                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-12-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2939




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                 No. 02-2939


                      UNITED STATES OF AMERICA


                                      v.

                                ADAM DIAZ,
                                                 Appellant



                On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                         District Court No. 99-cr-00404-8
                District Judge: Honorable Clarence C. Newcomer




                  Submitted Under Third Circuit LAR 34.1(a)
                              October 15, 2003

          Before: SLOVITER, ROTH AND CHERTOFF, Circuit Judges

                          (Filed: November 12, 2003)



                                  OPINION


CHERTOFF, Circuit Judge


                                      1
         On April 6, 2000, appellant Adam Diaz pled guilty to three counts of offenses

relating to a drug conspiracy. Before sentencing, Diaz fled and jumped bail. After being

apprehended, Diaz was sentenced to 135 months for conspiracy to distribute a controlled

substance, 48 months for each of two counts of use of a telephone to facilitate a drug

felony, and 120 months for his failure to appear, all terms to run concurrently.

         In this appeal, Diaz raises an ineffective assistance of counsel claim and also

argues that the District Court erred in determining his sentence. Diaz objects to his 120

month sentence for bail jumping, which he contends is substantially in excess of the term

which the Sentencing Guidelines would apply.

         For the reasons stated in this opinion, we will affirm the judgment of the District

Court.

                                               I.

         From the end of 1998 through the summer of 1999, Diaz was a New York drug

dealer who supplied drugs on a wholesale basis to Jose Fernandez, a leader and organizer

of a drug distribution organization that trafficked in heroin, cocaine, and crack in the

Philadelphia area. In July of 1999, a grand jury in the Eastern District of Pennsylvania

filed a 46-count indictment charging Diaz, Fernandez, and seven other individuals with

drug trafficking and other associated crimes. Diaz pled guilty to conspiracy to distribute

heroin, in violation of 21 U.S.C. § 846, and two counts of use of a telephone to facilitate

drug trafficking, in violation of 21 U.S.C. § 843(b). He was released on bond on


                                               2
October 7, 1999, but on the date of his sentencing, he fled. He was arrested on

November 11, 2001.

       Before sentencing, the Government, based on Diaz’s cooperation, filed a motion

permitting the District Court to depart from the otherwise applicable statutory mandatory

minimum sentence and from the Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

range, pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. After Diaz failed to

appear for sentencing, the Government filed a one-count information charging him with

bail jumping, in violation of 18 U.S.C. § 3146(a)(1). The Government also withdrew its

prior departure motions.

       The District Court imposed a sentence of 135 months for conspiracy to distribute

heroin, 48 months on each count of use of a telephone to facilitate drug trafficking, to

run concurrently, and five years supervised release, a $5,000 fine, and a $300 special

assessment. For failing to appear for sentencing, Diaz was sentenced to 120 months and

five years supervised release, both terms to run concurrently with the terms imposed for

the drug convictions. A $5,000 fine and $100 special assessment were also levied

against him on the bail jumping charge.

                                            II.

       Diaz argues that his former counsel was ineffective because his attorney (1) failed

to challenge the weight of the narcotics used to compute his base offense level; (2) failed

to move the District Court for departure based on extraordinary family circumstances; (3)


                                             3
failed to challenge the good faith basis of the Government’s withdrawal of its U.S.S.G. §

5K1.1 motion; and (4) failed to move the District Court for departure based on his

voluntary disclosure of offense conduct pursuant to U.S.S.G. § 5K2.16.

       Because they are often highly fact-bound, claims of ineffective assistance of

counsel are generally not considered on direct appeal. United States v. Haywood, 155

F.3d 674, 678 (3d Cir. 1998); see also Massaro v. United States, 123 S.Ct. 1690, 1694

(2003). Instead, “the proper avenue for pursuing such claims is through a collateral

proceeding in which the factual basis for the claim may be developed.” Haywood, 155

F.3d at 678 (quoting United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.

1989)). The preferable course is for defendants to raise their claims of ineffectiveness in

a motion pursuant to 28 U.S.C. § 2255 before the district court. Massaro, 123 S.Ct. at

1694; see United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002) (citing cases).

       This Court has recognized a “narrow exception” to this rule, allowing a

determination of ineffective assistance of counsel where the record is sufficient and an

evidentiary hearing to develop the facts is not needed. United States v. Headley, 923

F.2d 1079, 1083 (3d Cir. 1991). Here, the record is insufficient to determine whether or

not Diaz’s attorney provided ineffective counsel. In fact, the record from the plea

colloquy indicates that Diaz expressly admitted being satisfied with his lawyer’s

representation and advice.

       We will deny Diaz’s claim without prejudice to his right to raise the issue


                                             4
collaterally, pursuant to 28 U.S.C. § 2255, so that he may fully develop the record.

                                             III.

       Diaz objects to being sentenced to a 120 month sentence for bail jumping, which

he contends is substantially in excess of the Guidelines term that would apply had that

offense been sentenced separately from his drug offenses. He argues that he should not

have been sentenced to a term greater than the 21 months for the bail jumping offense.

Diaz points to U.S.S.G. § 2J1.6(a)(2) and (b)(2)(A), which covers failure to appear, and

argues these sections would set his offense level at Level 13, with a prison term range of

15 to 21 months.

       Diaz did not object to the sentence before the District Court, and, therefore,

review is for plain error. See United States v. Couch, 291 F.3d 251, 252-53 (3d Cir.

2002). The defendant has the burden of establishing plain error. United States v. Olano,

507 U.S. 725, 734 (1993). Under this standard, this Court must find that (1) an error was

committed, (2) the error was plain, i.e., clear or obvious, and (3) the error affected the

defendant's substantial rights. See United States v. Knight, 266 F.3d 203, 206 (3d Cir.

2001); see also United States v. Nappi, 243 F.3d 758, 762, 764 (3d Cir. 2001) (“In

addition, even where plain error exists, our discretionary authority to order correction is

to be guided by whether the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.”). Under the third prong, the Supreme Court has

stated that “in most cases it means that the error must have been prejudicial: It must have


                                              5
affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734.

          Under the Guidelines:

          [I]n the case of a conviction on both the underlying offense and the failure
          to appear, other than a case of failure to appear for service of sentence, the
          failure to appear is treated under § 3C1.1 (Obstructing or Impeding the
          Administration of Justice) as an obstruction of the underlying offense, and
          the failure to appear count and the count or counts for the underlying
          offense are grouped together under § 3D1.2(c).

          U.S.S.G. § 2J1.6, comment (n.3). Thus, when a defendant is convicted of both the

failure to appear and the underlying offense, the failure to appear is treated as an

obstruction of the underlying offense under U.S.S.G. § 3C1.1. Id. Here, the District

Court correctly applied §§ 3C1.1 and 3D1.2(c) in grouping Diaz’s underlying offenses

with his failure to appear for sentencing and enhancing his total offense level by two

levels.

          Section 5G1.2(b) of the Guidelines provides that the district court will impose the

“total punishment” as determined by the grouping provisions of the Guidelines and that

“the sentence imposed on each other count shall be the total punishment . . .”. Section

5G1.2(c) continues, “[i]f the sentence imposed on the count carrying the highest statutory

maximum is adequate to achieve the total punishment, then the sentences on all counts

shall run concurrently, except to the extent otherwise required by law.” U.S.S.G. §

5G1.2(c) (emphasis added).

          Based on Diaz’s total offense level of 32 and his Level II criminal history

category, the Guidelines state that his sentence range should be between 135 to 168

                                                 6
months. The District Court imposed a sentence of 135 months on Count One of the drug

conspiracy indictment, the charge carrying the highest statutory penalty. Therefore,

using the § 5G1.2 analysis, the District Court determined that the terms for the remaining

telephone offenses would run concurrently with the 135 month term on Count One. The

District Court then simply imposed the maximum term as a concurrent sentence on the

bail jumping count.

       Diaz’s total sentence is correct under the Guidelines. The District Court did

commit error in constructing the actual sentence imposed, but not the error of which Diaz

complains. Diaz was sentenced to a 120 month concurrent term for his failure to appear.

However, 18 U.S.C. § 3146(b)(2) of the United States Code, which details the penalty

for a failure to appear, provides that if a sentence is imposed for failing to appear, that

sentence must run consecutively to the sentence for any underlying offense.

       When a particular statutory penalty mandates consecutive imprisonment, the

actual imposition of a multiple count sentence within the proper Guideline range must

take account of that statutory mandate. See U.S.S.G. § 2J1.6, comment (n.3) (“Note that

18 U.S.C. § 3146(b)(2) does not require a sentence of imprisonment on a failure to

appear count, although if a sentence of imprisonment on the failure to appear count is

imposed, the statute requires that the sentence be imposed to run consecutively to any

other sentence of imprisonment.”)

       Thus, because 18 U.S.C. § 3146(b)(2) requires that any sentence imposed for


                                              7
failure to appear be imposed consecutively to any other sentence, a district court must

separate and make consecutive that portion of the total Guidelines-mandated sentence

that corresponds to the failure to appear. Comment 3 to § 2J1.6 suggests, “[f]or example,

if the court determines a ‘total punishment’ of 36 months is appropriate, a sentence of 30

months for the underlying offense plus a consecutive six months sentence for the failure

to appear count would satisfy these requirements.” See United States v. Pardo, 25 F.3d

1187, 1194 (3d Cir. 1994).

       Using this model, the District Court could have properly achieved the result

obtained here by providing that Diaz’s “total punishment” was 135 months, allotting 120

months for the underlying drug offense (which would be the statutory minimum of 10

years for that offense) and 15 months for the failure to appear.

       Because the District Court issued the 120 month sentence to run concurrently with

the 135 month sentence, the 120 month term for failure to appear has no effect on Diaz’s

overall sentence. The Government is the party “aggrieved” by the District Court’s

technical failure to impose a consecutive sentence for failure to appear, but it has not

challenged the judgment allowing Diaz’s sentence to run concurrently. Otherwise, the

District Court’s sentencing mistake amounts to harmless error.

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. Accordingly, the judgment of the District Court

will be affirmed.


                                             8
TO THE CLERK:

    Please file the foregoing opinion.




                                /s/ Michael Chertoff, Circuit Judge
                                Circuit Judge




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