United States v. Evans Santos Diaz ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2157
UNITED STATES OF AMERICA
v.
EVANS SAMUEL SANTOS DIAZ,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No.: 3-16-cr-00085-006)
District Judge: Honorable Malachy E. Mannion
Argued November 12, 2019
(Opinion Filed: February 25, 2020)
Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges
Sean A. Camoni (Argued)
Evan J. Gotlob
Office of the United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
Jacob Schuman (Argued)
Brett G. Sweitzer
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
OPINION
RENDELL, Circuit Judge:
Appellant Evans Santos Diaz challenges his conviction
for conspiracy to distribute and possess with intent to distribute
heroin and cocaine, raising three distinct objections. While we
are concerned that the District Court may not have been as
2
attentive to Diaz’s complaints regarding his counsel as it
should have been, and concerned as well that certain testimony
by a government witness violated Rule 701, we will
nonetheless deny his request for a new trial. We also conclude
that the District Court did not clearly err when it attributed
more than 20 grams of heroin to Diaz at sentencing.
Accordingly, we will affirm.
I. Background
Evans Santos Diaz was charged, along with five co-
defendants, with conspiracy to distribute and possess with
intent to distribute drugs. One of the co-defendants, Jeffrey
Guzman, orchestrated the conspiracy. He distributed to
co-defendants Richard Chalmers, Louis Bracey, Landy Then,
and Diaz, and periodically involved his mother, co-defendant
Magdalena Alvarez, as well. All five of Diaz’s co-defendants
pled guilty, but Diaz chose to exercise his right to a trial.
A. Pretrial Complaints about Counsel
After being indicted, Diaz represented that he could not
afford counsel, and a magistrate judge assigned Criminal
Justice Act (CJA) counsel, Deborah Albert-Heise to represent
him. A few months later, however, Ms. Albert-Heise accepted
a position as an assistant district attorney and withdrew. The
District Court then appointed Joseph O’Brien on July 13, 2016.
Dissatisfied with O’Brien, Diaz requested new counsel
in an August letter to the Clerk of Court. Diaz stated that
O’Brien pressured him to plead guilty, did not accept Diaz’s
advice on submitting pretrial motions, and failed to turn over
discovery to him. In response to Diaz’s pro se motion, the
3
District Court promptly held a hearing to inquire into the
problems with the representation. At the hearing, the Court
asked both O’Brien and Diaz about the issues and attempted to
explain to Diaz that O’Brien was an excellent lawyer. Diaz
still insisted that he wanted the Court to appoint new counsel,
and the District Court appointed Joseph Kalinowski on August
29, 2016.
On December 5, 2016, Diaz wrote to the District Court
to request certain documents and informed the Court that he
had not received anything from counsel. In response, the Court
issued an order acknowledging receipt of Diaz’s letter and
directing the Clerk to forward a copy of the letter to counsel
for a response. The record does not reflect any response from
counsel.
On February 7, 2017, Diaz again wrote to the Court to
request assistance obtaining discovery and advised that he was
concerned about Kalinowski’s failure to communicate with
him. In response to this letter, on February 14, 2017, the
District Court ordered Kalinowski to file a response to Diaz by
February 21. Kalinowski never complied with that order.
On February 22, following Kalinowski’s failure to
comply with the February 21 deadline, Diaz requested new
counsel. In a pro se letter, he wrote that Kalinowski “fails to
answer my letters and requests for discovery materials. . . . I
am requesting that you consider appointing me new counsel.”
App. at 94. The Court did not then seek any additional
information from Kalinowski or Diaz, nor did it inquire further
or schedule any hearing to address the request to replace
Kalinowski.
4
One month after the request for new counsel, on March
24, Kalinowski filed a motion for continuance in which he
represented:
The Defendant has submitted a letter to the Court
which is being considered as a request for new
counsel. After a meeting between counsel and
the Defendant on March 23, 2017, all issues
between counsel and the Defendant have been
resolved and the Defendant wishes to continue
with counsel’s representation.
App. at 102–03. The District Court granted the continuance
without commenting on Diaz’s request for new counsel. Diaz
and Kalinowski then appeared together on April 7 for a pretrial
conference. At the conference, neither Diaz nor Kalinowski
raised any issue related to the request or the representation.
Ten days after the pretrial conference, on April 17, Diaz
again wrote to the District Court complaining of Kalinowski’s
failure to adequately represent him or to provide discovery. In
the letter, he reminded the Court that Kalinowski never
responded to the Court’s February 14 order and again stated
that Kalinowski neither responded to Diaz’s letters nor visited
him. On June 29, Diaz wrote to the Court complaining of
Kalinowski’s failure to respond, repeated motions for
continuance, and failure to provide discovery. Diaz did not,
however, renew his request for new counsel either before or at
trial. On August 16, the case proceeded to trial with
Kalinowski representing Diaz.
5
B. Officer Gula’s Testimony at Trial
At trial, the government introduced evidence of Jeffrey
Guzman’s conspiracy and Diaz’s role in it, including the
testimony of Drug Enforcement Administration (DEA) Task
Force Officer Jason Gula. The government asked Officer Gula
about the members of the conspiracy and requested that he
“briefly describe in summary how each of these individuals
were involved.” App. at 254. Gula testified that Guzman was
the head of the operation; that Landy Then, Richard Chalmers,
and Louis Bracey bought drugs from Guzman and sold them to
their own customers; and that Guzman’s mother helped move
and deliver the drugs. The government then asked, “how about
the Defendant, Evans Samuel Santos Diaz, how is he involved
in this case?” App. at 256. Gula responded, “Evans Santos
Diaz through the investigation we identified as being basically
a subordinate of Jeffrey Guzman, working at the direction of
Jeffrey Guzman, bagging up drugs for Jeffrey Guzman,
distributing on behalf of Jeffrey Guzman, and also distributing
to his own customers, which we learned through the
investigation.” Id.
Gula also testified about intercepted communications
between Diaz and others and between others talking about
Diaz. He repeatedly testified as to the meaning and
significance of those communications. After the testimony of
several other witnesses, including co-defendants Guzman and
Alvarez, and the introduction of text messages and recorded
phone calls, the jury convicted Diaz of conspiring to distribute
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and possess with intent to distribute heroin, cocaine, and
crack. 1
C. Sentencing
According to the presentence investigation report
(PSR), Diaz’s offense involved 30 grams of heroin and 1 gram
of cocaine. This resulted in a base offense level of 16.
U.S.S.G. § 3C1.1. Diaz objected to the drug quantity
determination, arguing that the evidence only supported a
finding of 15 grams. The District Court considered the
arguments of Diaz and the government. Based on the text
messages and intercepted communications related to Diaz
introduced at trial and on the fact that all of Diaz’s co-
conspirators were responsible for much greater amounts, the
Court concluded that 30 grams was an appropriate amount to
attribute to Diaz. After adopting the PSR’s conclusion that the
drug quantity made the proper base offense level 16, with an
enhancement for obstruction of justice bringing the adjusted
offense level to 18, the District Court sentenced Diaz to 33
months imprisonment and three years of supervised release.
II. Discussion
Diaz raises three issues on appeal: (1) the District
Court’s failure to inquire into his motion for appointment of
new counsel, (2) the improper admission of Officer Gula’s
testimony, and (3) the Court’s attribution of more than 20
grams of heroin to Diaz at sentencing. We address each in turn.
1
The government amended the count to reflect only heroin and
cocaine.
7
A. The District Court’s Failure to Inquire
We review for abuse of discretion a district court’s
decision not to permit substitution of counsel. See United
States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995).
Generally, “[w]hen a defendant requests a substitution of
counsel . . . the district court must engage in at least some
inquiry as to the reason for the defendant’s dissatisfaction with
his existing attorney.” United States v. Welty, 674 F.2d 185,
187 (3d Cir. 1982). In the course of the inquiry, the defendant
must demonstrate good cause for appointment of new counsel,
“such as a conflict of interest, a complete breakdown in
communication, or an irreconcilable conflict with his
attorney.” Id. at 188. Although the requisite inquiry may
consider a variety of sources and need not include a one-on-
one colloquy with the defendant, we have noted the importance
of allowing the defendant, as well as counsel, the opportunity
to be heard on the matter. See United States v. Hodge, 870 F.3d
184, 202 (3d Cir. 2017).
Under our precedent concerning district courts’
obligation to inquire when a defendant lodges complaints
regarding counsel’s representation, the facts here present a
close case. Initially, the District Court appears to have made
little or no effort to probe Diaz’s request that Kalinowski be
replaced. Typically, if a district court fails to make “any on-
the-record inquiry as to the reasons for the defendant’s
dissatisfaction with his existing attorney,” it abuses its
discretion. McMahon v. Fulcomer, 821 F.2d 934, 944 (3d Cir.
1987); Goldberg, 67 F.3d at 1098; Welty, 674 F.2d at 190. We
have not made that obligation dependent upon the number of
times a defendant has made this request. We have specifically
instructed that a Court must “engage in at least some inquiry,”
8
“[e]ven when the trial judge suspects that the defendant’s
contentions are disingenuous, and motives impure.”
McMahon, 821 F.2d at 942 (citation omitted). The District
Court’s inaction would thus normally raise serious questions,
particularly given that Diaz complained not only about strategy
but also about a total lack of communication. But this case
presents a unique circumstance. Soon after Diaz made his
request, the District Court had good reason to believe
Kalinowski was communicating with Diaz such that Diaz’s
request was withdrawn or moot. On these facts—particularly
given the deference owed the District Court under the abuse of
discretion standard—we cannot conclude that the Court’s lack
of inquiry constituted an abuse of discretion.
It is clear that the Court was aware of Diaz’s concerns,
and it took some action to remedy the situation when it ordered
Kalinowski to file a response to Diaz’s December 5 letter. The
District Court did not follow up on this order or insist that
Kalinowski respond to Diaz’s complaints, nor did it schedule a
hearing to address the request, as it had when Diaz had
previously sought to replace O’Brien as counsel. 2 However
2
Diaz contends that, in not quickly holding a hearing as it had
when Diaz sought to replace O’Brien, the District Court was
enforcing an unspoken “one-substitution rule.” See
Appellant’s Br. at 35. We are not persuaded that the Court had
such a policy in place. It goes without saying that there is no
numerical limit on the right to counsel. To say that, after
having had more than one lawyer, a defendant complaining
about counsel’s representation must automatically represent
himself would impose an arbitrary limit on the Sixth
Amendment. Unless a defendant forfeits the right to counsel
due to “extremely serious misconduct” or knowingly,
9
undesirable the Court’s initial inaction may have been, within
a month, the Court received information that Kalinowski was
communicating with Diaz, and Diaz no longer sought new
counsel. Thus, the Court’s intervention was unnecessary.
The information the Court received made clear that
Kalinowski was paying attention to Diaz’s requests. When, on
March 24, 2017, Kalinowski, in a motion for continuance,
wrote that he had had a meeting with Diaz the day before and
all issues between them “ha[d] been resolved and … [Diaz]
wishe[d] to continue with counsel’s representation,” App. at
102–03, the District Court did not have any basis to question
that statement. Thereafter, Diaz appeared alongside
Kalinowski at a pretrial conference on April 7 and did not raise
any further complaints about the representation. Although
Diaz renewed his complaints about Kalinowski in April and
June letters to the Court, he stopped short of asking for
counsel’s replacement. Further, Diaz continued to appear
alongside Kalinowski throughout the trial and sentencing
without complaint. Despite numerous opportunities to address
the court, Diaz never again requested new counsel, nor did he
ever complain of Kalinowski’s effectiveness at trial. From
these facts, it appears that Kalinowski and Diaz had, indeed,
resolved their issues and were working together effectively.
Therefore, although ideally the District Court would have
inquired into Diaz’s various complaints, we cannot conclude
voluntarily, and intelligently waives that right, his Sixth
Amendment right to effective assistance of counsel persists.
See United States v. Leggett, 162 F.3d 237, 249–50 (3d Cir.
1998) (citation omitted).
10
from this record that the Court’s failure to do so amounted to
an abuse of discretion. 3
B. Officer Gula’s Testimony
Diaz next challenges the testimony of DEA Task Force
Officer Gula. Because defense counsel did not object to this
testimony at trial, we will reverse only for plain error. United
States v. Jackson, 849 F.3d 540, 544 (3d Cir. 2017). Diaz
contends that the District Court plainly erred by allowing, in
violation of Federal Rule of Evidence 701, Gula’s testimony
(1) drawing the legal conclusion that Diaz was a conspirator
who bagged and distributed drugs and (2) interpreting non-
coded conversations in which Diaz was involved.
Federal Rule of Evidence 701 permits certain lay
opinion testimony that “has the effect of describing something
that the jurors could not otherwise experience for themselves”
to offer the trier of fact a more “accurate reproduction of the
event.” Jackson, 849 F.3d at 553 (quoting United States v.
Fulton, 837 F.3d 281, 291 (3d Cir. 2016)). To achieve this
purpose, Rule 701 requires that lay opinion testimony be
(a) “rationally based on the witness’s perception,” (b) helpful,
3
Our conclusion that the Court did not abuse its discretion
should not be confused with an endorsement of its approach to
the situation. As we have noted, the District Court did not
follow up on its order that Kalinowski respond, nor did it seek
an explanation from Kalinowski about his lack of
responsiveness or bring Diaz and Kalinowski into court to ask
about the apparent breakdown in communication. Simple steps
such as these would have been appropriate and advisable.
11
and (c) “not based on scientific, technical, or other specialized
knowledge.” Fed. R. Evid. 701. The proponent of the lay
opinion testimony bears the burden of demonstrating an
adequate foundation. Fulton, 837 F.3d at 291. Here, Diaz
argues that Gula’s testimony failed to satisfy the foundation
requirements of both 701(a) and 701(b) when he testified as to
Diaz’s role in the conspiracy and interpreted clear
conversations. We need not consider the 701(a) objections
because these aspects of Gula’s testimony clearly violated
701(b).
i. Conclusory Testimony
We turn first to Gula’s testimony about Diaz’s role in
the conspiracy. Diaz contends that, when Gula summarized
Diaz’s role, he improperly and unhelpfully offered his opinion
on the ultimate issue at trial: Diaz’s involvement in the
conspiracy. We agree.
The District Court allowed Gula to opine that Diaz
worked as “a subordinate of Jeffrey Guzman, working at the
direction of Jeffrey Guzman” to bag and distribute drugs. App.
at 256. This conclusory statement was obviously unhelpful,
and the Court should have excluded it under 701(b). The
“purpose of the foundation requirements” of Rule 701 “is to
ensure that such testimony does not . . . usurp the fact-finding
function of the jury.” Fulton, 837 F.3d at 291–92 (citation
omitted). Therefore, the helpfulness requirement in 701(b)
requires courts to exclude “testimony where the witness is no
better suited than the jury to make the judgment at issue.”
Jackson, 849 F.3d at 554 (quoting Fulton, 837 F.3d at 293).
Here, the jury was perfectly well suited to determine, based on
the evidence before them, whether Diaz worked as a part of
Guzman’s conspiracy. Indeed, that was the primary question
12
facing them. Gula’s comments articulated precisely the
conclusion the government asked the jury to infer from the
evidence presented at trial, removing the jury’s need to
personally review the evidence. See United States v. Grinage,
390 F.3d 746, 750 (2d Cir. 2004). Rather than offering insight
the jury could not itself have gleaned from the evidence, Gula’s
testimony served to provide the conclusion the government
wanted the jury to reach.
Such conclusory testimony undermines the goal of Rule
701 “to exclude lay opinion testimony that ‘amounts to little
more than choosing up sides, or that merely tells the jury what
result to reach.’” Fulton, 837 F.3d at 291 (quoting United
States v. Stadtmauer, 620 F.3d 238, 262 (3d Cir. 2010)). That
is just what Gula did when he told the jury Diaz worked as
Guzman’s subordinate, bagging and distributing drugs. By
admitting such testimony, the District Court allowed precisely
the sort of testimony Rule 701 is designed to exclude.
ii. Testimony about Non-Coded Statements
Diaz next challenges Gula’s testimony interpreting a
number of non-coded statements. We find this testimony quite
problematic and have no trouble concluding that the District
Court should have excluded it.
We have repeatedly held that a lay witness may not
interpret clear statements understandable to a jury without
violating Rule 701(b)’s helpfulness requirement. Jackson, 849
F.3d at 554; United States v. Dicker, 853 F.2d 1103, 1109 (3d
Cir. 1988). Certainly, lay witnesses may offer opinions about
the meaning of recorded conversations if the witness’s
opinions are helpful in determining a relevant fact and, to an
13
“uninitiated listener,” the speaker “speaks as if he were using
code.” United States v. De Peri, 778 F.2d 963, 977 (3d Cir.
1985). But even then, the trial court bears the responsibility of
“vigorously polic[ing] the government’s examination” to
ensure the witness is “not asked to interpret relatively clear
statements.” Id. at 978; Jackson, 849 F.3d at 553–54.
Such policing is necessary because, when officers
interpret clear, non-coded statements, they are “no better suited
than the jury to make the judgment at issue,” and the testimony
is therefore unhelpful. Jackson, 849 F.3d at 554 (quoting
Fulton, 837 F.3d at 293). In Jackson, we found lay testimony
about a recorded call unhelpful under Rule 701(b) because the
call contained “seemingly no mention of code words,”
although the meaning of the call was unclear. Id. Vagueness
or lack of clarity alone does not render a conversation coded so
as to permit lay opinion testimony about its meaning. If a jury
could independently understand the meaning based on the
conversation itself and other evidence in the case, Rule
701(b)’s helpfulness requirement bars any additional lay
witness “interpretation.”
Here, the District Court permitted Gula to opine,
unhelpfully, about his understanding of numerous calls the jury
could have interpreted for themselves, sometimes actually
misinterpreting them but giving the impression that his
interpretation was authoritative. Gula interpreted a call from
Diaz to Guzman in which Diaz stated, “[y]o you know this bags
are different sizes right?” App. at 470. Gula stated that, “based
on the investigation, my training and experience, he’s talking
about the bags he was utilizing to bag up narcotics at the
direction of Jeffrey Guzman, and he’s telling Guzman that the
bags are all different sizes.” App. at 261. Gula also interpreted
14
a text from Louis Bracey to Diaz that read, “u got me waitin,”
App. at 732, to mean “Louis Bracey is waiting on Gito for a
quantity of narcotics.” App. at 287. These statements
contained no coded terminology requiring interpretation. Gula
simply repeated the language used in the conversations and
then added his own conclusion that the statements referred to
narcotics activity. We criticized this type of testimony in
Jackson, where we noted that the translation of “you can go
ahead and send him” to mean “it is okay now to send [a co-
conspirator] to purchase cocaine in Dallas” presented a
particularly egregious violation of 701(b). 849 F.3d at 554.
Gula repeatedly offered such egregious testimony, advising the
jury that clear statements described narcotics activity.
The government contends that many of the
communications did include code words. For instance, the
government points to conversations using the term
“barbershop,” which it argues served as a code word for a
meeting place for drug purchases. But “barbershop” was not a
code word. It referred to an actual barbershop—albeit one
where the evidence showed that the co-conspirators also
distributed drugs. Nonetheless, Gula purported to “interpret”
a text message from Diaz, in which he said, “[c]ome on the guy
is at the barbershop waiting for me.” App. at 472. Gula
commented, “[t]his is significant, because during the course of
investigation, we identified the location of Ramirez
Barbershop, which is approximately one block away from
Jeffrey Guzman’s residence. Jeffrey Guzman and Evans
Santos were regularly going over to the barbershop to
distribute narcotics to customers.” App. at 262. None of this
testimony offers an interpretation of a coded statement.
15
This commentary about Diaz’s reference to the
barbershop did not amount to proper lay opinion testimony.
Although evidence of drug activity at Ramirez Barbershop was
certainly relevant evidence to put before the jury, it was not
necessary to understand the meaning of Diaz’s text message.
Rather, linking Diaz’s statement to the evidence about Ramirez
Barbershop, as Gula did in his testimony, constituted argument
about the significance of Diaz’s statement. Although it is
“perfectly appropriate for the prosecutor to argue in
summation” that relevant evidence supports a particular
inference from communications, a “case agent’s testimony
may not ‘simply dress[ ] up argument as evidence.’” Jackson,
849 F.3d at 554 (alteration in original) (quoting Fulton, 837
F.3d at 293). The government would have been well within its
rights to argue in summation that, based on the other evidence
about Ramirez Barbershop, the use of “barbershop” in the co-
conspirators’ communications referred to drug transactions at
Ramirez Barbershop. But to present that argument by way of
lay opinion testimony interpreting a coded statement violated
Rule 701(b).
Accordingly, we conclude that the trial court
improperly admitted Gula’s conclusory testimony about Diaz’s
role in the conspiracy as well as the testimony about his
impressions of the communications in violation of Rule 701(b).
iii. Plain Error
Nonetheless, the plain error standard of review prevents
reversal. Under that standard, the error must be “clear under
current law” and impact substantial rights, having prejudiced
the defendant by affecting the trial’s outcome. United States
v. Olano, 507 U.S. 725, 734 (1993). Moreover, we will not
16
reverse unless the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
732 (alteration in original) (internal quotation marks and
citation omitted).
The improper testimony did not prejudice Diaz so as to
affect his substantial rights. Aside from Gula’s testimony, the
prosecution introduced considerable evidence of Diaz’s
involvement in the conspiracy, including the testimony of two
co-defendants, the testimony of additional investigators, and
numerous calls and text messages. Further, with respect to
Gula’s testimony about the communications, Kalinowski
effectively demonstrated on cross-examination that Gula had
relied on experience unrelated to the investigation and that his
testimony reflected only his impression of the conversations.
These factors significantly “mitigate[ ] the likelihood that [the
improper] testimony affected the outcome of the proceedings.”
Fulton, 837 F.3d at 295.
The error also did not impact the fairness, integrity, or
public reputation of the proceedings because the prosecutor did
not rely on any of Gula’s improper testimony in summation.
When “urging a guilty verdict, the prosecution focused the
jury’s attention only on the extensive admissible evidence
supporting that result.” Id. (quoting Garcia, 413 F.3d at 217).
Accordingly, we cannot conclude that the error “seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” Id.
17
C. The District Court’s Attribution of More than
20 Grams of Heroin
Diaz last challenges the District Court’s attribution of
30 grams of heroin to him at sentencing, which caused the
Court to increase the base offense level from 14 to 16. The
base offense level of 16 applies when a defendant is
responsible for at least 20 grams but less than 40 grams of
heroin. U.S.S.G. § 2D1.1(c)(12). Therefore, as long as the
evidence demonstrated Diaz’s responsibility for the minimum
20 grams of heroin required for base offense level 16, any error
in the Court’s determination that he was responsible for 30
grams did not affect the base offense level or the resulting
Guidelines range.
A sentencing court must determine by a preponderance
of the evidence that a defendant was responsible for a particular
weight of a substance before attributing that amount to the
defendant. United States v. Collado, 975 F.2d 985, 998 (3d
Cir. 1992). District courts may not calculate quantity based on
“mere speculation.” Id. However, we permit “some degree of
estimation” in drug conspiracy cases because “the government
usually cannot seize and measure all the drugs that flow
through a large drug distribution conspiracy.” Id.; United
States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993).
If a district court makes an error in its drug quantity
determination that does not affect the base offense level or
Guidelines range, the error is harmless. United States v.
Woodside, 895 F.3d 894, 901 (6th Cir. 2018) (finding any error
harmless where, absent alleged error, defendant “would still
have been sentenced according to the same base-offense level
under any conceivable estimate”); United States v. Alaniz, 726
18
F.3d 586, 621 (5th Cir. 2013) (finding any error harmless
where, absent alleged error, the undisputed drug quantity was
“sufficient to surpass the . . . threshold for the maximum Base
Offense Level”); see also United States v. Sykes, 854 F.3d 457,
462 (8th Cir. 2017) (noting that, where a change in base offense
level would not alter the applicable Guidelines range, any error
in drug quantity calculation would be harmless). Any error in
attributing 30 grams of heroin to Diaz would therefore be
harmless, so long as the evidence supported a finding of at least
20 grams.
We review the District Court’s factual determination
that Diaz was responsible for at least 20 grams of heroin for
clear error. See United States v. Metro, 882 F.3d 431, 437 (3d
Cir. 2018). When a district court improperly bases a sentence
on clearly erroneous facts, such a procedural error requires
reversal. Gall v. United States, 552 U.S. 38, 51 (2007). We
find a sentencing court’s factual findings clearly erroneous if
they are “unsupported by substantial evidence, lack adequate
evidentiary support in the record, are against the clear weight
of the evidence or where the district court has misapprehended
the weight of the evidence.” United States v. Johnson, 302
F.3d 139, 153 (3d Cir. 2002). Diaz argues that the Court
clearly erred in concluding that Diaz was responsible for 20 or
more grams of heroin. We disagree.
The Court had ample basis for determining that Diaz
was responsible for at least 20 grams of heroin. Guzman
testified that Diaz “used to bag up” heroin for him. App. at
327. When asked how much he would “normally pay” Diaz,
Guzman responded that he “paid him a hundred dollars each
10 bricks he did. So a brick is 50 bags. So each 50 times 10,
500.” Id. This testimony indicates that payment of $100 in
19
exchange for bagging 500 bags of heroin—approximately 15
grams—constituted a normal transaction for Diaz’s services.
The parties agree that at least one such transaction occurred.
Guzman testified that a text message in which Diaz said he
needed “a hundred” meant that Diaz wanted to “bag up” in
exchange for $100 and remarked, “that is what I paid him for
the drugs he bagged up.” App. at 334–35. Based on this
evidence, Diaz undisputedly bears responsibility for bagging at
least 500 bags, or 15 grams, of heroin.
But Diaz bagged for Guzman more than once. Alvarez
testified that she twice saw Diaz bagging for Guzman, and
Guzman testified that he gave Diaz heroin twice. Although
only the text message noted above specifically referenced
$100, demonstrating a quantity of 500 bags, the evidence
indicated that Guzman “normally” paid Diaz $100 for every
500 bags, allowing the inference that a similar exchange of
$100 for 500 bags would have occurred on the second
occasion. App. at 327. Two like exchanges would have
resulted in a total of 30 grams from Diaz bagging 1,000 bags
of heroin. If, instead, Diaz bagged only half the amount of
heroin—250 bags—the second time, that would still have
added 7.5 grams, bringing the total to 22.5 grams. Even
assuming Diaz bagged less than half the normal amount of
heroin on the second occasion, however, additional evidence
supported the conclusion that Diaz bore responsibility for more
than 20 grams of heroin.
Numerous text messages and calls showed that, beyond
the two occasions noted above, Diaz repeatedly worked for or
sought work from Guzman. Guzman testified that Diaz sought
to bag or distribute heroin at “the barbershop”—where the
evidence established members of the conspiracy frequently
20
distributed heroin—in at least one text message and one
subsequent call discussed at trial. App. at 333–34, 471–74. In
a third communication to Guzman, Diaz texted about the size
of bags, and Guzman testified that the message concerned the
bags Diaz used while bagging for Guzman. At least five other
text messages further supported the inference that, on the dates
of those messages, Diaz was completing work or seeking work
in furtherance of the conspiracy. Even if each of these
incidents involved only one brick—one-tenth of the amount of
work for which Diaz was “normally” paid—the total for which
Diaz was responsible would exceed 20 grams of heroin. The
District Court did not clearly err in attributing at least 20 grams
of heroin to Diaz, and to the extent any error occurred in
attributing 30 grams specifically, such error was harmless.
III. Conclusion
With respect to each of Diaz’s challenges, we find no
error warranting reversal. First, we cannot conclude that the
District Court abused its discretion when it did not address
Diaz’s motion for appointment of new counsel. Next, although
the District Court erred by failing to exclude testimony that
violated Rule 701, the error was not plain so as to warrant
reversal. Finally, we conclude that the Court did not clearly
err in attributing at least 20 grams of heroin to Diaz, and any
error in attributing 30 grams, rather than 20, was harmless.
For the foregoing reasons, we will affirm.
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