United States v. Diaz

Citation: 170 F. App'x 884Docket: No. 02-20702

Court: Court of Appeals for the Fifth Circuit; March 14, 2006; Federal Appellate Court

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The court is reviewing the case of Defendant-Appellant Jermaine Carlos Diaz following a remand from the Supreme Court, specifically in light of the decision in United States v. Booker. The court finds that Booker's ruling does not alter Diaz's sentence. In 2001, a federal grand jury indicted Diaz on multiple charges related to sex trafficking, with the jury acquitting him on four counts, including enticement and aiding and abetting. He was convicted on two counts: transportation of a minor for prostitution and aiding and abetting such transportation.

The Presentencing Report (PSR) calculated Diaz’s offense level as 27 based on various enhancements, including the use of physical force and the victim's age. Diaz objected to these enhancements and argued for a reduction due to acceptance of responsibility. The district court overruled his objections but granted some reductions, resulting in a final offense level of 22 and a sentence of 51 months in prison, along with supervised release and a special assessment.

Although Diaz did not challenge his sentence on appeal, he later raised objections regarding the sentencing enhancements in an amended petition to the Supreme Court, citing violations of his Sixth Amendment rights as established in Blakely v. Washington. The Supreme Court granted his petition and remanded the case for further consideration. Ultimately, the court reaffirms the original decision regarding Diaz's sentence.

The standard of review for Diaz's Booker claim is contested by the parties. Diaz argues for a de novo review based on objections he raised regarding the district court's findings on the use of force, victim age, and obstruction of justice. The government counters that plain error review applies since the Booker issue wasn't raised earlier. The court finds Diaz abandoned his Booker claim by not raising it during his first appeal, but questions whether plain error or extraordinary circumstances review should apply. Assuming plain error review is appropriate, the court outlines that remand for resentencing requires (1) error, (2) that is plain, and (3) that affects substantial rights. The court identifies that the district court's enhancement of Diaz’s sentence under mandatory Guidelines constituted plain error. However, determining if this error affected substantial rights is Diaz's burden, which requires him to demonstrate that the outcome of the district court proceedings would have likely changed under an advisory Guidelines scheme.

Diaz fails to provide evidence that indicates the sentencing judge would have imposed a different sentence under such a scheme. He claims the Booker error is structural or presumptively prejudicial and asserts he received a sentence exceeding the maximum based on jury-found facts. However, the court finds both arguments unpersuasive; the first contradicts existing precedents, and the second does not provide evidence of a significantly different outcome. Diaz's challenge essentially disputes the established standard of review from a prior case, Mares, which remains binding unless overturned by the Supreme Court or an en banc decision. Consequently, the court affirms the district court's sentence.

Diaz's sentence is affirmed as he fails to meet the criteria for plain error review or extraordinary circumstances review. The court has ruled that this opinion should remain unpublished and not serve as precedent, except in specific cases outlined in 5th Cir. R. 47.5.4. Diaz objected to the enhancement of his sentence based on the victim's age, claiming it was inappropriate since he was older than the victim, who was under 16 at the time of the crime. Although Diaz was released from prison on November 26, 2004, he is still under supervised release, making his appeal relevant. Even if Diaz had not abandoned his Booker claim, he would only qualify for review under the harmless error standard, rather than de novo review. Relevant case law supports these conclusions, referencing various precedents within the Fifth Circuit and the Supreme Court.