                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 13 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50301

              Plaintiff - Appellee,              D.C. No. 3:10-cr-04739-GT-1

  v.
                                                 MEMORANDUM*
JUAN JOSE DIAZ-CRUZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                Gordon Thompson, Senior District Judge, Presiding

                          Submitted November 8, 2012**
                              Pasadena, California

Before: BRIGHT***, GRABER, and IKUTA, Circuit Judges.

       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.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
               The Honorable Myron H. Bright, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
      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 public, a

cultural assimilation departure would have been unwarranted. U.S.S.G. § 2L1.2

cmt. n.8 (2010).

      The district court erred in determining that Diaz-Cruz was sentenced to 445

days of jail time for his state conviction. Because a California state court may not

sentence a defendant to an aggregate term in jail that exceeds one year without a


                                          2
Johnson waiver, People v. Johnson, 82 Cal. App. 3d 183, 184–85 (Ct. App. 1978);

United States v. Buzo-Zepeda, 609 F.3d 1024, 1025 (9th Cir. 2010), and there is no

evidence of such a waiver in the record, Diaz-Cruz’s sentence of 365 days in jail

after his violation of probation for the state conviction necessarily included his

prior sentence for 80 days in jail. See United States v. Gomez-Leon, 545 F.3d 777,

785 (9th Cir. 2008). Because the district court’s error resulted in an incorrect

criminal history score and an incorrect Guidelines range, the district court might

have arrived at a different sentence had it not made such an error. United States v.

Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per curiam). Therefore,

we cannot say that the error was harmless. Id.



      VACATED and REMANDED.




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