                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4370




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 04-4370

                           UNITED STATES OF AMERICA


                                                 v.

                          OSCAR REYNALDO DIAZ-CRUZ,
                                      Appellant

                      Appeal from the United States District Court
                             for the District of New Jersey
                               (Crim. No. 03-cr-00657)
                         District Judge: Hon. Jose L. Linares

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                              Friday, September 16, 2005

                          Before: ROTH, McKEE and FISHER,
                                    Circuit Judges

                           (Opinion filed:   October 14, 2005)

                                        OPINION

McKEE, Circuit Judge.

       Oscar Reynaldo Diaz-Cruz appeals the sentence that was imposed following

acceptance of his guilty plea. For the reason that follows, we will vacate the sentence and

remand for resentencing pursuant to United States v. Booker,     U.S.   , 125 S.Ct. 738

(2005). See United States v. Davis, 407 F.3d 162 (3d Cir. 2005).



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                                              I.

       Because we write primarily for the parties, we recite only the facts and procedural

history that are necessary to the disposition of this appeal. Pursuant to a plea agreement,

Diaz-Cruz pleaded guilty to a one-count indictment charging him with illegal reentry in

violation of 8 U.S.C. § 1326(a) and (b)(2). The plea agreement stipulated that the

applicable Sentencing Guideline was U.S.S.G. § 2L1.1, which carried a base offense level

of 8, and that Diaz-Cruz had been convicted of an offense that qualified as an aggravated

felony. That resulted in a sixteen-level increase in the offense level. The parties also

agreed that if Diaz-Cruz’s acceptance of responsibility continued through sentencing, he

would be eligible to receive a three-level downward adjustment. Diaz-Cruz agreed to a

limited waiver of appeal that barred any challenge to the “determination or imposition of

the offense level, if the total offense level determined by the court is equal to or less than

21.” App. 7-72, ¶ 5.

       The guilty plea was accepted by the district court on April 19, 2004. However,

after the plea was entered, but before the Presentence Investigation Report (“PSR”) was

prepared, the Supreme Court issued its decision in Blakely v. Washington,        U.S.   , 124

S.Ct. 2531 (2005). At sentencing, Diaz-Cruz argued that Blakely’s reasoning applied to

the Sentencing Guidelines. More specifically, he argued that Blakely’s rationale

precluded the assessment of two points pursuant to U.S.S.G. § 4A1.1(e) (applicable when

a defendant has committed the instant offense within two years of his release from



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custody). The district court disagreed with Diaz-Cruz based on his admissions at the plea

colloquy, and Diaz-Cruz is not pursuing that argument on appeal. The district court

imposed a term of imprisonment of 87 months, which was within the guidelines range of

77 to 96 months.

       In doing so, the court noted that, even if it had refused to apply the two-point

assessment, which would have resulted in a range of 70 to 87 months, it “would have

probably” imposed a sentence at the top of that lower range. App. 24:19-22. The district

court “applied the Guidelines and all relevant enhancements in this case.” App. 12.

       On appeal, Diaz-Cruz does not contest the district court’s assessment of the two

points. Rather, he argues that the district court failed to sentence him in accordance with

the principles enunciated by the Supreme Court in United States v. Booker,      U.S.      , 125

S.Ct. 738 (2005). Under Booker, the Sentencing Guidelines are “effectively advisory.”

Id. at 757. Accordingly, district courts will now consider the applicable advisory

Guidelines in addition to the factors set forth in 18 U.S.C. § 3553(a).

       Although Booker was decided after Diaz-Cruz was sentenced, Booker is applicable

to all cases on direct review. 125 S.Ct. at 769. Accordingly, pursuant to our decision in

United States v. Davis, 407 F.3d 162 (3d Cir. 2005), we will vacate the sentence and

remand for resentencing pursuant to Booker.




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