United States v. Juan Diaz-Cruz

MEMORANDUM

Juan Diaz-Cruz appeals from the sentence imposed for his conviction under 8 U.S.C. § 1326 . We vacate his sentence and remand for re-sentencing.

The record does not support Diaz-Cruz’s argument that the district court failed to appreciate its discretion to deviate from the Sentencing Guidelines for policy reasons. Although the district court did not explicitly respond to Diaz-Cruz’s policy argument, it exercised its discretion to impose a below-Guidelines sentence after noting that it had such discretion and expressing its view that the Guidelines range was excessively harsh.

We also reject Diaz-Cruz’s argument that the district court improperly denied him a downward departure for cultural assimilation. United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006). We do not review a district court’s decision to deny a downward departure, because the scheme of departures is “essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” Id. There is no reason to conclude that the sentence imposed was substantively unreasonable. In any event, because the district court reasonably concluded that Diaz-Cruz’s criminal history made him a risk to the…