United States v. Diaz

Court Case Details
Court Case Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2009

No. 08-20259

Summary Calendar

Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JERMAINE CARLOS DIAZ,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-488-ALL

Before KING, DENNIS, and OWEN, Circuit Judges.

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PER CURIAM:

Jermaine Carlos Diaz pleaded guilty to one count of failing to register as

a sex offender in violation of 18 U.S.C. § 2250(a). He was sentenced to 18

months of imprisonment and a life term of supervised release. Diaz appeals his

sentence. Diaz argues that the district court clearly erred in failing to apply a

three-level adjustment pursuant to U.S.S.G. § 2A3.5(b)(2)(A) because he

voluntarily corrected the failure to register and that his life term of supervised

release is unreasonable.

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Pursuant to 5

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47.5, the court has determined that this opinion should not

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be published and is not precedent except under the limited circumstances set forth in 5

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47.5.4.

No. 08-20259

We review all sentences for reasonableness, using a deferential abuse-of-

discretion standard. Gall v. United States, 128 S. Ct. 586, 596-97 (2007). First,

we consider whether the sentence imposed is procedurally sound. Id. at 597. We

then consider whether the sentence is substantively reasonable, using an

abuse-of-discretion standard. Id.

This court still reviews a district court’s interpretation or application of the

Guidelines de novo and its factual findings for clear error. United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A finding is not clearly

erroneous if it is plausible in light of the whole record. Id.

Section 2A3.5(b)(2) provides that a defendant’s base offense level should

be decreased by three levels, “[i]f the defendant voluntarily (A) corrected the

failure to register; or (B) attempted to register but was prevented from

registering by uncontrollable circumstances and the defendant did not contribute

to the creation of those circumstances.” U.S.S.G. § 2A3.5(b)(2). The application

notes clarify that subsection (b)(2) applies only if “the defendant’s voluntary

attempt to register or to correct the failure to register . . . occurred prior to the

time the defendant knew or reasonably should have known a jurisdiction had

detected the failure to register.” § 2A3.5, cmt. n.2(A).

The record reflects that when Diaz finally corrected his failure to register

in Houston, Texas, he had already been charged with failing to register in

Arkansas. At that time, Diaz knew that his failure to register had been detected

by one jurisdiction. Further, Diaz had been living in Houston for months prior

to his apprehension; he admitted that he did not register because he was doing

so many things at one time; and he conceded that he had the time to register but

was promoting a show at the time and just, basically, avoided the law.

Consequently, Diaz has failed to demonstrate that the district court clearly erred

in denying his request for a three-level adjustment.

Diaz also argues that the district court erred in imposing a life term of

supervised release. Diaz contends that failing to register as a sex offender is a

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No. 08-20259

Class C felony for which, pursuant to U.S.S.G. § 5D1.2(a)(2), the term of

supervised release is at least two years but not more than three years. See

U.S.S.G. § 5D1.2(a)(2). He contends that the district court failed to consider this

provision or provide adequate reasons for the term of supervised release and

that the life term is therefore unreasonable.

As Diaz concedes, because he did not object to the district court’s

imposition of a life term of supervised release, review is for plain error only. See

United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007). To show plain

error, Diaz must show an error that is clear or obvious and that affects his

substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),

cert. denied, 77 U.S.L.W. 3398 (U.S. Jan. 12, 2009) (No. 08-7559). If he makes

such a showing, this court has the discretion to correct the error but only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

The record reflects that the district court considered the nature and

circumstances of the offense as well as Diaz’s history and characteristics in

determining Diaz’s sentence and that even if the district court erred in failing

to consider § 5D1.2(a)(2) in determining the term of supervised release, 18

U.S.C. § 3583(k) authorizes a maximum statutory term of life supervised release

for violations of § 2250. Diaz has not demonstrated plain error.

Accordingly, the judgment of the district court is AFFIRMED.

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