United States v. Diaz

• Decision Date: 01 March 2021
• Docket Number: No. 19-11112,19-11112
• Citation: 989 F.3d 390
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Sylvia DIAZ, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

989 F.3d 390

UNITED STATES of America, Plaintiff—Appellee,

v.Sylvia DIAZ, Defendant—Appellant.

No. 19-11112

United States Court of Appeals, Fifth Circuit.

FILED March 1, 2021

James Nicholas Bunch, Esq., Brian W. Portugal, Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Robert Clary, Attorney, Murphy, TX, for Defendant-Appellant.

Before Higginbotham, Smith, and Dennis, Circuit Judges.

Jerry E. Smith, Circuit Judge:

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 straw-purchasers 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 after that, in February 2019, when she tried to re-enter the United States.

Diaz was indicted for conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement, in violation of 18 U.S.C. §§ 371 and 922(a)(6). She pleaded guilty, and the district court sentenced her to 58 months’ imprisonment. As a part of her plea agreement, she waived her right to appeal most issues. The waiver expressly reserved the right to appeal on three specific grounds: (1) if her sentence exceeded the statutory maximum punishment or was the result of an arithmetic error; (2) to challenge the voluntariness of the guilty plea or the waiver of appeal; and (3) to bring a claim of IAC.

II.

Diaz contends that "[a] defendant cannot ‘knowingly violate’ § 922(a)(6)"—as required by 18 U.S.C. § 924(a)(2) —"without having the intention to knowingly make a false statement to a seller whom the defendant actually knows is a federally-‘licensed dealer.’ " Thus, because the district court did not inform her expressly that the government would have to prove that she knew she lied to a seller whom she knew to be a licensed dealer, it is Diaz's position that her guilty plea was not knowing and voluntary.

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, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Plain error exists "when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights." United States v. Garcia-Rodriguez , 415 F.3d 452, 454 (5th Cir. 2005). Even then, the court may exercise its "discretion to notice a forfeited error ... only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quotation omitted). And "if a defendant's theory requires the extension of precedent, any potential error could not have been plain." Id. at 455 (quotation omitted).

A.

A guilty plea "must be voluntary, knowing, and intelligent." United States v. Lord , 915 F.3d 1009, 1016 (5th Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 320, 205 L.Ed.2d 188 (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, 109 S.Ct. 757, 102 L.Ed.2d 927 (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 § 922. As relevant here, § 922(a)(6) makes it unlawful "for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a ... licensed dealer ... knowingly to make any false or fictitious oral or written statement" that is "intended or likely to deceive such ... dealer ... with respect to any fact material to the lawfulness of the sale ...." Section 924(a)(2), in turn, punishes "[w]hoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 ...." (Emphasis added.)

1.

Before we reach the requirements to convict under § 922(a)(6), we make a brief detour into § 922(g) —another subsection to which § 924(a)(2) applies. Section 922(g) criminalizes possession of a firearm by certain categories of persons, such as illegal aliens. § 922(g)(5)(A). In Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2200, 204 L.Ed.2d 594 (2019), the Court held "that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm."

The Court reasoned that the scienter requirement in § 924(a)(2) meant that the government must prove that the defendant "knew he violated the material elements of § 922(g)," id. at 2196, among which is "the defendant's status" as "belong[ing] to the relevant category of persons barred from possessing a firearm," id. at 2196–97, 2200. Thus, the Court reversed the conviction because the government was required to prove not only that Rehaif knew he possessed a firearm, but also that he knew he was "an alien illegally or unlawfully in the United States ...." Id. at 2198 (quotation omitted).

2.

Diaz seeks to extend Rehaif ’s reasoning to § 922(a)(6). According to her, to convict for conspiracy to violate § 922(a)(6), the government must prove not only that she knowingly made a false statement but also that she made such statement to a seller she knew to be a licensed dealer. But Rehaif does not compel that conclusion. As an initial matter, Rehaif expressly cabined its holding, even limiting its application in relation to other portions within subsection (g). The Court "express[ed] no view ... about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue" in that case. Id. at 2200. Neither did it express a view about what the government must prove to establish the defendant's knowledge for subsection (a)(6).

More fundamentally, Rehaif dealt with "a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2) ...." Id. Diaz fails to recognize that her prosecution is under §§ 371 and 922(a)(6). The scienter requirement that the court imputed onto § 922(g), which Diaz seeks to apply to § 922(a)(6), comes from a third statute— § 924(a)(2) —that is altogether not at issue. Thus, even if Rehaif compels the inclusion of the scienter requirement for which Diaz advocates for prosecutions under §§ 922(a)(6) and 924(a)(2), that is not the crime of which she pleaded guilty. And § 371 does not contain the "knowingly" requirement included in § 924(a)(2).

In any event, even after Rehaif , and even for prosecutions under §§ 922(a)(6) and 924(a)(2), we have continued to adhere to our long-held view of what the government must prove under § 922(a)(6).¹ Indeed, we recently described the elements of § 922(a)(6) as follows: "that the defendant knowingly made false statements and that such statements were intended to deceive or likely to deceive a federally licensed firearms dealer with respect to any fact material to the lawfulness of the sale." Fields , 977 F.3d at 363 (cleaned up). Nowhere did we mention a scienter requirement as it pertained to the status of the dealer.

As one might expect, that characterization tracks closely with the Fifth Circuit Pattern Jury Instructions for prosecutions under § 922(a)(6), which the district court followed nearly to the letter:

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 §§ 924(a)(2) and 922(a)(6) —a supposition that we at least implicitly rejected in Fields —that has no bearing on prosecutions under §§ 371 and 922(a)(6). And even if it did, to hold that would require an extension of...