UNITED STATES OF AMERICA v. SYLVIA DIAZ
No. 19-11112
United States Court of Appeals for the Fifth Circuit
March 1, 2021
Lyle W. Cayce, Clerk
Appeal from the United States District Court for the Northern District of Texas No. 3:18-CR-293-2
Before HIGGINBOTHAM, SMITH, and DENNIS, Circuit Judges.
Sylvia Diaz (“Diaz“) pleaded guilty of conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement. She asserts that her guilty plea was not knowing and voluntary, that she was vindictively or selectively prosecuted, and that her trial counsel was constitutionally ineffective. We affirm the conviction and dismiss without prejudice the claim of ineffective assistance of counsel (“IAC“).
I.
Diaz and her husband, Jose Diaz (“Jose“), served as illegal strawpurchasers in a weapons-trafficking arrangement. They purchased firearms from commercial gun sellers and delivered them to a third party, Jorge, who would then traffic the weapons into Mexico. Agents working for the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“) caught on to the scheme and approached the Diazes. Jose admitted that they were involved in the straw-purchaser arrangement but clarified that they were not personally trafficking weapons into Mexico. ATF agents informed the Diazes that what they were doing was illegal and produced a cease-and-desist letter, which the Diazes signed.
ATF agents also sought Jose‘s cooperation for their investigation into Jorge. Although Jose expressed fear for his family‘s safety, he initially agreed to cooperate. He provided the agents with Jorge‘s telephone number and informed them of an upcoming meeting the Diazes had scheduled with Jorge, at which the Diazes were to deliver more firearms to him. Jose then agreed to meet with the agents two days later to discuss the investigation further. But before that meeting took place, the Diaz family fled to Mexico. A few months later, the federal government issued an arrest warrant for Diaz. She was arrested roughly eight months
Diaz was indicted for conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement, in violation of
II.
Diaz contends that “[a] defendant cannot ‘knowingly violate’
Because Diaz raises that objection for the first time on appeal, we review only for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). Plain error exists
A.
A guilty plea “must be voluntary, knowing, and intelligent.” United States v. Lord, 915 F.3d 1009, 1016 (5th Cir.), cert. denied, 140 S. Ct. 320 (2019). “[T]he defendant must be instructed in open court on the nature of the charge to which the plea is offered ....” United States v. Broce, 488 U.S. 563, 570 (1989) (quotation omitted). A guilty plea “cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts ....” Id. (quotation omitted).
Section 924 provides the penalty for those who commit any one of the unlawful acts described in
1.
Before we reach the requirements to convict under
The Court reasoned that the scienter requirement in
2.
Diaz seeks to extend Rehaif‘s reasoning to
More fundamentally, Rehaif dealt with “a prosecution under
In any event, even after Rehaif, and even for prosecutions under
As one might expect, that characterization tracks closely with the Fifth Circuit Pattern Jury Instructions for prosecutions under
First: That the defendant made a false [fictitious] oral [written] statement; Second: That the defendant knew the statement was false; Third: That the statement was made in connection with the acquisition of a firearm [ammunition] from a licensed firearm [ammunitions] dealer; Fourth: That the statement was intended or was likely to deceive a licensed firearm [ammunitions] dealer; and Fifth: That the alleged false statement was material to the lawfulness of the sale or disposition of the firearm [ammunition].
PATTERN JURY INSTRUCTIONS: FIFTH CIRCUIT, CRIMINAL CASES § 2.43B (2019) (brackets in original).
Thus, neither Fifth Circuit precedent nor the Pattern Jury Instructions include the knowledge requirement that Diaz seeks to impose. Moreover, supposing, for argument‘s sake, that Rehaif imposed a heightened scienter requirement for prosecutions under
Diaz claims selective or vindictive prosecution, averring that the government prosecuted her in retaliation only after she and her husband had refused to cooperate in the ATF investigation. That claim is further bolstered by the fact that, as Diaz puts it, “the Government virtually never, if ever, prosecutes people who abide by ... cease and desist letters.”
A.
As an initial matter, we must determine whether Diaz forfeited her right to raise this issue on appeal. Diaz attempts to circumvent the appeal waiver by reframing her claims. In her view, because she “should not have been prosecuted at all due to prosecutorial vindictiveness or selective prosecution, then any sentence [she] received would exceed the statutory maximum.”3 That theory is flawed.
We “determine whether the waiver applies to the circumstances at hand[] based on the plain language of the plea agreement.” United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). And we construe the “language in the appellate waiver ... in accord with the intent of the parties at the time the plea agreement was executed.” United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (per curiam). “In the absence of evidence that the parties intended ... a specialized, non-natural definition, we apply the term‘s usual and ordinary meaning ....” United States v. Bond, 414 F.3d 542, 545 (5th Cir. 2005). The “natural and ordinary meaning” of
“the statutory maximum” is “the upper limit of punishment that Congress has legislatively specified for violations of a statute.” Cortez, 413 F.3d at 503 (quotation omitted).
Diaz pleaded guilty of conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement in violation of
Thus, “based on the plain language of the plea agreement,” McKinney, 406 F.3d at 746, only if the district court sentenced Diaz to more than 60 months would the exception to the appellate waiver apply. Because she was sentenced to only 58 months, the exception is inapplicable.
IV.
Diaz claims that her trial counsel was constitutionally ineffective. Because, as Diaz describes it, individuals who receive and abide by ATF cease-and-desist letters are rarely, if ever, prosecuted, she asserts that counsel‘s failure to investigate and mount a vindictive- or selective-prosecution defense on those grounds constituted deficient performance. And, according to her, the deficiency prejudiced her because
Although this appeal waiver specifically excepts the right to bring an IAC claim, the general rule is that IAC claims “should not be litigated on direct appeal, unless they were previously presented to the trial court. It is only in rare cases in which the record allows a reviewing court to fairly evaluate the merits of the claim that we will consider” it. United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (cleaned up). Diaz submits that hers is one of those “rare cases.” We disagree.
“[T]he exception to our general rule of non-review is typically satisfied only where the actual claim was raised and developed in a post-trial motion to the district court.”5 In some circumstances, even if no hearing or post-trial motion was held, the record may “provide sufficient detail about trial counsel‘s conduct and motivations to allow this court to make a fair evaluation of the merits of the defendant‘s claim.” United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (per curiam) (cleaned up).
Diaz does not assert that the IAC claim “was raised and developed in a post-trial motion to the district court.” Stevens, 487 F.3d at 245. Nor does she contend that the record provides any “detail about trial counsel‘s conduct and motivations ....” United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007) (per curiam).
Instead, Diaz relies on the following: Although the presentence investigation report refers to the cease-and-desist letter, the letter is not in the record, there is no discovery request for it, and there is no motion to dismiss based on vindictive or selective prosecution. But those facts fail to establish whether trial counsel was aware of the letter, whether he investigated the frequency with which individuals receiving such letters are prosecuted, or
whether he determined, in his professional judgment, that Diaz would be better served by not pressing those claims and instead seeking a more favorable plea agreement.6
Diaz counters that, “[a]t a minimum, a copy of the cease and desist letter should have been ... reviewed ... to determine whether it contained any express or implied agreements not to prosecute her ....” But that is mere speculation. She cannot point to any evidence to establish that trial counsel never reviewed the letter.
“[B]ecause the district court did not hold a hearing and the record does not provide sufficient detail about trial counsel‘s conduct and motivations to allow this court to make a fair evaluation” of Diaz‘s claim, it “is not ripe for review ....” Gulley, 526 F.3d at 821 (quotation omitted). Therefore, we “decline to consider the issue without prejudice to [Diaz‘s] right to raise it in a subsequent proceeding.” Id.
For the reasons explained, Diaz‘s conviction is AFFIRMED, and her claim of IAC is DISMISSED without prejudice.