Filed: Aug. 04, 2008
Latest Update: Feb. 21, 2020
Summary: victims for which Díaz was accountable for sentencing purposes;resentencing, United States v. Mangone, 105 F.3d 29, 35 (1st Cir.USSG § 2B1.1(b)(3).consequential error. For a sentence within that range, the, guidelines do not recommend any supervised release time.district court for resentencing.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2721
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS MANUEL DÍAZ-CORREA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Ryan Thomas Truskoski on brief for appellant.
Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant U. S. Attorney, and Mariana E. Bauzá-Almonte,
Assistant U.S. Attorney, on brief for appellee.
August 4, 2008
Per Curiam. On remand from this court for resentencing
under United States v. Booker, 543 U.S. 220 (2005), see United
States v. Díaz-Correa, No. 04-2187,
186 F. App'x 12 (1st Cir. June
28, 2006) (per curiam) (unpublished), defendant Jesús Manuel Díaz-
Correa ("Díaz") was resentenced to the same sentence previously
imposed, 57 months of imprisonment and five years of supervised
release. This is Díaz's appeal from that sentence.
Díaz raises the following issues: (1) whether the
district court erred in imposing an enhancement for "theft from the
person of another" under USSG § 2B1.1.(b)(3) where the offense
conduct--identity theft--involved no physical taking of property;
(2) whether the district court erred in failing to make an
individualized determination of the loss amount and the number of
victims for which Díaz was accountable for sentencing purposes; (3)
whether the district court erred in imposing an enhancement for
"sophisticated means" under USSG § 2B1.1(b)(8)(c); and (4) whether
the sentence imposed was unreasonable under Gall v. United States,
128 S. Ct. 586 (2007). We will consider each of them in that
order.
1. Enhancement for "theft from the person of another."
This issue raises two threshold questions: (a) Whether
appellate consideration of this issue is barred by the law-of-the-
case doctrine since it was not raised in Díaz's first appeal, see
United States v. Ticchiarelli, 171 F.3d 24, 29 (1st Cir. 1999); and
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(b) if not, whether appellate correction of this alleged error is
nevertheless barred by Díaz's failure to raise it at his
resentencing, United States v. Mangone, 105 F.3d 29, 35 (1st Cir.
1997). Both of these potential bars to appellate review have
exceptions where the alleged error is sufficiently blatant and
prejudicial. United States v. Vigneau,
337 F.3d 62, 67-68 (1st
Cir. 2003) (stating exceptions to law-of-the-case doctrine); United
States v. Olano,
507 U.S. 725, 734 (1993) (stating standards for
appellate correction of forfeited error). First we will consider
the plainness of the error and then whether it was sufficiently
prejudicial to warrant appellate review despite Díaz's double
forfeiture.
At his original sentencing, Díaz argued that no
enhancement for "theft from the person of another" should be
imposed because the relevant conduct--electronically recording
account information from credit cards without the card holders'
knowledge--did not involve a physical taking "'of property that was
being held by another person or was within arms' reach.'" The
district court rejected that argument, finding that the offense
conduct amounted to "theft" of a credit card within the meaning of
USSG § 2B1.1(b)(3). That conclusion was error, as clarified by our
subsequent decision in United States v. Pizarro-Berríos, 448 F.3d
1, 10-11 (1st Cir. 2006). In that case, involving other
participants in the same scheme at issue here, we held that "the
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guideline is intended to apply to physical takings, not to abstract
forms of theft that take place far from the victim, like credit
card fraud." Id. at 11. At least after Pizzaro-Berríos, that
error is sufficiently plain to satisfy the first two prongs of the
Olano plain-error standard.
Where correction of such a guidelines calculation error
would lead to a lower sentence, remand for resentencing is
ordinarily warranted under the third and fourth prongs of that
standard. United States v. Antonakopoulos, 399 F.3d 68, 81 (1st
Cir. 2005). Here, correction of the error would reduce Díaz's
offense level by two levels and reduce his guidelines sentencing
range from 57-71 months to 46-57 months. However, because Díaz has
already served his prison sentence, reducing his guidelines range
for imprisonment would not, by itself, be of any consequence on
remand. But, as discussed next, there may have been a more
consequential error.
2. Individualized determination of amount of loss and number
of victims.
This issue was mentioned--albeit obliquely--in Díaz's
first appeal. Therefore, the law-of-the-case doctrine is
inapplicable to this issue. Nor is this court's review of this
issue limited by the plain-error doctrine since, unlike the issue
discussed above, this one was renewed at resentencing.
Díaz argues that, despite his stipulation in his plea
agreement to a 14-level enhancement based on losses of over
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$400,000 that resulted from the conspiracy as a whole, he should be
held accountable only for the approximately $2,500 in purchases
that he personally made and that were alleged as overt acts in the
indictment and in the government's version of facts, to which he
stipulated at his change-of-plea hearing. He makes essentially the
same objection to the enhancement for 10 to 50 victims, arguing
that, despite his agreement to that enhancement in his plea
agreement, he should be held accountable only for the two victims
of his two purchases that were alleged as overt acts in the
indictment and described in the stipulated version of the facts.
Ordinarily, defendants are bound by their stipulations to
guideline calculations in their plea agreements, United States v.
Teeter, 257 F.3d 14, 28 (1st Cir. 2001), but not where those
stipulations are based on errors of law,
id. Also, the court can
relieve parties from stipulations of fact or of the application of
guidelines to facts "on terms that are just."
Id. Here, Díaz's
stipulation to "[l]osses over $400k" for purposes of application of
a 14-level enhancement, is muddied by his stipulation, in the same
document, to serving as a purchaser "for an organization involved
in a scheme to defraud federally-insured financial institutions, in
excess of four hundred thousand dollars ($400,000.00)" (emphasis
added) and by his counsel's repeated protestations that Díaz was
responsible only for the much smaller amounts of his own purchases.
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The record is susceptible of two different readings. One
reading is that Díaz stipulated and the court found, as a factual
matter, that the $400,000 loss amount and the 10-50 victims were
foreseeable by Díaz, in which case, that amount and number of
victims were properly attributed to him. Pizzaro-Berríos, 448 F.3d
at 7. However, an equally plausible reading is that the court
mistakenly believed that Díaz's stipulation to the overall loss
amount and number of victims relieved the court of its
responsibility to "make an individualized determination regarding
the amount of loss [and number of victims] attributable to, or
reasonably foreseeable by [Díaz],"
id., in which case the district
court erred.
To eliminate the latter possibility (particularly in
light of the potential effect of this error on defendant's
supervised release term),1 we will remand this case to the district
court with instructions to make such individualized determinations
and, if warranted, to recalculate Díaz's guidelines range
accordingly.
1
If Díaz were held accountable for only the $2,500 in
purchases he personally made rather than for the $400,000 loss
resulting from the conspiracy as a whole and for only 2 rather than
10 to 50 victims, his offense level would drop 16 levels, USSG
§ 2B1.1(b)(1), (2), and his resulting guidelines sentencing range
would be 4 to 10 months. For a sentence within that range, the
guidelines do not recommend any supervised release time. USSG
§ 5D1.1(a).
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3. Enhancement for sophisticated means.
Díaz acknowledges that this issue was not raised in his
first appeal or at his resentencing but makes only the conclusory
statement that the error was sufficiently "plain" to warrant
correction in any event. He makes no attempt to get around his
stipulation to this enhancement in his plea agreement. His
discussion of the merits of that issue is equally perfunctory.
Accordingly, we decline to address the issue. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
4. Unreasonableness of the sentence under Gall.
To the extent that the district court erred in
interpreting the guidelines or applying them to the facts of this
case, such errors render its sentence procedurally unreasonable.
Gall, 128 S. Ct. at 597. Apart from those purported errors, which
have already been discussed, Díaz argues only that the district
court failed to consider his "very limited role in the conspiracy."
The short answer to that contention is that the district court took
Díaz's minor role into account by applying a two-level downward
adjustment to his offense level on that basis. The court also
heard but rejected defendant's other arguments for leniency under
18 U.S.C. § 3553(a). No more was required,
Gall, 128 S. Ct. at
596, particularly where, as here, the ultimate sentence fell within
the guidelines range, Rita v. United States,
127 S. Ct. 2456, 2468
(2007).
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In sum, because the district court plainly erred in
applying an enhancement for "theft from the person of another" and
may have erred in failing to make individualized determinations of
the loss amount and the number of victims for which Díaz was
accountable, we vacate the sentence and remand the case to the
district court for resentencing. On remand, the district court
should eliminate the two-level enhancement for theft from the
person of another; should make individualized determinations of the
amount of loss and number of victims for which Diaz was accountable
either on the existing record or, if the court deems necessary,
after taking additional evidence; and should recalculate the
guidelines sentencing range if its individualized determinations
require it. If the top of the resulting range falls below one
year, then the court should also reconsider Díaz's term of
supervised release in light of the guidelines (which permit but do
not recommend any supervised release where the prison sentence
imposed is less than one year, USSG § 5D1.1) and the other factors
referenced in 18 U.S.C. § 3553(c).
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