United States v. Santos Portillo

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2819
___________
United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Jose G. Diaz-Diaz, * [UNPUBLISHED]
*
Defendant-Appellant. *
___________
Submitted: May 11, 2004
Filed: August 19, 2004
___________
Before LOKEN, Chief Judge, BRIGHT, and SMITH, Circuit Judges.
___________
PER CURIAM.
Jose G. Diaz-Diaz pled guilty to participation in a conspiracy with intent to
distribute 500 grams or more of a mixture containing methamphetamine. See 21
U.S.C. § 841(a)(1) (making it unlawful “to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a controlled substance”),
§ 841(b)(1)(A)(viii) (setting a mandatory minimum of ten years imprisonment for
distribution of “50 grams or more of methamphetamine, its salts, isomers, and salts
of its isomers or 500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, its salts, isomers, or salts of its isomers”), and § 846
(“Any person who attempts or conspires to commit any offense defined in this

-- 1 of 3 --

-2-
subchapter shall be subject to the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or conspiracy.”). The district
court sentenced him to 210 months, the bottom of the range based on an offense level
of thirty-seven. See U.S.S.G. § 2D1.1. This included a two-level enhancement for
possession of a firearm, see U.S.S.G. § 2D1.1(b)(1), a three-level reduction for
acceptance of responsibility, see U.S.S.G. § 3E1.1, and a drug-quantity calculation
of at least 907 kilograms of methamphetamine. The district court, with the
government’s support, rejected an upward adjustment based on Diaz-Diaz’s alleged
“manager or supervisor” role in the offense. See U.S.S.G. § 3B1.1. The district court
also denied Diaz-Diaz’s motion for a downward departure. Diaz-Diaz had argued for
the departure because he offered to forego procedural protections to which he would
otherwise be entitled prior to his deportation to Mexico upon release from prison.
Diaz-Diaz, having properly objected to the drug quantity calculation and firearms
enhancement and moved for the downward departure during the sentencing
proceedings, now timely raises those issues on appeal.
As the government notes in its brief, the quantity of drugs attributable to Diaz-
Diaz was calculated by the district court, by a preponderance of the evidence. This
quantity exceeded substantially the minimum amount (500 grams of
methamphetamine mixture) necessary to sustain Diaz-Diaz’s guilty plea under the
statutory charge. The district court also found the facts necessary to support the
guidelines enhancement for possession of a firearm.
Because the government presented more-than-adequate evidence to support the
district court’s factual findings about the quantity of drugs attributable to Diaz-Diaz
and the firearm enhancement, we affirm. We also affirm the district court’s decision
not to depart from the guidelines for Diaz-Diaz’s willingness to forego procedural
protections.
AFFIRMED

-- 2 of 3 --

-3-
BRIGHT, Circuit Judge, concurring in part and dissenting in part,
I concur in the determination that the district court did not err in refusing to
downwardly depart from the guidelines. I dissent from the affirmance of Diaz-Diaz’s
sentence as it relates to the sentencing enhancements. Diaz-Diaz has requested to
submit a supplemental brief in light of the constitutional concerns raised by the
Supreme Court’s recent holding in Blakely v. Washington, 542 U.S. __, 124 S.Ct.
2531 (2004). I would vacate Diaz-Diaz’s sentence and remand for further
consideration by the district court.
______________________________

-- 3 of 3 --