Cody Joseph Diaz v. United States

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Cody Joseph DIAZ, Petitioner-Appellant v. UNITED STATES of America, Respondent-Appellee

No. 16-3160

United States Court of Appeals, Eighth Circuit

July 10, 2017

862 F.3d 1120

Submitted: February 10, 2017

significantly obstructed the government‘s investigation or prosecution, and Montanari does not contend otherwise. If Montanari had not misled McDaniel by claiming ignorance of the nonpayment of taxes and by stating that his companies were in poor financial condition, the IRS would have known or strongly suspected that he was willfully avoiding the payment of taxes. A truthful Form 433-A also would have alerted the IRS to the Bella Luca account and raised suspicion about tax evasion. Montanari‘s false statement to Shoup also hindered the government‘s investigation by implying that there was no conscious avoidance of taxes and discouraging further scrutiny. Taking all of Montanari‘s false statements together, the district court did not clearly err in concluding that he significantly obstructed the government‘s investigation or prosecution of his offense.

Montanari‘s third complaint about the obstruction adjustment is that the district court relied on false statements that were too remote from any potential criminal investigation. Montanari‘s false statements to Agent Shoup, however, came after the IRS opened a criminal investigation into Montanari‘s activities. Montanari‘s statements to revenue officer McDaniel in 2010 and his Form 433-A filed in June 2011 did precede the criminal investigation. But obstructive conduct that occurs prior to the start of an investigation may justify an adjustment if “the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction.” USSG § 3C1.1, comment. (n.1). There was a sufficient basis for the court to conclude that Montanari‘s statements to McDaniel and his false Form 433-A met this standard, because they were designed to thwart an investigation into the unpaid taxes owed by Emlyn Coal and Montie‘s. The district court did not clearly err in applying the two-level adjustment for obstruction of justice.

Montanari next disputes the two-level specific offense characteristic under § 2T1.1(b)(1) for failing to report a source of income exceeding $10,000 from criminal activity. On appeal, the government acknowledges that it did not establish by sufficient evidence that Montanari failed to pay taxes on the $100,000 that he obtained through the fraudulent bulldozer transaction. We accept the government‘s concession and therefore conclude that the district court should resentence Montanari. The court should consider a recalculated advisory guideline range that does not rely on this specific offense characteristic, including any effect that it has on the “grouping” rules under USSG § 3D1.2(c).

* * *

For the foregoing reasons, we affirm Montanari‘s conviction, vacate the sentence, and remand the case for resentencing.

Counsel who presented argument on behalf of the appellant was Steven James Wright, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Lisa D. Kirkpatrick, AUSA, of Saint Paul, MN. The following attorney(s) appeared on the appellee brief; LeeAnn K. Bell, AUSA, of Minneapolis, MN.

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

Cody Joseph Diaz carried a sawed-off shotgun into a liquor store, firing a round as he entered the store that passed through a wall and shattered a mirror in the gym next door where two people were working out. Diaz ordered the store clerk to empty the cash register and left the store with $600 cash and several bottles of liquor. Police officers soon arrived. Diaz dropped the money and ran, tossing the shotgun into a snowbank. He fled to a nearby rooftop where the officers took him into custody. A grand jury charged that Diaz “did knowingly use, carry and discharge a firearm ... during and in relation to a crime of violence ... specifically, the armed robbery of J‘s Liquors,” in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Diaz pleaded guilty. In February 2012, the district court¹ sentenced him to ten years in prison, the mandatory minimum sentence “if the firearm is discharged.” Diaz did not appeal.

In June 2016, Diaz filed this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. To avoid the one-year statute of limitations, Diaz claimed that the right to have his § 924(c) sentence vacated was initially recognized by the Supreme Court‘s retroactive decision in

Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which declared unconstitutional the “residual clause” in § 924(e)(2)(B)(ii), part of the Armed Career Criminal Act‘s definition of the term “violent felony.” The district court denied the motion but issued a certificate of appealability because of uncertainty regarding whether the ruling in Johnson applies to § 924(c) sentence enhancements. Diaz appeals. Reviewing this issue of law de novo, we affirm.

As applied to Diaz‘s offense, § 924(c)(1)(A)(iii) provides that “any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm ... shall, in addition to the punishment provided for such crime of violence ... (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” “Crime of violence” is defined in § 924(c)(3) as a felony offense that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Diaz‘s indictment charged him with committing Hobbs Act Robbery, 18 U.S.C. § 1951(a), as the crime of violence. The Hobbs Act defines robbery to include “the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury ... to his person or property.” § 1951(b).

On appeal, Diaz argues that the “substantial risk” provision in § 924(c)(3)(B) is similar to the residual clause at issue in Johnson and therefore is unconstitutionally vague. After the district court denied Diaz‘s § 2255 motion, we joined the majority of circuits that have addressed this question and held “that Johnson does not render § 924(c)(3)(B) unconstitutionally vague.”

United States v. Prickett, 839 F.3d 697, 700 (8th Cir. 2016), petition for cert. filed, No. 16-7373 (Dec. 30, 2016).²

The Supreme Court has granted certiorari to determine whether Johnson affects the validity of 18 U.S.C. § 16(b), a statute with language similar to § 924(c)(3)(B).

Lynch v. Dimaya, — U.S. —, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016), granting review of

Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). But we conclude the Court‘s decision in Dimaya will not affect Diaz‘s appeal. Even if § 924(c)(3)(B) is unconstitutionally vague after Johnson, Diaz‘s claim for § 2255 relief is timely only if Johnson also invalidates the use-or-threatened-use-of-force clause in § 924(c)(3)(A). No circuit court has held that Johnson cast doubt on the validity of statutes that enhance the punishment for crimes involving the use of force. Cf.

Leocal v. Ashcroft, 543 U.S. 1, 8-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

Diaz argues that Hobbs Act Robbery does not qualify as a crime of violence under § 924(c)(3)(A). We reject that contention. Like other circuits, we have expressly held that “Hobbs Act robbery has ‘as an element the use, attempted use, or threatened use of physical force against the person of another,‘” the operative term in § 924(c)(3)(A).

United States v. House, 825 F.3d 381, 387 (8th Cir. 2016) (citation omitted), cert. denied,

— U.S. —, 137 S.Ct. 1124, 197 L.Ed.2d 223 (2017). That decision is binding on our panel, as is Prickett.

The district court‘s Amended Order and Judgment dated July 19, 2016 is affirmed.

JAMES B. LOKEN

UNITED STATES CIRCUIT JUDGE

Notes

1

The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.

2

Accord

United States v. Davis, 677 Fed. Appx. 933, at *2 (5th Cir. 2017), petition for cert. filed, No. 16-8997 (May 5, 2017);

United States v. Hill, 832 F.3d 135, 145-50 (2d Cir. 2016);

United States v. Taylor, 814 F.3d 340, 375-79 (6th Cir. 2016), petition for cert. filed, No. 16-6392 (Oct. 12, 2016); contra

United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016).

Case Details

Case Name: Cody Joseph Diaz v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 10, 2017

Citation: 863 F.3d 781

Docket Number: 16-3160

Court Abbreviation: 8th Cir.