2
        Section 3B1.2 of the Sentencing Guidelines provides:
      Based on the defendant’s role in the offense, decrease the offense level as
      follows:
              (a)    If the defendant was a minimal participant in any criminal
                     activity, decrease by 4 levels.
              (b)    If the defendant was a minor participant in any criminal activity,
                     decrease by 2 levels.
      In cases falling between (a) and (b), decrease by 3 levels.

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      me an indication of the nature of his conduct and his role in the
      offense.
      In light of this record evidence, Diaz’s role in the Rodriguez DTO, which
involved an intimate involvement with the conspiracy and a demonstrated level
of trust, was not peripheral to the advancement of the conspiracy. See, e.g.,
United States v. Giraldo-Lara, 919 F.2d 19, 22 (5th Cir. 1990) (the defendant
was not a minor participant where she “admitted that she had been involved on
a daily basis in acquiring, transporting, and distributing cocaine and money over
a period of about two years.”); United States v. Thomas, 932 F.2d 1085, 1092 (5th
Cir. 1991) (“Thomas’ daily role in the conspiracy” as “only a go-between, and not
a supervisor,” “while less than the other defendants, was not minor.”); see also
United States v. Mendoza-Oseguera, No. 00-40322, 2001 WL 1013207, at *8 (5th
Cir. Aug. 9, 2001) (The defendant “was given access to the stash house,
something given only to trusted members of a drug trafficking organization.
Further, as the only person in the house, he was in essence left to watch over a
large amount of cocaine,” over 220 kilograms of cocaine, which had a street value
of up to $4.4 million, “for a significant period of time,” over seven hours, “a role
surely not peripheral to the advancement of the organization.”). While Diaz
contends that “there was an element of coercion in [his] participation in” the
conspiracy—based on alleged threats by members of the Rodriguez DTO that
Diaz’s brother, who allegedly was indebted to the Rodriguez DTO, would be
killed if Diaz did not allow the Rodriguez DTO to use his property—he does not
argue that he would not have participated absent that alleged coercion.
      Therefore, the district court did not clearly err in not granting Diaz’s
request for a downward adjustment under § 3B1.2.




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III.    Sex offender registration condition
        The district court’s written judgment, but not the court’s oral
pronouncement of sentence, includes as a condition of supervised release that
Diaz register as a sex offender. The government concedes error in the district
court’s inclusion of sex offender registration as a condition of Diaz’s post-release
supervision. Because the sex offender registration requirement imposes “a more
burdensome requirement” on Diaz’s conditional release, and “the written
judgment conflicts with the sentence pronounced at sentencing, that
pronouncement controls.” United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.
2006); see also United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001);
United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000).
Therefore, we must remand to the district court to strike from its written
judgment of sentence the condition of supervised release that Diaz register as
a sex offender.


                                 CONCLUSION
        For the foregoing reasons, Diaz’s sentence is AFFIRMED in part and
VACATED in part.         This matter is REMANDED to conform the written
judgment of the district court consistent with this opinion.




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