U.S. v. Diaz, No. 10-3337 (3d Cir. May 5, 2011)
A jury convicted Diaz of possession with intent to distribute heroin and two counts of possession of a firearm in furtherance of drug trafficking.
The Middle District of Pennsylvania sentenced Diaz to 40 years: 20 years for the heroin count and 10 years for each of the firearm counts.
Diaz appealed the conviction and sentence of the second firearm count. Finding that it must be based on a separate underlying drug offense, the Third Circuit vacated the second firearm count and remanded for resentencing.
Upon remand, the district court resentenced Diaz de novo to 20 years for the drug count and 160 months for the single firearm count. Because it did not consider Diaz’ rehabilitation efforts since incarceration, he appealed his sentence again.
The Third Circuit concluded that the district court’s de novo resentencing was appropriate because the original sentences were interdependent, and the Third Circuit did not specifically direct otherwise.
But in light of the recent United States Supreme Court case of Pepper v. United States which held that post-sentencing rehabilitation may be considered when resentencing de novo, the Third Circuit again vacated Diaz’ sentence and remanded for resentencing.
