     Case: 09-60869     Document: 00511224432          Page: 1    Date Filed: 09/03/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 3, 2010
                                     No. 09-60869
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL A. DIAZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 3:09-CR-47-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Michael A. Diaz appeals his sentence following his guilty plea conviction
for failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). Diaz
was previously convicted under the Uniform Code of Military Justice of indecent
acts with a child and upon his release was required to adhere to the sex offender
registration requirements. However, after his release, Diaz failed to register as
an offender in Alabama, Mississippi, Nevada, Tennessee and Wyoming although
he lived for a period of time in each. Diaz pled guilty to failing to register and

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60869         Document: 00511224432 Page: 2               Date Filed: 09/03/2010
                                      No. 09-60869

at sentencing the district court calculated his guidelines sentencing range,
pursuant to U.S.S.G. § 5G1.1(b), as 15 to 21 months. The district court elected
to impose a non-guidelines sentence and sentenced Diaz to a 96-month term of
imprisonment.
Diaz argues the sentence is both procedurally and substantively unreasonable.
We affirm.
       Diaz first argues that the district court committed procedural error by
finding that his statute of conviction imposed a five-year mandatory minimum
sentence, thereby raising his guidelines sentencing range, pursuant to U.S.S.G.
§ 5G1.1(b), from 15 to 21 months to 60 months. Because Diaz did not raise this
issue in the district court, review is for plain error.1 To prevail, Diaz must show
a forfeited error that is clear or obvious and affects his substantial rights.2 This
court has the discretion to correct such error if it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” 3
       Diaz fails to show clear or obvious error regarding the relevant statement
made by the district court during the sentencing hearing. Taken in context, it
is evident that at the sentencing hearing the district court was referring to the
mandatory supervised release term of at least five years to life. The district
court adopted the presentence investigation report which correctly identified the
statutory minimums and maximums. Even if it were assumed that the district
court committed clear or obvious error, Diaz cannot prevail under plain error
review because he cannot show that the error affected his substantial rights.4


       1
           United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).
       2
           See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
       3
           See id. (internal quotation marks and citation omitted).
       4
         See United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010) (“A sentencing error
affects a defendant’s substantial rights if he can show a reasonable probability that, but for
the district court’s misapplication of the Guidelines, [he] would have received a lesser
sentence.”) (internal quotation marks and citation omitted)).

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                                      No. 09-60869

       Diaz next argues that the district court erred by failing to provide a
sufficient explanation for the 96-month sentence imposed and that the extent of
the court’s deviation was unreasonable. Diaz did not raise these objections in
the district court; therefore, review is for plain error.5              Contrary to Diaz’s
assertions, the district court provided detailed reasons for its sentence variance,
expressly considering the factors of 18 U.S.C. § 3553(a).6 The district court
based its sentence on Diaz’s failure over ten years to register in any of the states
he lived in, the need for the sentence imposed to reflect the seriousness of the
offense, the need to deter future conduct given that Diaz failed to register
despite being advised of his obligation, to protect the public, noting that Diaz did
not object to the presentence investigation report’s allegations that Diaz had
engaged in a more recent incident of child abuse and had been found with child
pornography, and to provide an opportunity for Diaz to receive adequate
counseling. Diaz has shown no error, plain or otherwise, as to the adequacy of
the court’s reasons.7           Moreover, Diaz has not shown clear or obvious error
regarding the substantive reasonableness of his non-guidelines sentence.8
       In his reply brief, Diaz contends for the first time that the district court
improperly relied on an incident report filed with the Nevada police, we decline
to consider this argument.9
       The sentence is AFFIRMED.




       5
        Lopez-Velasquez, 526 F.3d at 806; United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007).
       6
           See United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).
       7
           See id. at 708-10.
       8
           See id.; Peltier, 505 F.3d at 392-94.
       9
           See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007).

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