                Case: 15-11185    Date Filed: 09/12/2016   Page: 1 of 7


                                                              [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-11185
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:14-cr-20345-FAM-1



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

versus

WILLIAM DIAZ,

                                                   Defendant - Appellant.

                            ________________________

                    Appeals from the United States District Court
                        for the Southern District of Florida
                           ________________________

                                 (September 12, 2016)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

         William Diaz appeals the 87-month prison sentence he received on March 4,

2015, on a plea of guilty to conspiracy to commit bank fraud and wire fraud, in
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violation of 18 U.S.C. § 1349. Diaz participated in a fraudulent real estate

transaction scheme in which he played a role, to varying degrees, in defrauding

mortgage companies in order to obtain loans for eight residential properties in

South Florida. We find no merit in Diaz’s appeal and accordingly affirm the

District Court’s judgment.

       Diaz’s brief raises four issues. The first is whether the District Judge who

presided over the case erred in failing to disclose to the parties prior to sentencing

that an individual unknown to the Judge came up to him at an event at the Miami

Beach Convention Center on December 7, 2014, three months prior to Diaz’s

sentencing, and said that “he had a friend that had a case [unidentified] in front of

me.” Unbeknownst to the Judge, the individual was an employee of Diaz. Post

sentencing, Diaz revealed the Convention Center contact in two motions: a motion

to vacate sentence pursuant to Federal Rule of Criminal Procedure 35 and a motion

to recuse. The Court recused, and in accordance with the Local Rules of the

Southern District of Florida, the Clerk assigned the Rule 35 motion to a different

district judge.

       Diaz’s Notice of Appeal appeals the Rule 35 disposition and his sentence.

The Rule 35 motion remains undisposed of in the District Court, so it is not before

us.1 What is before this Court is Diaz’s appeal of his sentence. We have


       1
           It is problematic whether Rule 35 can provide the service Diaz is seeking.
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jurisdiction to hear it pursuant to 18 U.S.C. § 3742(a). Diaz’s brief presents three

issues concerning his sentence: (1) whether the District Court erred under Federal

Rule of Criminal Procedure 32 in failing to ensure prior to the imposition of

sentence that he and his attorney had reviewed the presentence report (“PSI”); (2)

whether the Court failed to comply with Rule 32 in failing to state on the record

why it was denying his motion for a downward departure from the Guidelines

sentence range; and (3) whether the Court erred in calculating the loss attributable

to his conduct.

                                                I.

       Federal Rule of Criminal Procedure 32 provides, in relevant part, that at

sentencing, the district court “must—for any disputed portion of the [PSI] or other

controverted matter—rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Diaz did not



       The authority of a district court to modify an imprisonment sentence is narrowly
       limited by statute. Specifically, [18 U.S.C.] § 3582(c), provides that a court may
       not modify an imprisonment sentence expect in these three circumstances: (1)
       where the Bureau of Prisons has filed a motion and [certain other conditions are
       met]; (2) where another statute or [Rule] 35 expressly permits a sentence
       modification . . . or (3) where a defendant has been sentenced to a term of
       imprisonment based on a sentencing range that was subsequently lowered by the
       [Sentencing] Commission and certain other requirements are met. . . . absent other
       express statutory authority, modification of an imprisonment sentence can only be
       done pursuant to Rule 35.

United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010) (citing 18 U.S.C. § 3582(c)).
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object to the District Court’s failure to comply with the rule following the

imposition of sentence, when the Court elicited the parties’ objections, so we

review the issue for plain error. United States v. Peters, 403 F.3d 1263, 1270 (11th

Cir. 2005). We may only correct an error not raised by the defendant to the

district court if there is: (1) error, (2) that is plain, (3) that affects substantial

rights, and (4) that seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. at 1271. Unless the language of a statute specifically

resolves the issue, “there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it.” United States v. Chau, 426

F.3d 1318, 1322 (11th Cir. 2005) (quotation marks and citation omitted).

       The record does not tell us in so many words that Diaz and his attorney

discussed the PSI prior to sentencing. But they must have, because Diaz’s attorney

moved the District Court at sentencing for a downward departure from the

Guidelines sentence range. To make the motion, counsel must have read the PSI

and explained to Diaz why a downward departure was required to avoid a sentence

within the Guidelines range. What counsel’s, and Diaz’s, behavior communicated

to the Court was that they were well acquainted with the PSI. Because Diaz points

us to no controlling authority that would have informed the District Court that Diaz

and his lawyer had not discussed the PSI and that it should intervene, we find no

plain error.


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                                                II.

       Diaz claims that the District Court failed to comply with Rule 32 by not

explicitly ruling on his motion for a downward departure which was based on the

proposition that his criminal history category II overrepresented his criminal

history. 2 Because Diaz did not raise this argument to the District Court when the

Court asked if Diaz had any objection to the imposed sentence, we review his

claim for plain error.

       While it is undisputed that the District Court did not expressly state that it

had ruled on Diaz’s motion for a downward departure, the record is clear that the

Court did implicitly rule on that motion. The PSI established an advisory guideline

range of 87-108 months’ imprisonment based on offense level 28 in criminal

history category II. The advisory range was 78-97 months with a criminal history

category I. The Court, in sentencing Diaz to 87 months, provided explicitly that

while “there is an increase by criminal history category of [II] . . . I do note that the

87 months still falls within the guideline range for a criminal history category [I].”

Thus, the record supports unambiguously that the Court did in fact rule on the

matter. The Court did not err, much less commit plain error.




       2
         The PSI stated that Diaz had two separate convictions for Driving Under the Influence
and three separate boating violations, all of which established a criminal history category of II.
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                                             III.

       Diaz argues that the District Court erred in its calculation of loss attributed

to his conduct, thereby imposing a higher enhancement under the Sentencing

Guidelines than his conduct merited. In accordance with the recommendation of

the PSI, the District Court imposed a 20-level enhancement for fraud based on the

loss amount of $7,268,037. Diaz argues that the Court erred in its loss calculation

by incorrectly attributing to him loss from a fraudulent real estate transaction that

Diaz claims was caused unilaterally by one of his co-conspirators. Specifically,

Diaz claims that although he participated in defrauding a mortgage lender in the

transaction, he believed that the co-conspirator would use the proceeds of the

fraudulently-obtained loan to pay back an earlier mortgage, thereby lessening the

amount of loss. Instead, the co-conspirator did not pay back the mortgage, and the

Court attributed that loss to Diaz. Diaz concludes that if the Court calculated loss

without including that amount, it would have imposed an 18-level enhancement

rather than a 20-level enhancement.3

       We review a district court’s loss calculation for clear error. United States v.

Campbell, 765 F.3d 1291, 1301-02 (11th Cir. 2014). No clear error exists in which

the record supports the district court’s findings. United States v. Rodriguez, 751
       3
         The 2014 Sentencing Guidelines, applicable when Diaz was sentenced, provided for a
20-level enhancement for fraud offenses where the loss amount is more than $7,000,000 but less
than $20,000,000. U.S.S.G. § 2B.1.1(b)(1)(K)-(L) (2014). It provides for an 18-level
enhancement where the loss amount is more than $2,500,000 but less than $7,000,000. Id.
§ 2B.1.1(b)(1)(J)-(K) (2014).
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F.3d 1244, 1255 (11th Cir. 2014). In attributing to Diaz loss caused by the co-

conspirator, the Court reasoned that even if Diaz did not “actually think the loss

was going to be the sum that it was,” the loss fell “within the gamut of intended

loss.” A court “may hold all participants in a conspiracy responsible for the losses

resulting from the reasonably foreseeable acts of co-conspirators in furtherance of

the conspiracy.” United States v. Dabbs, 134 F.3d 1071, 1082 (11th Cir. 1998).

Based on the undisputed facts in the record that Diaz was directly involved in the

fraudulent transaction in question and that Diaz knew that the co-conspirator had

never paid off any mortgages during the entire course of the conspiracy—a

conspiracy involving seven other fraudulent transactions—it was not clear error for

the District Court to conclude that Diaz could have reasonably foreseen the loss as

a result of his fraudulent actions. 4

       AFFIRMED.




       4
          Diaz contends also that the District Court erred in its loss calculation by relying on both
the actual loss and the intended loss of his fraudulent conduct, and by relying on the unilateral
loss figures provided by the victim banks, thereby not requiring the government to meet its
burden of proving loss. The Guidelines define “loss” as the greater of the actual loss or intended
loss. U.S.S.G. § 2B1.1 cmt. n.3(A). The record reveals that the District Court relied solely on
the actual loss to the victim banks as a result of Diaz’s fraudulent conduct. Further, other than
his co-conspirator’s loss attributed to Diaz that he challenged above, Diaz did not object to the
loss figures reported in the PSI. While the government has the burden of establishing disputed
fact by a preponderance of the evidence, Diaz did not dispute the loss figures. Accordingly, the
District Court did not clearly err in relying on those figures. See United States v. Polar, 369 F.3d
1248, 1255 (11th Cir. 2004) (“The district court’s factual findings for purposes of sentencing
may be based on . . . undisputed statements in the PSI.”).
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