United States v. Edgar Diaz , 643 F. App'x 369 ( 2016 )


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  •      Case: 15-10076      Document: 00513458252         Page: 1    Date Filed: 04/08/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 15-10076                      United States Court of Appeals
    Fifth Circuit
    FILED
    UNITED STATES OF AMERICA,                                                    April 8, 2016
    Lyle W. Cayce
    Plaintiff - Appellee                                            Clerk
    v.
    EDGAR DALMIRA DIAZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:13-CR-248
    Before ELROD, GRAVES, and COSTA, Circuit Judges.
    PER CURIAM:*
    Edgar Dalmira Diaz appeals his sentence following his guilty-plea
    conviction for malicious use of explosive materials. Diaz challenges the district
    court’s denial of the Government’s motion for a U.S.S.G. § 5K1.1 downward
    departure based on Diaz’s substantial assistance to authorities. Finding no
    error, we AFFIRM the district court’s judgment.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 15-10076     Document: 00513458252      Page: 2    Date Filed: 04/08/2016
    No. 15-10076
    Diaz contends, under our precedent, that the district court erred in
    denying the § 5K1.1 motion by considering the severity of his offense rather
    than considering factors related to his substantial assistance to the
    Government. See United States v. Desselle, 
    450 F.3d 179
     (5th Cir. 2006). These
    arguments were not asserted by Diaz before the district court; therefore, plain-
    error review is appropriate. See United States v. Izaguirre-Losoya, 
    219 F.3d 437
    , 441 (5th Cir. 2000). To establish plain error, a defendant must show that
    “(1) there is an error, (2) the error is clear or obvious, and (3) the error affects
    his substantial rights.” United States v. Coil, 
    442 F.3d 912
    , 916 (5th Cir. 2006).
    If those three conditions are satisfied, this court may grant relief if “the error
    seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” 
    Id.
    Diaz has not shown that the district court committed plain error in
    denying the motion. The plain language of U.S.S.G. § 5K1.1 states, first, that
    the court may depart from the guidelines. If the district court finds departure
    warranted, the guideline subsequently instructs that the district court’s
    reasons for determining the appropriate reduction under the guideline may
    include consideration of the five enumerated factors. U.S.S.G. § 5K1.1(a). The
    parties dispute whether a district court's initial decision whether to depart is
    guided by the five enumerated factors. We need not decide that question,
    however, because assuming those assistance-based factors must be considered,
    the district court did consider them here.
    While Diaz urges us to find that the district court focused only on his
    crime—as opposed to focusing on any of § 5K1.1’s enumerated factors—we
    cannot; the record simply offers no support for his argument. Instead, the
    transcript of Diaz’s sentencing hearing demonstrates that before denying the
    Government’s motion for downward departure, the district court did in fact
    consider the nature, extent, and significance of his assistance to authorities in
    2
    Case: 15-10076    Document: 00513458252       Page: 3   Date Filed: 04/08/2016
    No. 15-10076
    this case. See U.S.S.G. § 5K1.1, comment (backg’d); United States v. Johnson,
    
    33 F.3d 8
    , 9 (5th Cir.1994). In fact, the district court considered Diaz’s
    assistance to the Government on at least three occasions during the sentencing
    hearing. In one of those instances, the district court provided the following
    explanation:
    I think, as [Diaz’s Counsel] always does, she has put forth the
    most eloquent argument for why I should consider [the § 5K1.1
    motion]. . . . I'm going to deny the government’s request for
    substantial assistance. I don’t think I see it in this case. I know
    you were cooperative from the beginning and perhaps –
    ....
    I don't think substantial assistance is appropriate. . . . [R]ight
    now I will deny the motion for substantial assistance under the
    circumstances. The appropriate sentence in this case, Mr. Diaz,
    under all of the circumstance[s], regardless of the government’s
    position that it was an aberrant situation that in their view you
    substantially assisted them, none of that outweighs the damage
    here and the harm that you caused to all these other people and
    the amount of money that’s been incurred by virtue of your
    actions for restitution, $1.5 million. So in my view, the Court’s
    view, the only appropriate sentence in this case to carry out the
    purposes of our sentencing statute is the minimum which is the
    60 months in prison.
    Thus, it is clear from the record that the district court did not err, plainly
    or otherwise. The district court’s judgment is therefore affirmed.
    AFFIRMED.
    3
    

Document Info

Docket Number: 15-10076

Citation Numbers: 643 F. App'x 369

Filed Date: 4/8/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023