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United States v. Diaz

July 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RALPH DIAZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 513-Amy J. St. Eve, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED MAY 8, 2008

Before COFFEY, RIPPLE and SYKES, Circuit Judges.

Ralph Diaz pleaded guilty to conspiracy to possess with intent to distribute and conspiracy to distribute cocaine, see 21 U.S.C. §§ 846, 841(a)(1), and the district court sentenced him to 46 months' imprisonment. On appeal, Mr. Diaz contends that his sentence is invalid because the district court mistakenly applied a presumption in favor of a within-guidelines sentence. He also argues, albeit only in his reply brief, that the district court did not explain sufficiently why it rejected his arguments for a lower sentence. A review of the sentencing transcript, read as a whole, refutes both argu- ments, and, therefore, we affirm the judgment of the district court.

I. BACKGROUND

In the summer of 2006, an informant, working with the Drug Enforcement Administration ("DEA") and Evanston, Illinois police, arranged to buy three kilograms of cocaine from Mr. Diaz. On the day of the sale, Mr. Diaz met the informant at a residence in Evanston. While there, Mr. Diaz telephoned an associate, who arrived by car moments later. Mr. Diaz removed a guitar case from his associate's car and opened it. When the informant saw that the case contained plastic bags holding a substance that appeared to be cocaine, he gave the prearranged arrest signal. DEA agents and local police appeared; Mr. Diaz fled, but he was apprehended two blocks away.

Mr. Diaz pleaded guilty to conspiracy to possess with intent to distribute and conspiracy to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). At sentencing, the district court computed the guidelines range from facts admitted in the plea agreement. The quantity of cocaine- three kilograms-triggered a base offense level of 28. See U.S.S.G. § 2D1.1(c)(6). The district court reduced this level by two under the "safety valve" provision. See id. § 2D1.1(b)(11). It then applied another three-level reduction for acceptance of responsibility. See id. § 3E1.1. Combined with his criminal history category of I, Mr. Diaz's total offense level of 23 yielded a guidelines imprisonment range of 46 to 57 months. Neither Mr. Diaz nor the Government objected to this guidelines calculation.

Mr. Diaz, through counsel, argued for a below-guidelines sentence because of his impoverished childhood in Mexico and his attempts to help family members who remained there. He also contended that the circumstances of the drug deal warranted a lower sentence. Counsel asserted, without producing any supporting evidence, that Mr. Diaz took part in the deal only because he was struggling financially, that the confidential informant was the one who had specified the drug quantity and that Mr. Diaz stood to earn no more than $1,000 in his role as a "middleman" for the sale. Finally, Mr. Diaz asked the court, again through counsel, to take into account the conditions of his pretrial confinement as well as his attempts to better himself while incarcerated.

The Government asked the court to impose a sentence within the guidelines range. It argued that Mr. Diaz was more than a "middleman" and noted that, although he had no prior convictions, he was in the Country illegally, had been arrested twice for drug crimes and had been deported twice to Mexico. The Government also contended that the court could not take into account the conditions of Mr. Diaz's pretrial confinement and that, even if it could, those conditions were not sufficiently extraordinary to warrant a lower sentence.

In imposing the sentence, the district court explicitly stated that it had considered the factors in 18 U.S.C. § 3553(a). It imposed a sentence at the lowest end of the guidelines range, 46 months. As the court explained:

Given the seriousness of the offense, the need to promote respect for the law and to provide just punishment for this offense, and to deter criminal conduct and protect the public, and to deter others from engaging in this type of conduct, I do find that the Guideline range is reasonable here. Even considering, if the Court can consider, factors such as being housed at Kankakee, I do not think the differences warrant any deviation from the Guidelines.

. . . I believe the low end of the Guideline range is appropriate and will satisfy and address the factors in Section 3553 that I have just reviewed.

R.30 at ...


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