USA v. Facundo Sebastian Diaz

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12790
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FACUNDO SEBASTIAN DIAZ,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cr-60026-RS-1
____________________
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2 Opinion of the Court 21-12790
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Facundo Sebastian Diaz appeals his sentence of 151 months’
imprisonment for attempting to persuade a minor to engage in il-
licit sexual activity. He argues that the district court erred by en-
hancing his sentence pursuant to U.S.S.G. § 4B1.5(b)(1) for engag-
ing in a pattern of activity involving prohibited sexual conduct after
he objected to the factual basis for the enhancement and the gov-
ernment did not respond with any evidence. Because the govern-
ment did not present any evidence to support the § 4B1.5(b)(1) en-
hancement, we agree with Mr. Diaz and remand for resentencing
without the enhancement.
I
Once a defendant objects to a fact contained in the PSI used
to enhance his sentence, the government bears the burden of prov-
ing that fact by a preponderance of the evidence.
See United States
v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). The preponder-
ance standard is not toothless, and the court must ensure that the
government carries its burden by presenting reliable and specific
evidence.
See id. “[A]bsent a stipulation or agreement between
the parties, an attorney’s factual assertions at a sentencing hearing
do not constitute evidence that a district court can rely on.”
United
States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013).
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21-12790 Opinion of the Court 3
II
The presentence investigation report prepared by the proba-
tion office recommended a five-level enhancement under U.S.S.G.
§ 4B1.5(b)(1) because Mr. Diaz had engaged in a pattern of activity
involving prohibited sexual conduct. The report stated that when
Mr. Diaz had previously been arrested in 2018 for possession of co-
deine and cannabis, he was found in the back seat of a car with a
16-year-old girl. Mr. Diaz, according to the report, told the police
that the two were “looking for a place to get intimate.” And the
minor told the police that she had met Mr. Diaz on a teen dating
application and that they had engaged in sexual activity on three
occasions. The 2018 case against Mr. Diaz, however, was never
pursued. According to the report, the minor’s parents did not wish
to press charges.
See Presentence Investigation Report at ¶ 40.
Before the sentencing hearing, Mr. Diaz filed written objec-
tions to the presentence investigation report. He argued that, for
legal reasons, the § 4B1.5(b)(1) enhancement did not apply to the
conduct alleged in ¶ 40 of the report.
See D.E. 44 at 2-4. As relevant
here, he also objected to the “factual assertions contained in” ¶ 40
of the report.
See id. at 5.
When the government responded to Mr. Diaz’s objections,
it addressed his legal arguments against the application of §
4B1.5(b)(1). But it did not say anything about his factual objection
to ¶ 40 of the presentence investigation report.
See D.E. 47 at 2-5.
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4 Opinion of the Court 21-12790
At the sentencing hearing, Mr. Diaz again expressly objected
to the facts alleged in ¶ 40 of the presentence investigation report,
i.e., the facts used to support the five-level enhancement under §
4B1.5(b)(1).
See D.E. 59 at 4. When the government responded to
this (and several other) objections at the hearing, it told the district
court that it was going to rely on its written submission.
See id. at
6. Significantly, the government did not present any evidence at
the hearing to support the § 4B1.5(b)(1) enhancement.
The district court noted Mr. Diaz’s objections. Although it
did not make an express ruling on the objections, the court implic-
itly overruled them because it adopted the advisory guideline range
set out in the presentence investigation report, and imposed a sen-
tence of 151 months at the bottom of that range.
See id. at 6, 12.
III
The government concedes procedural error as to the appli-
cation of the five-level § 4B1.5(b)(1) enhancement and says that we
should vacate Mr.Diaz’s sentence.
See Govt.’s Br. at 7-8. We agree
with that concession, but for a different reason than the govern-
ment.
The problem is not just that the district court failed to make
any factual findings about Mr. Diaz’s alleged conduct in 2018; it is,
more fundamentally, that the government did not present any ev-
idence to support what was set out in ¶ 40 of the presentence in-
vestigation report. Mr. Diaz objected to the factual basis for the
enhancement, both in his written objections to the presentence
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21-12790 Opinion of the Court 5
investigation report and orally at the sentencing hearing. The gov-
ernment, which had the burden of producing evidence to establish
the facts alleged in ¶ 40 of the report,
see Martinez, 584 F.3d at 1287,
did not present any witnesses or documents. As a result, there was
no factual basis whatsoever for the enhancement. We therefore
vacate Mr. Diaz’s sentence and remand for resentencing without
the enhancement.
The government requests that it be given an opportunity on
remand to present evidence to support the § 4B1.5(b)(1) enhance-
ment. As we did in
Washington, 714 F.3d at 1361, we deny the
government’s request. “Nothing prevented the government—
which was aware of [Mr. Diaz’s] objection—from putting on evi-
dence concerning [Mr. Diaz’s alleged conduct in 2018], and a party
who bears the burden on a contested sentencing issue will gener-
ally not get to try again on remand if its evidence is found insuffi-
cient on appeal.”
Id. at 1362. Although we have the discretion to
allow the introduction of evidence on remand, that course is not
warranted here. Mr. Diaz’s factual objection was clear and une-
quivocal, and the government nevertheless failed to “present any
evidence” about Mr. Diaz’s alleged conduct in 2018.
See id.
One further matter warrants discussion. We may
sua sponte
note clerical errors in the judgment,
see United States v. Massey,
443 F.3d 814, 822 (11th Cir. 2006), and we do so here. Mr. Diaz was
indicted for attempting to induce a minor to engage in illicit sexual
activity in violation of 18 U.S.C. § 2422(b). The judgment, how-
ever, references § 2422(B) rather than § 2422(b) and does not
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6 Opinion of the Court 21-12790
indicate that Mr. Diaz was charged with an attempt. Thus, when
Mr. Diaz is resentenced, the district court should ensure that the
judgment correctly sets out the offense of conviction.
IV
We vacate Mr. Diaz’s sentence and remand for resentencing
without application of the five-level § 4B1.5(b)(1) enhancement.
VACATED AND REMANDED.
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