United States v. Melvin Diaz , 592 F. App'x 627 ( 2015 )


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  •                                                                              FILED
    NOT FOR PUBLICATION                                FEB 18 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 12-10579
    Plaintiff - Appellee,             D.C. No. 1:11-cr-00019-FMTG-1
    v.
    MEMORANDUM*
    MELVIN DAVID DIAZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of the Northern Mariana Islands
    Frances Tydingco-Gatewood, Chief District Judge, Presiding
    Argued and Submitted August 27, 2014
    Hagatna, Guam
    Before: SCHROEDER, KOZINSKI, and N.R. SMITH, Circuit Judges.
    1. Sufficient evidence supported the jury’s finding, beyond a reasonable
    doubt, that the dominant purpose of Diaz’s travel to Rota, between August 1, 2010
    and September 30, 2010, was to engage in sexual activity with the victim, whom
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Diaz knew to be a minor. See Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979);
    United States v. Lukashov, 
    694 F.3d 1107
    , 1119 (9th Cir. 2012).
    2. Because Diaz can be convicted of traveling in interstate commerce with
    the intent to engage in illicit sexual conduct with a minor without actually having
    sex with a minor, Diaz’s sentence may be enhanced for having sex with this victim
    without punishing Diaz twice for that conduct. See U.S. Sentencing Guidelines
    Manual (“USSG”) § 2G1.3(b)(4)(A) (2011); United States v. Clark, 
    435 F.3d 1100
    , 1116 (9th Cir. 2006).
    3. The district court did not plainly err in calculating Diaz’s criminal history
    points and category. The facts included in the pre-sentence investigation report
    and presented at trial provided sufficient evidence for the district court to conclude
    (by a preponderance of the evidence) that Diaz formulated the intent to engage in
    illicit sexual conduct with this minor within ten years of his two prior convictions,
    even though he traveled outside the ten year period. See USSG § 4A1.2(e)(2).
    Federal officials received information that Diaz was having sexual relations with a
    minor in Rota in April 2010. For months before Diaz traveled to Rota, he and the
    minor had telephone conversations five to six times per week. In May 2010, Diaz
    asked permission of the minor’s parents to date her; Diaz attended her junior high
    -2-
    graduation; and the victim claimed that Diaz had sex with her (although
    impeaching evidence was introduced on this point).
    4. The district court considered the 
    18 U.S.C. § 3553
    (a) factors, did not base
    its decision on erroneous facts, and considered the totality of the circumstances to
    arrive at a sentence that was procedurally and substantively reasonable. See United
    States v. Carty, 
    520 F.3d 984
    , 993 (9th Cir. 2008) (en banc).
    AFFIRMED.
    -3-
    FILED
    United States v. Diaz, No. 12-10579                                            FEB 18 2015
    MOLLY C. DWYER, CLERK
    KOZINSKI, Circuit Judge, dissenting in part:                                U.S. COURT OF APPEALS
    Sentences for past crimes may count towards a defendant’s criminal history
    score only if the sentences were “imposed within ten years of the defendant’s
    commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(2)–(3). Diaz’s
    sentences for family violence and simple stalking were imposed on August 15,
    2000, so the question is whether Diaz began committing the current
    offense—traveling to Rota for the purpose of having sex with the underage
    victim—before August 15, 2010.
    The government concedes that Diaz didn’t begin the crime during his trip in
    May 2010, as he didn’t know the victim was underage when he traveled to Rota at
    that time. Diaz’s next trip wasn’t until September. The key question, then, is
    whether Diaz did anything before August 15 “in preparation for that offense, or in
    the course of attempting to avoid detection or responsibility for that offense.”
    U.S.S.G. § 1B1.3(a)(1). While Diaz communicated with the victim prior to August
    15, there is no evidence that any of these communications involved planning for
    the September trip; nor is there any other evidence that Diaz prepared for this trip
    before August 15. Given these undisputed facts, the district court’s mathematical
    error is plain.
    In handing down a 97-month prison term, the district court said it intended
    page 2
    to give Diaz the “maximum sentence.” Excluding the two prior sentences would
    have reduced Diaz’s Guidelines range from 78–97 months to 70–87 months. There
    is thus little doubt that the district court’s mistake cost Diaz almost a year in
    prison, affecting Diaz’s substantial rights and undermining the fairness of the
    sentencing proceedings. Because “it is a miscarriage of justice to give a person an
    illegal sentence,” United States v. Ameline, 
    409 F.3d 1073
    , 1081 (9th Cir. 2005)
    (internal quotation marks omitted), I would remand for resentencing.
    

Document Info

Docket Number: 12-10579

Citation Numbers: 592 F. App'x 627

Filed Date: 2/18/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023