NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10483
Plaintiff-Appellee, D.C. No. 2:13-cr-00148-JAD
v.
MEMORANDUM*
JULIO DE ARMAS DIAZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Julio De Armas Diaz appeals from the district court’s judgment and
challenges the 103-month sentence imposed on remand following his jury-trial
convictions for conspiracy to interfere with commerce by robbery, in violation of
18 U.S.C. § 1951; false statement, in violation of 18 U.S.C. § 1001; conspiracy to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
commit theft from interstate shipment, in violation of 18 U.S.C. § 371; and three
counts of theft from interstate shipment, in violation of 18 U.S.C. §§ 659 and 670.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Diaz contends that the district court denied his request for a downward
variance to reflect his post-conviction rehabilitation on the improper ground that it
was already granting a variance on another basis, resulting in a substantively
unreasonable sentence. The district court did not abuse its discretion in imposing
Diaz’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The record
refutes Diaz’s claim that the court did not understand that it could vary downward
on two independent bases. Rather, the court considered Diaz’s positive post-
sentencing conduct and was simply unpersuaded that it warranted a sentence below
103 months. See Rita v. United States, 551 U.S. 338, 358 (2007). The below-
Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances, including the nature of the
offense. See Gall, 552 U.S. at 51.
AFFIRMED.
2 17-10483