                                                                             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                           NOT FOR PUBLICATION                                FEB 18 2015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.
