U.S. v. Diaz-Clark, No. 01-12343.

• Decision Date: 05 June 2002
• Docket Number: No. 01-12343.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Hector Ramon DIAZ-CLARK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

292 F.3d 1310

UNITED STATES of America, Plaintiff-Appellant, v. Hector Ramon DIAZ-CLARK, Defendant-Appellee.

No. 01-12343.

United States Court of Appeals, Eleventh Circuit.

June 5, 2002.

Anne R. Schultz, Miami, FL, for Plaintiff-Appellant.

Philip Carlton Jr., Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and MARCUS, Circuit Judges, and MIDDLEBROOKS^*, District Judge.

MIDDLEBROOKS, District Judge:

In this appeal, we are presented with the specific question of whether a district court has jurisdiction, after the expiration of the time provided by Rule 35 of the Federal Rules of Criminal Procedure and without any federal habeas corpus petition before it, to reduce a prisoner's sentence based upon its conclusion that the sentence it had originally imposed was erroneous due to a grouping error under the Sentencing Guidelines. Because we conclude that the district court did not have such jurisdiction to modify the original sentence, we reverse, vacate the amended sentence and remand with instructions to reinstate the original sentence.

I. BACKGROUND

The somewhat complicated and lengthy history of this case is as follows. In May of 1991, a federal grand jury sitting in the Southern District of Florida indicted appellee Hector Ramon Diaz-Clark ("Diaz-Clark") on three counts relating to a conspiracy to import cocaine into the United States. This is referred to as the "Miami Case." In June of 1994, Diaz-Clark entered into a written plea agreement with the government and pled guilty to Count I of the Miami Case indictment.

In early 1994, another federal grand jury, this one sitting in the Middle District of Florida, indicted Diaz-Clark for conspiracy to import marijuana into the United States. This is referred to as the "Rule 20 Case" because the case was transferred on February 10, 1995 to the Southern District of Florida pursuant to Rule 20 of the Federal Rules of Criminal Procedure. This case was originally assigned to Judge Lenore Nesbitt, but was soon transferred to Judge Shelby Highsmith, who was handling the Miami Case. Additionally, the government's unopposed motion to transfer was also a motion to consolidate the two cases; although Judge Nesbitt granted the motion to transfer, which Judge Highsmith accepted, the motion to consolidate was never ruled upon.

In January of 1995, the district court held the first of two sentencing hearings in the Miami Case. At the beginning of this hearing, the status of the Rule 20 case was discussed; when the district judge learned that the transfer paperwork in the Rule 20 case had not been completed, he decided to proceed nonetheless with sentencing in the Miami Case. However, the sentencing was continued in order to conduct an evidentiary hearing on a contested issue surrounding Diaz-Clark's involvement in the cocaine conspiracy. Shortly thereafter, the transfer of the Rule 20 Case was completed.

Therefore, as of February 27, 1995, both cases were before a single district judge, from whom this appeal has arisen. On March 3, 1995, the district court called both the Miami Case and the Rule 20 Case, stating that sentencing would be pronounced first in the Miami Case, with the court then taking up the Rule 20 case. After addressing the parties' objections to the Presentence Investigation ("PSI") that had been prepared in the Miami Case, the district court sentenced Diaz-Clark to 168 months' imprisonment, five years' supervised release, and a $50.00 assessment.¹ After the sentence had been pronounced, the court asked if there were any objections to the findings of fact or the manner in which the sentence had been imposed — Diaz-Clark made no objections.

The district court then called the Rule 20 Case. The prosecutor provided the court with a copy of a written plea agreement, with which the court in turn provided the probation officer, asking the probation officer to perform certain Sentencing Guidelines calculations. The court then placed Diaz-Clark under oath and conducted a plea colloquy. The court then accepted Diaz-Clark's guilty plea to Count I of the Rule 20 indictment. When asked about the application of the Sentencing Guidelines, the probation officer, the court, and counsel engaged in a short discussion concerning the court's reasoning behind the order in which the cases were sentenced. Diaz-Clark then waived a PSI, and the court sentenced him to 120 months' imprisonment, five years' supervised release, and a $50.00 assessment with the Rule 20 sentence to run concurrently with the Miami Case sentence. Again the court asked if there were any objections to the findings of fact or the manner in which the sentence had been imposed and again Diaz-Clark made no objections.

Diaz-Clark did not appeal the sentence that had been imposed in either the Miami Case or the Rule 20 Case. However, on April 23, 1997, he filed a petition for a writ of habeas corpus in both cases. In the Miami Case petition, Diaz-Clark argued that he was entitled to habeas relief because of: (1) the disparity between his sentence and those of his co-defendants; (2) the district court's failure properly to consider his alleged abandonment of the conspiracy; (3) the court's failure to sentence him below the guideline range; (4) a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (5) the government's failure to file a substantial assistance motion; and (6) an ineffective assistance of counsel claim, brought against one of Diaz-Clark's two trial attorneys. The petition did not raise the alleged grouping error that is central to this appeal. After the petition had been fully briefed, the magistrate judge issued a report and recommendation which the district court adopted on February 23, 2000, ordering that the petition be denied. The court then denied Diaz-Clark's motion for reconsideration. Diaz-Clark filed a notice of appeal, and the district court subsequently denied his request for a certificate of appealability.

In the Rule 20 habeas petition, Diaz-Clark argued that the sentence should be vacated due to (1) the court's erroneous application of a ten-year mandatory minimum sentence and (2) the government's failure to file a substantial assistance motion. The government conceded that Diaz-Clark's sentence in the Rule 20 Case should not have been subject to the Level 30 ten-year mandatory minimum for 1,000 kilograms or more of marijuana, and therefore agreed that Diaz-Clark should be resentenced in that case. Accordingly, the magistrate judge entered a Report and Recommendation, which the district court then adopted on February 16, 2000, recommending that the habeas petition be granted in part, limited to the issue of resentencing due to the confusion over the mandatory-minimum issue. The resentencing hearing was scheduled for May 2, 2000.

On May 1, 2000, a probation officer advised the district court that in imposing its original sentence in the Rule 20 Case, it should have treated the indictments in that case and the Miami Case as if they were separate counts of conviction contained in the same indictment, therefore sentencing Diaz-Clark under U.S.S.G. § 5G1.2. The Commentary to this Section states in pertinent part: "This section applies to multiple counts of conviction (1) contained in the same indictment or information, or (2) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding." United States Sentencing Commission, Guidelines Manual, § 5G1.2, cmt. (2001). With this in mind, the probation officer recalculated the guidelines level, which resulted in an adjusted offense level of 31 and a criminal history category of I.² The probation officer recommended that these calculations be applied in both the Miami Case and the Rule 20 Case, as in the probation officer's opinion, these cases should have been grouped in the first instance.

The government filed an objection to the probation officer's recommendation, arguing that the Miami Case and Rule 20 Case were "distinct criminal episodes" involving "different co-conspirators for the importation of a different [sic] narcotics at a different location which was [sic] investigated and charged separately in two different districts...." The government contended that resentencing was only appropriate in the Rule 20 Case, and not in the Miami Case, because only the Rule 20 habeas petition had been partially granted.

The district court then invited the parties to brief the issue of how it could obtain jurisdiction to remedy this perceived grouping error. Because Diaz-Clark's appeal of the denial of the Miami Case's habeas corpus petition was before this Court, the district court determined that it did not have jurisdiction to attempt to correct the sentence in that case. Diaz-Clark argued that the district court could obtain jurisdiction to resentence him in the Miami Case if this Court were to issue a limited remand. The government argued in opposition that the court could not regain jurisdiction because of the following: (1) the case was on appeal; (2) there was no pending motion that would warrant the filing of a motion under United States v. Ellsworth, 814 F.2d 613 (11th Cir.1987); and (3) if Diaz-Clark were to file a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, so that he could raise this sentencing issue as a new basis for relief, such motion would of necessity be denied as a time-barred successive 28 U.S.C. § 2255 petition.

On May 17, 2000, the district court entered an order entitled "Certification to the Eleventh Circuit Court of Appeals," wherein the court noted what it considered to be an error in not grouping the Miami Case and the Rule 20 Case in imposing sentence. The Certification Order requested this Court to remand the Miami Case's habeas case for the limited purpose of allowing ...