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9th Circuit affirms conviction, sentence of Guam man who impregnated Rota girl
Chief judge, however, dissented, saying district judge made mathematical error
The U.S. Court of Appeals for the Ninth Circuit has affirmed the conviction and the imposition of a 97-month prison term on Melvin David Diaz, a Guam ex-convict who impregnated a girl on Rota.
Ninth Circuit Chief Judge Alex Kozinski, however, dissented in part, saying the district court’s mathematical error is plain.
Senior Circuit Judge Mary M. Schroeder and Circuit Judge N. Randy Smith are the other members of the appellate panel who affirmed the conviction and sentence.
The Ninth Circuit judges said there is enough evidence to support the jury’s finding that Diaz primarily traveled to Rota, between Aug. 1, 2010, and Sept. 30, 2010, for the purpose of having sex with the the victim, a minor, and that he knew she was a minor.
The judges also ruled that the district court did not base its decision on erroneous facts, and considered the totality of the circumstances to arrive at a sentence that was reasonable.
In February 2012, a federal jury found Diaz not guilty of three counts of enticement of a minor but guilty of one count of travel with intent to engage in illicit sexual conduct. U.S. District Court for the NMI designated judge Frances Tydingco-Gatewood sentenced the then-49-year-old Diaz to 97 months in prison, with credit for 504 days of time served.
Diaz appealed, asking the Ninth Circuit to reverse his conviction and the sentence. The hearing on the appeal was held in the U.S. District Court of Guam in August 2014.
In affirming the conviction and sentence, judges said the District Court did not 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 10 years of his two prior convictions, even though he traveled outside the 10-year period,” the judges said.
Federal officials, the judges said, received information that Diaz was having sex with a minor in Rota in April 2010.
Before Diaz traveled to Rota, he and the minor had telephone conversations five to six times per week for months, the judges said.
The judges said that, in May 2010, Diaz asked permission from the minor’s parents to date her; Diaz attended her junior high graduation; and she claimed that he had sex with her.
In dissenting in part, Kozinski pointed out that sentences for past crimes may count toward a defendant’s criminal history score only if the sentences were “imposed within 10 years of the defendant’s commencement of the instant offense.”
Kozinski said Diaz’s sentences for family violence and simple stalking were imposed on Aug. 15, 2000, so the question is whether he began committing the current offense—traveling to Rota for the purpose of having sex with the underage victim—before Aug. 15, 2010.
Kozinski noted that the U.S. 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.
The chief judge said Diaz’s next trip wasn’t until September.
Kozinski said the key question, then, is whether Diaz did anything before Aug. 15 “in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
The chief judge said while Diaz communicated with the victim prior to Aug. 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 Aug. 15.
“Given these undisputed facts, the district court’s mathematical error is plain,” he pointed out.
Kozinski said in handing down a 97-month prison term, the district court said it intended 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, he said.
“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,” he said.
Kozinski said because “it is a miscarriage of justice to give a person an illegal sentence,” he would remand for resentencing.
