United States v. Diaz-Rodriquez , 232 F. App'x 227 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO LUIS DIAZ-RODRIQUEZ, a/k/a Bordy,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:03-cr-70006-SGW-5)
Submitted: March 28, 2007 Decided: May 8, 2007
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Larry W. Shelton, Randy V. Cargill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. John L. Brownlee,
United States Attorney, William F. Gould, Assistant United States
Attorney, Adam B. Schwartz, Third Year Practitioner,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Luis Diaz-Rodriquez pled guilty to conspiracy to
possess with intent to distribute 50 grams or more of cocaine base
(crack), 21 U.S.C. § 846 (2000), and was sentenced in June 2004 to
235 months imprisonment. He did not appeal the judgment, but
subsequently filed a motion to vacate under 28 U.S.C. § 2255(2000), alleging that he had asked his attorney to file an appeal.
After an evidentiary hearing, the district court granted relief
under § 2255, vacated the judgment, entered a new judgment, and
noted an appeal on Diaz-Rodriquez’ behalf. See United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993) (holding that counsel’s
failure to file a notice of appeal when requested to do so is per
se ineffective assistance). Diaz-Rodriquez now claims on appeal
that his Sixth Amendment right to effective assistance of counsel
was violated when his prior attorney withdrew his objections to the
presentence report at the sentencing hearing and that Sixth
Amendment error occurred under United States v. Booker, 543 U.S.
220 (2005), when his sentence was increased based on facts that
were neither charged in the indictment nor admitted by him.
Finding merit in his second claim, we vacate the sentence and
remand for resentencing consistent with Booker.1
1
We note that Diaz-Rodriquez waived his right to appeal the
sentence in his plea agreement. Because the government has not
asserted the waiver as a bar to this appeal, we will not treat it
as such. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).
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Diaz-Rodriquez was sentenced before Blakely v.
Washington, 542 U.S. 296 (2004), and Booker were decided. Because
the claims he raises here were not raised in the district court,
our review is for plain error. United States v. Olano, 507 U.S.
725, 732-37 (1993) (discussing standard); United States v. Hughes,
401 F.3d 540, 547-48 (4th Cir. 2005) (same).
At the sentencing hearing, counsel for Diaz-Rodriquez
withdrew the objections he had filed contesting the drug quantity
attributed to his client and the manager role adjustment
recommended in the presentence report. Diaz-Rodriquez informed the
court that he agreed that the objections should be withdrawn.
After Diaz-Rodriquez filed his § 2255 motion, the only issue
addressed by the district court was whether the attorney was
ineffective in failing to consult with Diaz-Rodriquez about an
appeal following his sentencing. The attorney’s testimony at the
evidentiary hearing did not reveal his reason for deciding to
withdraw the objections to the presentence report; indeed, he was
unable to explain what his reasons might have been. However, the
district court did not decide whether the attorney was ineffective
in withdrawing the objections. To succeed in a claim of
ineffective assistance on direct appeal, a defendant must show
conclusively from the face of the record that counsel provided
ineffective representation. United States v. James, 337 F.3d 387,
391 (4th Cir. 2003). Even though, in this case, we have the
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benefit of the attorney’s testimony about his conduct at the
sentencing hearing, we cannot say conclusively that counsel was
ineffective in withdrawing the objections. Therefore, this claim
fails.
As the government concedes, Diaz-Rodriquez’ second Sixth
Amendment claim has merit. Even though Diaz-Rodriquez withdrew his
objections to the guideline calculation, his silence did not
constitute an admission, for Booker purposes, of the facts set out
in the presentence report. United States v. Milam, 443 F.3d 382,
387 (4th Cir. 2006); see also United States v. Revels, 455 F.3d
448, 450 (4th Cir.), cert. denied, 127 S. Ct. 299 (2006).
Diaz-Rodriquez admitted only that he conspired to distribute fifty
grams of crack, as charged in the indictment, but he was held
responsible for 1.5 kilograms of crack. His base offense level was
thus increased from 32 to 38. Another two levels were added for
having a managerial role, which he did not admit. Without these
enhancements, the guideline range would have been 121-151 months.2
Diaz-Rodriquez’ 235-month sentence thus exceeded the maximum
permissible, under a mandatory guideline scheme, based on facts he
admitted.
2
This calculation does not take into account the three-level
adjustment for acceptance of responsibility that Diaz-Rodriquez
received. United States v. Evans, 416 F.3d 298, 299 n.4 (4th Cir.
2005).
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Because Diaz-Rodriquez has established plain error that
affected his substantial rights, we vacate his sentence and remand
this case for resentencing consistent with Booker and Hughes.
Although the sentencing guidelines are no longer mandatory, Booker
makes clear that a sentencing court must still “consult [the]
Guidelines and take them into account when sentencing.” 543 U.S.
at 264. On remand, the district court should first determine the
appropriate sentencing range under the guidelines. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a), and then
impose a sentence. Id. at 546. If that sentence falls outside the
guidelines range, the court should explain its reasons for the
departure, as required by 18 U.S.C. § 3553(c)(2). Id. at 546. The
sentence must be “within the statutorily prescribed range and ...
reasonable.” Id. at 547.3 We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
3
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Diaz-Rodriquez’
sentencing. See generally Johnson v. United States, 520 U.S. 461,
468 (1997) (stating that an error is ‘plain’ if “the law at the
time of trial was settled and clearly contrary to the law at the
time of appeal”).
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