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NOT FOR PUBLICATION FEB 18 2015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.