United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 15, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-20702 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee, versus
JERMAINE CARLOS DIAZ,
Defendant-Appellant.
- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas (H-01-CR-528-ALL) - - - - - - - - - -
Before JOLLY and WIENER, Circuit Judges.*
PER CURIAM:**
This matter is before us on remand from the Supreme Court for
reconsideration in light of United States v. Booker.1 At our
request, the parties have commented on the impact of Booker. We
conclude that Booker does not affect Defendant-Appellant Jermaine
Carlos Diaz’s (“Diaz”) sentence.
* Judge Pickering was a member of the original panel that heard this case, but he has since retired. This matter is being handled by a quorum. 28 U.S.C. § 46(d). ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 543 U.S. 220 (2005). I. BACKGROUND
In 2001, a federal grand jury returned indictments charging
Diaz with six counts: one count of enticement to travel in
interstate commerce for purposes of prostitution, in violation of
18 U.S.C. § 2422(a); one count of transporting a minor in
interstate commerce for purposes of prostitution, in violation of
18 U.S.C. § 2423(a); two counts of aiding and abetting violations
of 18 U.S.C. §§ 2422(a) and 2423(a); and two counts of misprision
of a felony, in violation of 18 U.S.C. § 4. Diaz was acquitted on
four counts: The district court granted his motion for judgment of
acquittal on the two misprision counts; and the jury acquitted Diaz
on the enticement to travel in interstate commerce for purposes of
prostitution and aiding and abetting counts. He was convicted,
however, of the remaining two counts —— transportation of a minor
in interstate commerce for purposes of prostitution and aiding and
abetting such transportation, in violation of 18 U.S.C. §§ 2423(a)
and 2.
Following Diaz’s conviction, the Probation Office prepared a
Presentencing Report (“PSR”), which, under the then-mandatory
Sentencing Guidelines (“the Guidelines” or “USSG”), calculated his
offense level as 27, his criminal history category as II, and his
resulting sentencing range as 78-97 months’ imprisonment. In doing
so, the PSR started with a base offense level of 14, pursuant to
USSG § 2G1.1(a). It increased that by four levels under USSG §
2G1.1(b)(1) to account for Diaz’s use of physical force, coercion,
or threats in the commission of his crime; by seven more levels
2 under USSG § 2G1.1(b)(2)(B) to account for Diaz’s victim being
under the age of 16; and by another two levels under USSG § 3C1.1
to account for Diaz’s obstruction of justice.
Diaz objected to these level increases. He complained that
the increase for use of physical force, coercion, or threats was
not justified “because the jury specifically found the Defendant
Not Guilty of” enticement to travel in interstate commerce for
purposes of prostitution. He objected to the obstruction-of-
justice increase because “[t]here was no testimony from [his
victim] that she had been influenced in any manner.”2 Finally,
Diaz urged that he was entitled to a level reduction for acceptance
of responsibility.
The district court overruled each of Diaz’s objections, but
granted his request for a two-level reduction for acceptance of
responsibility, and granted another three-level reduction because
of Diaz’s young age at the time of his crime. These adjustments
resulted in an offense level of 22, a criminal history category of
II, and a sentencing range of 46-57 months. The district court
sentenced Diaz in the middle of that range, i.e., to 51 months’
imprisonment, as well as three years’ supervised release and a $100
special assessment.3
2 Diaz also objected to the enhancement for the age of his victim, arguing that it was inappropriate because, although she was under 16 at the time of his crime, she was older than he. 3 Bureau of Prisons records indicate that Diaz was released from prison on November 26, 2004. Because he remains under supervised release, however, the end of his prison term did not moot his appeal.
3 Notably, when Diaz appealed his conviction to us, he did
not challenge his sentence or otherwise press the objections that
he had made to the district court regarding its imposition of
sentencing enhancements for obstruction-of-justice and the use of
force, coercion, or threats. We affirmed his conviction in an
unpublished opinion.4 It was only in an amended petition to the
Supreme Court for a writ of certiorari that Diaz renewed his
objection to the district court’s imposition of sentencing
enhancements for obstruction-of-justice and the use of force,
coercion, or threats. In that amended petition, he contended that
under Blakely v. Washington,5 the district court’s reliance on
facts that were not proven to the jury beyond a reasonable doubt to
enhance his sentence violated his Sixth Amendment rights. Shortly
thereafter, the Supreme Court handed down Booker, granted Diaz’s
amended petition for certiorari, and remanded this case to us for
further consideration.6 We once again affirm.
II. ANALYSIS
A. Standard of Review
At the outset, the parties dispute our standard of review for
Diaz’s Booker claim. Diaz contends that he is entitled to de
novo review of his claim because he “objected to the district
court’s judicial findings on the use of force, age of the victim,
4 United States v. Diaz, 95 Fed. Appx. 535 (5th Cir. Mar. 16, 2004) (unpublished per curiam opinion). 5 542 U.S. 296 (2004). 6 Diaz v. United States, 543 U.S. 1099 (2005).
4 and obstruction of justice, and the enhancements based on those
findings.” The government disagrees, arguing that plain error
review governs this case because “the [Booker] issue was not raised
in the court below.”
Diaz is simply wrong: Although his objections in the district
court to the PSR’s sentencing enhancement recommendations may have
been sufficient to preserve his Booker claim for his first appeal,
he abandoned that claim by failing to assert it the first time his
case was before us.7 We are not as confident, however, about the
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 15, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-20702 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee, versus
JERMAINE CARLOS DIAZ,
Defendant-Appellant.
- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas (H-01-CR-528-ALL) - - - - - - - - - -
Before JOLLY and WIENER, Circuit Judges.*
PER CURIAM:**
This matter is before us on remand from the Supreme Court for
reconsideration in light of United States v. Booker.1 At our
request, the parties have commented on the impact of Booker. We
conclude that Booker does not affect Defendant-Appellant Jermaine
Carlos Diaz’s (“Diaz”) sentence.
* Judge Pickering was a member of the original panel that heard this case, but he has since retired. This matter is being handled by a quorum. 28 U.S.C. § 46(d). ** 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. 1 543 U.S. 220 (2005). I. BACKGROUND
In 2001, a federal grand jury returned indictments charging
Diaz with six counts: one count of enticement to travel in
interstate commerce for purposes of prostitution, in violation of
18 U.S.C. § 2422(a); one count of transporting a minor in
interstate commerce for purposes of prostitution, in violation of
18 U.S.C. § 2423(a); two counts of aiding and abetting violations
of 18 U.S.C. §§ 2422(a) and 2423(a); and two counts of misprision
of a felony, in violation of 18 U.S.C. § 4. Diaz was acquitted on
four counts: The district court granted his motion for judgment of
acquittal on the two misprision counts; and the jury acquitted Diaz
on the enticement to travel in interstate commerce for purposes of
prostitution and aiding and abetting counts. He was convicted,
however, of the remaining two counts —— transportation of a minor
in interstate commerce for purposes of prostitution and aiding and
abetting such transportation, in violation of 18 U.S.C. §§ 2423(a)
and 2.
Following Diaz’s conviction, the Probation Office prepared a
Presentencing Report (“PSR”), which, under the then-mandatory
Sentencing Guidelines (“the Guidelines” or “USSG”), calculated his
offense level as 27, his criminal history category as II, and his
resulting sentencing range as 78-97 months’ imprisonment. In doing
so, the PSR started with a base offense level of 14, pursuant to
USSG § 2G1.1(a). It increased that by four levels under USSG §
2G1.1(b)(1) to account for Diaz’s use of physical force, coercion,
or threats in the commission of his crime; by seven more levels
2 under USSG § 2G1.1(b)(2)(B) to account for Diaz’s victim being
under the age of 16; and by another two levels under USSG § 3C1.1
to account for Diaz’s obstruction of justice.
Diaz objected to these level increases. He complained that
the increase for use of physical force, coercion, or threats was
not justified “because the jury specifically found the Defendant
Not Guilty of” enticement to travel in interstate commerce for
purposes of prostitution. He objected to the obstruction-of-
justice increase because “[t]here was no testimony from [his
victim] that she had been influenced in any manner.”2 Finally,
Diaz urged that he was entitled to a level reduction for acceptance
of responsibility.
The district court overruled each of Diaz’s objections, but
granted his request for a two-level reduction for acceptance of
responsibility, and granted another three-level reduction because
of Diaz’s young age at the time of his crime. These adjustments
resulted in an offense level of 22, a criminal history category of
II, and a sentencing range of 46-57 months. The district court
sentenced Diaz in the middle of that range, i.e., to 51 months’
imprisonment, as well as three years’ supervised release and a $100
special assessment.3
2 Diaz also objected to the enhancement for the age of his victim, arguing that it was inappropriate because, although she was under 16 at the time of his crime, she was older than he. 3 Bureau of Prisons records indicate that Diaz was released from prison on November 26, 2004. Because he remains under supervised release, however, the end of his prison term did not moot his appeal.
3 Notably, when Diaz appealed his conviction to us, he did
not challenge his sentence or otherwise press the objections that
he had made to the district court regarding its imposition of
sentencing enhancements for obstruction-of-justice and the use of
force, coercion, or threats. We affirmed his conviction in an
unpublished opinion.4 It was only in an amended petition to the
Supreme Court for a writ of certiorari that Diaz renewed his
objection to the district court’s imposition of sentencing
enhancements for obstruction-of-justice and the use of force,
coercion, or threats. In that amended petition, he contended that
under Blakely v. Washington,5 the district court’s reliance on
facts that were not proven to the jury beyond a reasonable doubt to
enhance his sentence violated his Sixth Amendment rights. Shortly
thereafter, the Supreme Court handed down Booker, granted Diaz’s
amended petition for certiorari, and remanded this case to us for
further consideration.6 We once again affirm.
II. ANALYSIS
A. Standard of Review
At the outset, the parties dispute our standard of review for
Diaz’s Booker claim. Diaz contends that he is entitled to de
novo review of his claim because he “objected to the district
court’s judicial findings on the use of force, age of the victim,
4 United States v. Diaz, 95 Fed. Appx. 535 (5th Cir. Mar. 16, 2004) (unpublished per curiam opinion). 5 542 U.S. 296 (2004). 6 Diaz v. United States, 543 U.S. 1099 (2005).
4 and obstruction of justice, and the enhancements based on those
findings.” The government disagrees, arguing that plain error
review governs this case because “the [Booker] issue was not raised
in the court below.”
Diaz is simply wrong: Although his objections in the district
court to the PSR’s sentencing enhancement recommendations may have
been sufficient to preserve his Booker claim for his first appeal,
he abandoned that claim by failing to assert it the first time his
case was before us.7 We are not as confident, however, about the
propriety of the government’s assertion that the plain error
standard governs this case. Our decisions are legion that
“extraordinary circumstances” review governs Booker claims raised
for the first time in a petition for a writ of certiorari.8 Diaz,
however, did not raise his Booker claim for the first time in his
cert petition; he took the unusual route of preserving his claim in
the district court, abandoning it before us, and then reasserting
it in the Supreme Court. Legal niceties aside, however, whether
“extraordinary circumstances” or “plain error” review governs this
case is irrelevant: As Diaz cannot meet even the requirements of
plain error review, he certainly cannot meet the more onerous
7 See United States v. Lipscomb, 299 F.3d 303, 358-59 (5th Cir. 2002). Furthermore, even had he not abandoned his Booker claim, he would not be entitled to de novo review; he would be entitled to review under the harmless error standard. See, e.g., United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). 8 See, e.g., United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
5 requirements of “extraordinary circumstances” review.9 We
therefore assume arguendo that the plain error standard governs
Diaz’s case.
Under plain error review, we will not remand for resentencing
unless there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.”10 If all three criteria are met, we may
exercise our discretion to notice the error only if it “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.”11 Under Booker, the district court’s enhancement of
Diaz’s sentence under mandatory Guidelines based on facts not
proven to the jury beyond a reasonable doubt (1) constitutes error
that (2) is plain.12 Whether the error affects substantial rights
is a more complex inquiry for which Diaz bears the burden of proof.
He will carry this burden only if he can “show[] that the error
‘must have affected the outcome of the district court
proceedings.’”13 That may be shown, in turn, by his “demonstrat[ion
of] a probability ‘sufficient to undermine confidence in the
outcome.’”14 In other words, Diaz must identify in the record an
indication that the “sentencing judge —— sentencing under an
9 See, e.g., id. 10 United States v. Cotton, 535 U.S. 625, 631 (2002). 11 Id. 12 United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005). 13 Id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). 14 Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74 (2004)).
6 advisory [Guidelines] scheme rather than a mandatory one —— would
have reached a significantly different result.”15
B. Merits
In his supplemental letter brief, Diaz makes no attempt to
cite to anything in the record indicating that there is a
probability that the sentencing judge would have sentenced him
differently under an advisory Guidelines scheme. Instead, he
argues that the Booker error in this case affected his substantial
rights “because (1) Booker error is structural, or at least
presumptively prejudicial; and (2), in any event, based on the
judge-made, preponderance-of-the-evidence findings, he received a
sentence greater than the maximum of the facts found by the jury.”
His first argument is foreclosed by our precedents16; his second
merely states the error in this case that is plain without
directing our attention to anything in the record indicating that
he would have received a significantly different sentence under an
advisory Guidelines scheme.
In essence, Diaz has done nothing more than preserve a
challenge to the standard of review we adopted in Mares, arguing
that in Mares we got it wrong, and that the plain error standard
employed by other courts gets it right. Mares is the settled law
of this circuit, however, and we may revisit it only en banc or
following a Supreme Court decision that actually or effectively
15 Id. 16 See, e.g., United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).
7 overturns it. We therefore affirm the sentence imposed by the
district court below.
III. CONCLUSION
As Diaz cannot meet the requirements of plain error review or,
by extension, extraordinary circumstances review, his sentence is
AFFIRMED.