United States v. Diaz , 313 F. App'x 735 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2009
No. 08-20259
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JERMAINE CARLOS DIAZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-488-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jermaine Carlos Diaz pleaded guilty to one count of failing to register as
a sex offender in violation of 18 U.S.C. § 2250(a). He was sentenced to 18
months of imprisonment and a life term of supervised release. Diaz appeals his
sentence. Diaz argues that the district court clearly erred in failing to apply a
three-level adjustment pursuant to U.S.S.G. § 2A3.5(b)(2)(A) because he
voluntarily corrected the failure to register and that his life term of supervised
release is unreasonable.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-20259
We review all sentences for reasonableness, using a deferential abuse-of-
discretion standard. Gall v. United States, 128 S. Ct. 586, 596-97 (2007). First,
we consider whether the sentence imposed is procedurally sound. Id. at 597. We
then consider whether the sentence is substantively reasonable, using an
abuse-of-discretion standard. Id.
This court still reviews a district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A finding is not clearly
erroneous if it is plausible in light of the whole record. Id.
Section 2A3.5(b)(2) provides that a defendant’s base offense level should
be decreased by three levels, “[i]f the defendant voluntarily (A) corrected the
failure to register; or (B) attempted to register but was prevented from
registering by uncontrollable circumstances and the defendant did not contribute
to the creation of those circumstances.” U.S.S.G. § 2A3.5(b)(2). The application
notes clarify that subsection (b)(2) applies only if “the defendant’s voluntary
attempt to register or to correct the failure to register . . . occurred prior to the
time the defendant knew or reasonably should have known a jurisdiction had
detected the failure to register.” § 2A3.5, cmt. n.2(A).
The record reflects that when Diaz finally corrected his failure to register
in Houston, Texas, he had already been charged with failing to register in
Arkansas. At that time, Diaz knew that his failure to register had been detected
by one jurisdiction. Further, Diaz had been living in Houston for months prior
to his apprehension; he admitted that he did not register because he was doing
so many things at one time; and he conceded that he had the time to register but
was promoting a show at the time and just, basically, avoided the law.
Consequently, Diaz has failed to demonstrate that the district court clearly erred
in denying his request for a three-level adjustment.
Diaz also argues that the district court erred in imposing a life term of
supervised release. Diaz contends that failing to register as a sex offender is a
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No. 08-20259
Class C felony for which, pursuant to U.S.S.G. § 5D1.2(a)(2), the term of
supervised release is at least two years but not more than three years. See
U.S.S.G. § 5D1.2(a)(2). He contends that the district court failed to consider this
provision or provide adequate reasons for the term of supervised release and
that the life term is therefore unreasonable.
As Diaz concedes, because he did not object to the district court’s
imposition of a life term of supervised release, review is for plain error only. See
United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007). To show plain
error, Diaz must show an error that is clear or obvious and that affects his
substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 77 U.S.L.W. 3398 (U.S. Jan. 12, 2009) (No. 08-7559). If he makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
The record reflects that the district court considered the nature and
circumstances of the offense as well as Diaz’s history and characteristics in
determining Diaz’s sentence and that even if the district court erred in failing
to consider § 5D1.2(a)(2) in determining the term of supervised release, 18
U.S.C. § 3583(k) authorizes a maximum statutory term of life supervised release
for violations of § 2250. Diaz has not demonstrated plain error.
Accordingly, the judgment of the district court is AFFIRMED.
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