2006 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 03-1905

UNITED STATES OF AMERICA

v. JUAN DIAZ, Appellant
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 01-cr-00060-1) District Judge: Honorable Clarence C. Newcomer
Submitted Under Third Circuit LAR 34.1(a) December 5, 2005 Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges (Filed: January 3, 2006)

OPINION OF THE COURT

RENDELL, Circuit Judge

. 

### Juan Diaz was arrested in June of 2000 af ter selling heroin to a witness who was cooperating with the government. A search of Diaz’s house, pursuant to a warrant, yielded 751 packets of heroin, weighing 23.5 grams, and a loaded .25 caliber pistol. Diaz1 

### The PSI recommended, based on Diaz’s three prior controlled substance convictions, that Diaz should be sentenced as a career offender within the meaning of U.S. Sentencing Guidelines 

### Manual § 4B1.1 (2001). As a result of this recommendation, Diaz’s base offense level, before a three-level acceptance of responsibility reduction, was enhanced from 22 to 34, and his criminal history category was increased from V to VI. 2 

### pleaded guilty to one count of possession of a controlled substance with intent to distribute within 1,000 feet of a school in violation of 21 U.S.C. § 860(a). The Presentence Investigation Report calculat ed Diaz’s sentencing range at 188 to 235 months, using an offense level of 31 and criminal history category VI. 1 

### Prior to sentencing, Diaz moved for downward departure from the recommended sentence pursuant to (1) U.S. Sentencing Guidelines Manual § 4A1.3 (2001), on the grounds that his criminal history category si gnificantly overstated the seriousness of his criminal history; (2) U.S.S.G. § 5K2.0 and Koon v. United States , 518 U.S. 81 (1996), based on the conditions of his confin ement; and (3) U.S.S.G. § 5K2.0 and United States v. Salley , 116 F.3d 76 (3d Cir. 1997), based on his claims of postconviction rehabilitation. The government opposed Diaz’s motions, but moved for downward departure based on his cooperation under U.S.S.G. § 5K1.1. At a sentencing hearing on March 19, 2003, Judge Newcom er granted the government’s motion, denied Diaz’s motions, and sentenced Diaz to 180 months imprisonment, 6 years supervised release, a $2,500 fine and a special assessment of $100. On appeal, Diaz argues that Judge Newcomerdid not adequately explain the basis2 

### Diaz does not appeal his conviction. 3 

### for his denial of Diaz’s downward departure motions. 2

### The government responds that we lack jurisdiction over this appeal because the decision whether to grant Diaz’s motion was within the Judge’s discretion. Howeve r, because we conclude that Diaz’s appeal raises questions under United States v. Booker , 543 U.S. 220 (2005), we have jurisdiction pursuant to 18 U.S.C. § 3742(a)(2). Diaz did not respond to our initial letter notifying him of his right to raise Booker claims. We sent a second letter directi ng Diaz to comment on the applicability of Booker to his case, and Diaz responded that he wi shes to be resentenced in light of Booker

. Diaz’s failure to raise a Booker issue within the time specif ied in our first letter, while regrettable, “is not fatal” to his appeal. United States v. Ramirez-Erregun , 149 Fed. App’x 111, 113 (3d Cir. 2005). Because such clai ms are “question[s] of law that require[ ] no additional findings of fact,” and failure to address them would result in miscarriages of justice, see United States v. Davis , 407 F.3d 162, 164 (3d Cir. 2005) (en banc) (“[A] defendant’s substantial rights may have been affected where the District Court erred by treating the Guidelines as mandatory rather than advisory.”), we retain discretion to consider them even if th ey have been waived. Ramirez-Erregun , 149 Fed. App’x at 113 (citing Bagot v. Ashcroft , 398 F.3d 252, 256 (3d Cir. 2005)).
In United States v. Davis , we held that defendants sentenced under the mandatory guideline regime whose sentences were on direct appeal when Booker was decided are

### 4 

### entitled to a remand for resentencing pursuant to Booker

. Davis , 407 F.3d at 165. Applying Davis here, we will vacate Diaz’s sentence and remand for resentencing.

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