Filed: Sep. 12, 2016
Latest Update: Mar. 03, 2020
Summary: Case: 15-11185 Date Filed: 09/12/2016 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 15-11185 Non-Argument Calendar _ D.C. Docket No. 1:14-cr-20345-FAM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WILLIAM DIAZ, Defendant - Appellant. _ Appeals from the United States District Court for the Southern District of Florida _ (September 12, 2016) Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges. PER CURIAM: William Diaz appeals the
Summary: Case: 15-11185 Date Filed: 09/12/2016 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 15-11185 Non-Argument Calendar _ D.C. Docket No. 1:14-cr-20345-FAM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WILLIAM DIAZ, Defendant - Appellant. _ Appeals from the United States District Court for the Southern District of Florida _ (September 12, 2016) Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges. PER CURIAM: William Diaz appeals the 8..
More
Case: 15-11185 Date Filed: 09/12/2016 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11185
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-20345-FAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM DIAZ,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 12, 2016)
Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
William Diaz appeals the 87-month prison sentence he received on March 4,
2015, on a plea of guilty to conspiracy to commit bank fraud and wire fraud, in
Case: 15-11185 Date Filed: 09/12/2016 Page: 2 of 7
violation of 18 U.S.C. § 1349. Diaz participated in a fraudulent real estate
transaction scheme in which he played a role, to varying degrees, in defrauding
mortgage companies in order to obtain loans for eight residential properties in
South Florida. We find no merit in Diaz’s appeal and accordingly affirm the
District Court’s judgment.
Diaz’s brief raises four issues. The first is whether the District Judge who
presided over the case erred in failing to disclose to the parties prior to sentencing
that an individual unknown to the Judge came up to him at an event at the Miami
Beach Convention Center on December 7, 2014, three months prior to Diaz’s
sentencing, and said that “he had a friend that had a case [unidentified] in front of
me.” Unbeknownst to the Judge, the individual was an employee of Diaz. Post
sentencing, Diaz revealed the Convention Center contact in two motions: a motion
to vacate sentence pursuant to Federal Rule of Criminal Procedure 35 and a motion
to recuse. The Court recused, and in accordance with the Local Rules of the
Southern District of Florida, the Clerk assigned the Rule 35 motion to a different
district judge.
Diaz’s Notice of Appeal appeals the Rule 35 disposition and his sentence.
The Rule 35 motion remains undisposed of in the District Court, so it is not before
us.1 What is before this Court is Diaz’s appeal of his sentence. We have
1
It is problematic whether Rule 35 can provide the service Diaz is seeking.
2
Case: 15-11185 Date Filed: 09/12/2016 Page: 3 of 7
jurisdiction to hear it pursuant to 18 U.S.C. § 3742(a). Diaz’s brief presents three
issues concerning his sentence: (1) whether the District Court erred under Federal
Rule of Criminal Procedure 32 in failing to ensure prior to the imposition of
sentence that he and his attorney had reviewed the presentence report (“PSI”); (2)
whether the Court failed to comply with Rule 32 in failing to state on the record
why it was denying his motion for a downward departure from the Guidelines
sentence range; and (3) whether the Court erred in calculating the loss attributable
to his conduct.
I.
Federal Rule of Criminal Procedure 32 provides, in relevant part, that at
sentencing, the district court “must—for any disputed portion of the [PSI] or other
controverted matter—rule on the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Diaz did not
The authority of a district court to modify an imprisonment sentence is narrowly
limited by statute. Specifically, [18 U.S.C.] § 3582(c), provides that a court may
not modify an imprisonment sentence expect in these three circumstances: (1)
where the Bureau of Prisons has filed a motion and [certain other conditions are
met]; (2) where another statute or [Rule] 35 expressly permits a sentence
modification . . . or (3) where a defendant has been sentenced to a term of
imprisonment based on a sentencing range that was subsequently lowered by the
[Sentencing] Commission and certain other requirements are met. . . . absent other
express statutory authority, modification of an imprisonment sentence can only be
done pursuant to Rule 35.
United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010) (citing 18 U.S.C. § 3582(c)).
3
Case: 15-11185 Date Filed: 09/12/2016 Page: 4 of 7
object to the District Court’s failure to comply with the rule following the
imposition of sentence, when the Court elicited the parties’ objections, so we
review the issue for plain error. United States v. Peters, 403 F.3d 1263, 1270 (11th
Cir. 2005). We may only correct an error not raised by the defendant to the
district court if there is: (1) error, (2) that is plain, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or public reputation of
judicial proceedings.
Id. at 1271. Unless the language of a statute specifically
resolves the issue, “there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” United States v. Chau,
426
F.3d 1318, 1322 (11th Cir. 2005) (quotation marks and citation omitted).
The record does not tell us in so many words that Diaz and his attorney
discussed the PSI prior to sentencing. But they must have, because Diaz’s attorney
moved the District Court at sentencing for a downward departure from the
Guidelines sentence range. To make the motion, counsel must have read the PSI
and explained to Diaz why a downward departure was required to avoid a sentence
within the Guidelines range. What counsel’s, and Diaz’s, behavior communicated
to the Court was that they were well acquainted with the PSI. Because Diaz points
us to no controlling authority that would have informed the District Court that Diaz
and his lawyer had not discussed the PSI and that it should intervene, we find no
plain error.
4
Case: 15-11185 Date Filed: 09/12/2016 Page: 5 of 7
II.
Diaz claims that the District Court failed to comply with Rule 32 by not
explicitly ruling on his motion for a downward departure which was based on the
proposition that his criminal history category II overrepresented his criminal
history. 2 Because Diaz did not raise this argument to the District Court when the
Court asked if Diaz had any objection to the imposed sentence, we review his
claim for plain error.
While it is undisputed that the District Court did not expressly state that it
had ruled on Diaz’s motion for a downward departure, the record is clear that the
Court did implicitly rule on that motion. The PSI established an advisory guideline
range of 87-108 months’ imprisonment based on offense level 28 in criminal
history category II. The advisory range was 78-97 months with a criminal history
category I. The Court, in sentencing Diaz to 87 months, provided explicitly that
while “there is an increase by criminal history category of [II] . . . I do note that the
87 months still falls within the guideline range for a criminal history category [I].”
Thus, the record supports unambiguously that the Court did in fact rule on the
matter. The Court did not err, much less commit plain error.
2
The PSI stated that Diaz had two separate convictions for Driving Under the Influence
and three separate boating violations, all of which established a criminal history category of II.
5
Case: 15-11185 Date Filed: 09/12/2016 Page: 6 of 7
III.
Diaz argues that the District Court erred in its calculation of loss attributed
to his conduct, thereby imposing a higher enhancement under the Sentencing
Guidelines than his conduct merited. In accordance with the recommendation of
the PSI, the District Court imposed a 20-level enhancement for fraud based on the
loss amount of $7,268,037. Diaz argues that the Court erred in its loss calculation
by incorrectly attributing to him loss from a fraudulent real estate transaction that
Diaz claims was caused unilaterally by one of his co-conspirators. Specifically,
Diaz claims that although he participated in defrauding a mortgage lender in the
transaction, he believed that the co-conspirator would use the proceeds of the
fraudulently-obtained loan to pay back an earlier mortgage, thereby lessening the
amount of loss. Instead, the co-conspirator did not pay back the mortgage, and the
Court attributed that loss to Diaz. Diaz concludes that if the Court calculated loss
without including that amount, it would have imposed an 18-level enhancement
rather than a 20-level enhancement.3
We review a district court’s loss calculation for clear error. United States v.
Campbell, 765 F.3d 1291, 1301-02 (11th Cir. 2014). No clear error exists in which
the record supports the district court’s findings. United States v. Rodriguez, 751
3
The 2014 Sentencing Guidelines, applicable when Diaz was sentenced, provided for a
20-level enhancement for fraud offenses where the loss amount is more than $7,000,000 but less
than $20,000,000. U.S.S.G. § 2B.1.1(b)(1)(K)-(L) (2014). It provides for an 18-level
enhancement where the loss amount is more than $2,500,000 but less than $7,000,000. Id.
§ 2B.1.1(b)(1)(J)-(K) (2014).
6
Case: 15-11185 Date Filed: 09/12/2016 Page: 7 of 7
F.3d 1244, 1255 (11th Cir. 2014). In attributing to Diaz loss caused by the co-
conspirator, the Court reasoned that even if Diaz did not “actually think the loss
was going to be the sum that it was,” the loss fell “within the gamut of intended
loss.” A court “may hold all participants in a conspiracy responsible for the losses
resulting from the reasonably foreseeable acts of co-conspirators in furtherance of
the conspiracy.” United States v. Dabbs,
134 F.3d 1071, 1082 (11th Cir. 1998).
Based on the undisputed facts in the record that Diaz was directly involved in the
fraudulent transaction in question and that Diaz knew that the co-conspirator had
never paid off any mortgages during the entire course of the conspiracy—a
conspiracy involving seven other fraudulent transactions—it was not clear error for
the District Court to conclude that Diaz could have reasonably foreseen the loss as
a result of his fraudulent actions. 4
AFFIRMED.
4
Diaz contends also that the District Court erred in its loss calculation by relying on both
the actual loss and the intended loss of his fraudulent conduct, and by relying on the unilateral
loss figures provided by the victim banks, thereby not requiring the government to meet its
burden of proving loss. The Guidelines define “loss” as the greater of the actual loss or intended
loss. U.S.S.G. § 2B1.1 cmt. n.3(A). The record reveals that the District Court relied solely on
the actual loss to the victim banks as a result of Diaz’s fraudulent conduct. Further, other than
his co-conspirator’s loss attributed to Diaz that he challenged above, Diaz did not object to the
loss figures reported in the PSI. While the government has the burden of establishing disputed
fact by a preponderance of the evidence, Diaz did not dispute the loss figures. Accordingly, the
District Court did not clearly err in relying on those figures. See United States v. Polar, 369 F.3d
1248, 1255 (11th Cir. 2004) (“The district court’s factual findings for purposes of sentencing
may be based on . . . undisputed statements in the PSI.”).
7
