United States v. Aguilar-Diaz

III. Conclusion America, UNITED STATES of reasons, we AFFIRM foregoing For the Plaintiff-Appellee, the court. of district

the decision MOORE, Circuit KAREN NELSON AGUILAR-DIAZ, Defendant- Mario concurring dissenting in part Judge, Appellant. part. No. 10-3808. majority join opinion,

I Part II.A. of the concluding that statute limitations Appeals, United States 783’s claim because not bar Local Sixth Circuit. unequivocably re- Anheuser-Busch did Nov. 2010. Argued: than six months fuse to arbitrate more complaint. Local 783 filed before and Filed: Dec. Decided majority from Part II.B. dissent arbitrability regarding the majority proper-

grievance. arbitration clause is

ly holds and that “arbitration

“broadly written” in this case if the be denied

should expressly griev- excluded the

parties arbitration,” majority incor-

ance arbitration

rectly require fails to implications concerning

grievance agreement’s pro- bargaining

the collective 11(b) regarding seniority

vision Section interrelationship between

rights. 11(b) seniority rights and the

CBA Plan is matter comes within

Pension clause, scope of broad arbitration that CBA 24 of the facts

irrespective Plan and

references Pension dispute-resolu- Plan own

Pension has its there a rela-

tion mechanism. Whether 11(b) and the

tionship between CBA claim issue here what the

pension relationship may nature of that

exact issues for arbitra- quintessentially reason, I respect- to decide. For this

tor of the majori- from Part II.B.

fully dissent

ty’s opinion. Cleveland, Attorney,

sistant United States Ohio, Appellee. for BATCHELDER, Judge; Before: Chief KETHLEDGE, ROGERS Circuit Judges.

ROGERS, J., delivered the court, KETHLEDGE, J., in which BATCHELDER, 271), joined. (p. C.J. a separate concurring opinion. delivered OPINION ROGERS, Judge. Circuit advisory guidelines sentencing range for criminal defendant Mario the district court be- low on a relied state conviction that Aguilar-Diaz contends should have been disregarded because the conviction was than merely void rather voidable under a line of Ohio case law. Aguilar-Diaz’s challenge amounts to a col- lateral attack on his state conviction that is permitted by guidelines or federal law, his case sentence was procedurally proper.

Aguilar-Diaz pled guilty charge of illegal reentry deportation, a violation of 8 U.S.C. 1326. Under the federal sentencing guidelines, the base offense lev- 2L1.2(a). el for this crime is 8. U.S.S.G. offense level increased by 4 based on a 2003 Ohio convic- forgery tion for and tampering with rec- Warner, ARGUED: Carlos Office ords, 2L1.2(b)(l)(D), U.S.S.G. and then Defender, Akron, Ohio, Federal Public 2by acceptance reduced based on of re- Appellant. Ranke, Daniel R. Assistant sponsibility. was, His final Cleveland, offense level Ohio, United Attorney, States therefore, Appellee. ON sentence result- BRIEF: War- Carlos ner, Defender, Office of the Federal conviction also Public result- Akron, Ohio, Lazarus, Jeffrey history B. ed two additional points Office of Defender, Cleveland, the Federal Public for Aguilar-Diaz, which counsel argues Ohio, Ranke, for Appellant. Daniel R. As- elevated from criminal his- sentencing hearing and be provided at of I to II.1 With a base tory category history judgment entry. final category included level 10 and offense advisory guidelines Jordan, II, Aguilar-Diaz’s State (2004). § 864, 5A. 8 to 14 months. U.S.S.G. The range was N.E.2d 869 that the circum- judge stated The district the term of specify court must whether departure from not did warrant mandatory, stances post-release imposed and a sen- guidelines range (or poten- length of the term maximum 11 months. tence of discretionary), possi- tial if and length post-release consequences violating ble Aguilar-Diaz argued sentencing, At Rev.Code control. Ohio conviction should that his 2929.19(B)(3)(c)-(e); § Rev.Code Ohio in the calculation of considered been 2967.28(B)-(C). range guidelines applicable his void. The district court that conviction is Aguilar-Diaz’s sentencing entry states: impermissi as an rejected argument given rights notice of appellate “Defendant conviction, a state collateral attack on ble post and release con- under R.C. 2953.08 States, v. 511 Custis United prohibited 2929.19(B)(3) under R.C. and trol notice 1732, 485, 517 114 S.Ct. 128 L.Ed.2d U.S. entry R.17-1 at R.C. 2967.28.” 1-2. (1994). Had court not considered any as to provide does not information conviction, he Aguilar-Diaz’s forgery mandatory post-release whether control is offense of 6 have faced a base level would length discretionary, post-release or category of history a criminal either and control, violation consequences or the of a guidelines range II. His recommended control. Be- terms Catego for have been 0 to 6 months would sentencing entry not in- cause the II. Category 1-7 ry I and months information, Aguilar- required clude this forgery argues that Diaz that his sentence is void ab contends Ohio defines is void because law have been initio therefore should not including finding as both a conviction guidelines considered in He that he guilt and sentence. contends range. have an conviction because the cannot Ohio properly impose Ohio trial did string A of recent Ohio sentencing, part control as supports proposition Court decisions thereby his sentence void making comply fail to that Ohio sentences that one of a convic- eliminating of the elements statutory requirements impos with the tion. post-release control are void. See Jor 871; dan, Simp State v. 817 N.E.2d statute, prison By all Ohio sen 420, 568, kins, 117 St.3d N.E.2d 884 must include tences for classified felonies Boswell, (2008); 121 v. 572 State to the will or notice offender (2009); 575, 422, 906 N.E.2d 423 St.3d post-release control be 173, 124 920 Singleton, leaving prison. Rev.Code (2009). all of Underlying 2929.19(B)(3)(c)-(e); N.E.2d Ohio Rev.Code 2967.28(B)-(C). Beasley, notice these cases is State This must points point sentencing hearing, have two and would there- would still 1. At one in the ap- judge, prosecutor, any Category and defense counsel all be in II. R.31 at fore in event agree peared even if the con- ruling, we light present of our 44-45. determining were viction not considered need not resolve this difference. history points, (1984) St.3d (per e.g., N.E.2d 774 cu- Simpkins, 884 N.E.2d and those riam), in which the trial court disregarded in which a defendant who had completed statutory requirement of a mandatory prison term was sanctioned for violat- minimum sentence and ing post-release control that was never only a fíne on the defendant. The state see, properly imposed, e.g., Hernandez v. sought Beasley to have resentenced in Kelly, 108 Ohio St.3d 844 N.E.2d 301 statute, compliance with the Beasley (2006) act curiam). (per Simpkins states the said right would violate her to be free from rule that emerged from the two lines of jeopardy. double Id. at 774-75. The cases: court “[a]ny attempt by concluded that in cases which a [I]n defendant is con- court to disregard statutory requirements of, to, victed pleads guilty an offense imposing when a sentence renders the at- postrelease for which required control is tempted nullity sentence a or void.” Id. at but not properly included in the sen- void, 775. Because the sentence was tence, void, the sentence is and the state jeopardy attach, held that did not is entitled to a sentencing new hearing and resentencing Beasley did not consti- postrelease to have jeopardy. tute double Id. the defendant unless the defendant has Supreme The Ohio applied Beas- completed his sentence. ley in control context in Therefore, 884 N.E.2d at 572. for defen- Jordan, a in case which trial court had who, Aguilar-Diaz, dants like completed notify failed to the defendants about post- their prison terms before the sentencing release control at their sentencing hear- court conducted a de novo resentencing, ings. 817 N.E.2d at 871-72. The state the Ohio Court has said that argued that if lack of notice amounted to post-release control cannot be enforced be- error, found, as the court ultimately cause there was no sentence on which to proper remedy was a remand for resen- justify parole board’s imposition of

tencing. Id. at 870. The defendants con- Singleton, control. N.E.2d 964.2 proper tended that the remedy would be to control eliminated from The logic underlying these Ohio de their Relying sentences. Id. on Beasley, appears cisions to assume that while the the court concluded that the original sen- void, sentence be underlying de void, tences were and resentencing was termination of guilt is not void. Otherwise permissible. Id. at 872. it would make no sense for there to be a Subsequent Ohio involving post- cases resentencing in Simpkins. cases like Sim release control sentencing fall ilarly, Hernandez, errors into in cases like the void two categories: broad those in which the nature of the imposing post-re sentence sought state to correct a sentencing error lease control subsequent invalidates a con while the see, defendant was in prison, still control, viction for violating that but this defendants, summary applies 2. This like Rev.Code leg- 2929.191. the state originally who were attempted sentenced provision islature to make this ret- 11, 2006, July roactive, before July 2006. On Ohio Court held that it legislature attempted Ohio eliminate the apply could prospectively from the date problems arising inadequate post-re- Singleton, of enactment. 920 N.E.2d at 964. lease control revising notices its statute to Because was sentenced for his allow 11, 2006, courts to correct those deficient felony prior July it is not entries, through pro tences nunc tunc necessary rather explore significance to further than de resentencing hearings. novo of this statute. logic invalida- nal sentence meant Biondo would “have no by any require original underlying conviction. record of conviction for the crime to which tion guilt he admitted 2001.” Id. at *8. consistent with understanding This Instead, the court found cases that have the few lower court term Biondo had served could seen “as these considered the interaction between itself,” unto held a sentence that “all aspects sentences and other void will properly imposed sanctions survive Patterson, law. challenge.” notification successful Id. operating a charged was with defendant the influence motor vehicle while under In the instant case it is not neces (“OVI”). 09CA0014-M, WL No. sary for us to determine whether Aguilar- 2009). Be- Ct.App. Dec. or, Diaz’s conviction is void prior felony had a convic- cause Patterson is, if it whether it would still be valid for alco- driving under the influence of tion sentencing purposes. be This is (“DUI”), charge OVI elevated hol cause the federal proceeding is felony. ar- third-degree Patterson the forum to proper challenge not that that prior the trial court gued before Custis, conviction. the Court felony void for lack of was DUI collaterally that not held a defendant could notification, and there- a court attack conviction used for a basis for elevat- proper fore did not form purposes of enhancement under *1. trial charge. Id. at The OVI matter, Armed Career Criminal Act hearing a on the noted unless court held challenge interesting, was and ex- was based on a violation of the that issue that to at pressed hope right a it would considered counsel. 511 U.S. at *6 by the of See id. Appeals. holding S.Ct. relates (concurring opinion). Ultimately, howev- to enhancement under the Armed Career er, the trial court determined that Patter- Act, there language Criminal in the prior not son’s conviction was void and to opinion support the somewhat broader elevating could serve as basis for that a proposition defendant cannot attack charge. Id. *1. The Ohio Court OVI any purpose a state conviction used for on Appeals disposed procedural the case sentencing proceedings unless did not grounds question address the providing identifies a statute for collateral post- sentences void for lack of whether attack or claims a to right denial properly release control considered (recog counsel. Id. at 114 S.Ct. 1732 assessing subsequent charges. Id. at *3. nizing Congress that specifically author ized certain collateral attacks 21 U.S.C. decided, day theOn same Patterson was 851(c)); (“Cus id. at 114 S.Ct. 1732 an appellate another Ohio court issued right tis invites us to extend to attack addressing whether defendant collaterally prior convictions used for sen whose sentence had voided for lack of been beyond right tence enhancement to post-release control notification was still appointed counsel.... We decline to the fine court to costs so.”). Biondo, recognized do This court has conviction. State v. just not No.2009-P-0009, applies Custis to enhancements 2009 WL 5176657 31, 2009) Act, under Armed Career Criminal but Ct.App. (appeal accept- not Ohio). sentencing also to enhancements under the by ed for review Court of Bonds, rejected guidelines. Appeals The Court of as absurd United States (6th Cir.1995). 184, 186 possibility voiding origi- F.3d Aguilar-Diaz argues that Custis does held that a prior defendant’s claim that a not limit collateral at sentencing Kentucky attacks to conviction was invalid and there- those based in fore should not be statute or on the used for sentencing denial of Custis. purposes precluded by was right Custis counsel. He reads emphasized that “a defendant in a principle stand for the that “sentencing sentencing proceeding may collaterally courts employ sentencing en- challenge the use of convictions or hancements based vacated or void state parole revocations for purposes of criminal convictions.” The argument basis of this history calculation challenge unless the Custis language noting upon alleged based right violation of the alleged “[n]one [Custis’s] constitutional to counsel.” Id. at 767. The court noted violations jurisdic- rises to the level of a that Kentucky law did appear support tional defect resulting from the failure to Lalonde’s contention that his state appoint counsel at all.” 511 U.S. at conviction was invalid. since his 114 S.Ct. 1732. Aguilar-Diaz argues that conviction had not been declared invalid language permits any challenge based any court, Kentucky it properly con- jurisdictional on a defect. argues He then sidered sentencing guidelines purposes. that the sentencing court lacked sub- Id. at 768. Lalonde’s claim is ject-matter jurisdiction case, in his citing a quite similar to the claim in this case. state court decision that defines a void our precedent, therefore, Under Aguilar- sentence as “one that a court imposes de- precluded Diaz’s claim is as a collateral spite lacking subject-matter jurisdiction or attack on a state conviction. act,” the authority to Payne, 114 If Aguilar-Diaz believes he has a valid 502, 306, (2007). 873 N.E.2d 311 claim that his state truly conviction is void However, Aguilar-Diaz does not explain entirety, its he pursue could that claim why his sentence is void for lack of sub- through state channels for seeking post- ject-matter jurisdiction rather than the Custis, 497, relief.3 511 U.S. at sentencing court’s lack authority im- to 114 successful, S.Ct. 1732. If he could pose a sentence that fails to comply with petition then the district court to review statutory requirements. His contention his in light sentence of the state court that the trial court subject-matter lacked If, judgment. Aguilar-Diaz as argues, jurisdiction over a criminal sentencing is post-conviction state relief is not now avail- unsupported implausible. able himto because it is as if his sentence Regardless of jurisdic- the merits of existed, never appears it simply he is fore- argument, tion Aguilar-Diaz misreads closed from attacking his conviction. See Custis States, Daniels v. United this court’s precedent by 374, stat- 532 U.S. 383-84, 1578, Custis ing that permits S.Ct. non-statutory col- L.Ed.2d 590 lateral beyond attacks right-to-counsel (2001).

claims. This court Custis interpreted has Aguilar-Diaz notes Supreme that as recognizing right-to-counsel violations Court acknowledged in Daniels that “there as the sole non-statutory grounds on which may be rare cases in which no channel of a collateral attack be entertained at review actually available to a defen- Lalonde, United States v. sentencing. respect dant with prior conviction, due 750, (6th 509 F.3d Cir.2007), 767-68 Daniels, we to no fault of his own.” 532 U.S. 3. For post-conviction pro- completing However, his federal sentence. ceedings essentially hypothetical now relatively the fact of his short sentence does avenue of relief because he is so change close to analysis. law, Presumably, guity in Ohio case without which he 121 S.Ct. at that to conclude some asking simpler. this court The Ohio case would be much must made available collateral forum clear Supreme Court makes circumstances. under those post-release tence control without of- not hold that such cases Daniels did void; clarify, failed that court has to collaterally attacking a grounds for fered however, exactly portion which of the sen- during state conviction void, why tence is or the court even uses Daniels, 383-84, at 532 U.S. proceedings. me, appears at It to the term “void” all. it The Court found unnec- 121 S.Ct. 1578. reviewing Court’s question, to essary resolve subject, cases that the trial court’s had been available to appeal channels of requirements follow Ohio’s failure to too, it Id. Here Daniels at one time. imposing post-release control renders opportu- Aguilar-Diaz never had void; post-release it control element sentence, but nity challenge finding guilt does not eliminate the no to. he rather that he had reason Had prison term sentence. See challenge prison, raised such a while Biondo, 5176657, at 2009 WL *8 applied ju- simply courts would 2009) (“[Notwithstanding Ct.App. dicially established corrective mechanisms regular improp- court’s conclusion that impose control. See State post-release er control notification func- Zaleski, 111 Ohio rel. Cruzado v. St.3d ex sentence, appears tions it that a to void (2006). There 856 N.E.2d can be ... as term seen a sentence fore, it would have been unwise while (and, per- unto itself.... The sentence to raise the claim conviction) haps, importantly, more time, impossible. it not have been would ”). It he, helpful would be if the release, made survives.... improperly upon Were (and say it is Court would as much was), would have been not clear that explicitly. challenge

able to restrictions of period. during fact did not raise challenges at those times does not

these now be to do so in the mean should able America, STATES of UNITED court. or not state-based district Whether Plaintiff-Appellee, currently Aguilar- available to relief Diaz, attacking precluded in the federal felony I; MONEA FAMILY Brooke TRUST

tencing proceeding. Monea; Monea, Blake Interested claim that his Because Parties-Appellants. improperly conviction was No. 09-3730. applicable guide- used Appeals, United States Court of range prohibited lines collateral attack Sixth Circuit. conviction, a state sentence imposed by the district court is affirmed. Argued: July 2010. and Filed: Nov. 2010. Decided BATCHELDER,

ALICE M. Chief Rehearing Judge, concurring. Denied full, I join majority opinion separately highlight write ambi-

Case Details

Case Name: United States v. Aguilar-Diaz

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 2, 2010

Citation: 626 F.3d 265

Docket Number: 10-3808

Court Abbreviation: 6th Cir.