Third Circuit Court of Appeals: Court May Consider Total Weight of Drugs Handled on Different Occasions at Sentencing

Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of United States v. Diaz. The Court held that a trial court may consider the cumulative weight of drugs possessed by a defendant for purposes of his sentencing guidelines. This decision is important because it allows a trial court to aggregate all of the drugs that a defendant possessed on different occasions when calculating the guideline sentencing range, which can make the recommended sentence much higher. Even minor differences in the weight of drugs involved can have a dramatic effect on a criminal defendant’s sentencing guidelines.   

United States v. Diaz

The defendant was charged along with five co-defendants with conspiracy to distribute and possess with the intent to distribute heroin. One of the co-defendants, Guzman, allegedly orchestrated the conspiracy. He distributed drugs to his co-defendants, including his mother and the defendant. All of the defendant’s co-defendants pleaded guilty. The defendant, however, pleaded not guilty and went to trial.

After being indicted, the defendant represented that he could not afford counsel and he was appointed a Criminal Justice Act (CJA) counsel to represent him. Shortly after his CJA counsel was retained, she accepted a position as an assistant district attorney with an unknown prosecutor’s office. As such, she withdrew from the defendant’s case and he was appointed a new attorney on July 13, 2016. The defendant was not satisfied with his new attorney’s representation. According to the defendant, his new attorney pressured him to plead guilty, did not accept his advice on submitting pre-trial motions, and failed to turn over discovery to him. Consequently, the defendant filed a pro se motion to remove his new attorney from the case. The court held a hearing, and the trial court attempted to resolves their issues. Despite the trial court’s best efforts, it was not able to assuage the defendant’s concerns. The court therefore gave the defendant a new court-appointed attorney.

Unfortunately for the defendant, his relationship with his new attorney was not great, either. On December 5, 2016, the defendant wrote the trial court a letter stating that he had not received requested documents from his new attorney. The trial court then issued an order acknowledging receipt of the defendant’s letter and then forwarded a copy of said order to his attorney. It is unknown if the attorney responded to the defendant. 

A few months later, on February 7, 2017, the defendant wrote to the trial court again stating that he still did not have his requested discovery. The trial court then ordered the attorney to file a response to the defendant, however he did not. Shortly thereafter, the defendant filed another motion requesting a new attorney. The trial court did not seek any additional information from the attorney or the defendant. The trial court also did not schedule a hearing to address the defendant’s request or replace the attorney. About a month after the latest request from the defendant seeking new counsel, the attorney wrote to the trial court requesting a continuance. He also stated that he and the defendant had resolved all of their issues and that the defendant wished to continue having the attorney represent him. At the April 7, 2017 pre-trial conference, the defendant did not raise any issues between him and his attorney. 

This harmony was short lived. Ten days after the pre-trial conference, the defendant again wrote to the trial court stating that the attorney failed to adequately represent him and to provide him his requested discovery. It is unclear if the trial court made a formal acknowledgment of this letter. Approximately two months later, the defendant wrote to the trial court again complaining of his attorney’s supposed shortcomings. However, the defendant did not specifically request a new attorney. On August 16, 2017 the defendant’s case proceeded to trial with the defendant being represented by his current attorney. 

At his trial, multiple witnesses were called to testify against the defendant. These witnesses included his co-defendants (who had already pleaded guilty) and various DEA agents. Additionally, the Government introduced intercepted communications between the defendant and his co-defendants. The testimony showed that although the defendant was not the leader of the organization, he was involved in the drug trafficking. Specifically, the calls showed that he would primarily “bag” up the drugs and that he would also engage in selling on his own behalf. The testimony showed that on multiple occasions the defendant would bag 500 bags of heroin, which amounted to approximately 15 grams. At the conclusion of his trial, the defendant was found guilty of conspiring to distribute and possession with the intent to distribute. 

At his sentencing hearing, there was some debate about the weight of drugs that were involved in this case. The defendant argued that only 15 grams of heroin should be attributed to him instead of the 30 grams that the Government alleged. This is significant because U.S.S.G. § 2D1.1(c)(12) governs the guidelines for 20-30 grams of heroin and, it may go without saying, but the guidelines are harsher for 20 grams in comparison to 15 grams. At the conclusion of the sentencing hearing, the defendant was sentenced to 33 months imprisonment and three years of supervised release. After his sentencing, the defendant filed a timely appeal. On appeal, the defendant raised three issues: the trial court’s failure to inquire into the defendant’s motion for appointment of new counsel, the improper admission of one of the DEA agent’s testimony, and finally the trial court’s attribution of more than 20 grams of heroin to the defendant at sentencing. For purposes of this blog, only the defendant’s issue of whether the trial court improperly attributed more than 20 grams of heroin to the defendant at sentencing will be discussed. 

Does the Weight/Type of Drugs Matter for Determining a Defendant’s Sentencing Guidelines?

Yes. A defendant’s sentencing guidelines can be dramatically affected by the weight and type of drug that was involved. This is true in Pennsylvania too. In Pennsylvania, a defendant’s guidelines can be substantially different depending on how much heroin he possessed. For example, let’s assume that a defendant is convicted with Possession with Intent to Deliver with 50 grams of heroin and that he has no prior record. His guidelines on the case would be 22-36 months +/- 12. However, if this same defendant was convicted with 49 grams of heroin, his guidelines would be 9-16 months +/- 9 months. As one can see, the weight of the drugs is significant and one gram can make a huge difference in determining one’s sentencing guidelines. 

The federal guidelines are no different. In the instant case, the defendant was arguing that the evidence only showed that he possessed 15 grams of heroin. This is significant because per the federal sentencing guidelines, that would make his offense graded as a level 14. However, if the drugs had a weight of 30 grams (as alleged by the Government), then the offense is graded as a 16. Assuming the defendant was a zero (which is unclear from the Third Circuit’s opinion), his guidelines would have been 15-21 months if it was just 15 grams. However, if it was actually 30 grams, then his guidelines would be 21-27 months. Therefore, the weight of drugs can have a significant impact on the guidelines regardless of whether your case is in federal or state court. 

The Third Circuit’s Decision 

The Third Circuit upheld the defendant’s conviction and sentence. Regarding the weight of the drugs, the Third Circuit found that there was an “ample basis for determining that the defendant was responsible for at least 20 grams of heroin.” The defendant would frequently bag 500 bags of heroin which amounted to 15 grams of heroin. Additionally, the defendant did this more than once. As such, the trial court found that the trial court did not err in attributing at least 20 grams of heroin to the defendant for purposes of sentencing. Therefore, his sentence will stand and he will not get a new trial.  

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