United States v. Melvin Diaz

MEMORANDUM *

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 Diaz knew to be a minor. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (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…

dissenting in part:

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…

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NOT FOR PUBLICATION FEB 18 2015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-

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…