United States v. Julio Diaz

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50228
Plaintiff-Appellee, D.C. No.
8:12-cr-00011-CJC-1
v.
JULIO GABRIEL DIAZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 10, 2019
Pasadena, California
Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,** District Judge.
Julio Gabriel Diaz was convicted and sentenced on numerous counts of
distribution of a controlled substance, largely oxycodone. In a prior appeal, we
affirmed his conviction but remanded for resentencing due to error in the district
court’s calculations of the applicable Sentencing Guidelines. United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
Diaz, 876 F.3d 1194 (9th Cir. 2017); United States v. Diaz, 717 F. App’x 684 (9th
Cir. 2017). Diaz appeals following his resentencing, raising two procedural
challenges. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,
and we affirm.
1. The district court did not plainly err in denying Diaz’s policy
objection under Kimbrough v. United States, 552 U.S. 85 (2007), to the
Guidelines’ converted drug weight for oxycodone. See United States v. Kleinman,
880 F.3d 1020, 1040–41 (9th Cir. 2017). Although Diaz’s Kimbrough objection
was not explicitly denied on the record, the district court raised it at sentencing,
continued to properly calculate the Guidelines range, explained its reasoning, and
imposed Diaz’s sentence in light of both the aggravating and mitigating factors. It
is “clear from the context” that the district court understood Diaz’s objection but
did not agree. United States v. Carter, 560 F.3d 1107, 1119 (9th Cir. 2009).
“[R]eversal is not justified where the court reviews and listens to the defendant’s
arguments.” United States v. Rangel, 697 F.3d 795, 806 (9th Cir. 2012).
Diaz’s reliance on United States v. Henderson is misplaced, because there
we reversed when the district court “was squarely presented with the question of
whether Kimbrough discretion applies,” but “[its] ruling on the issue” was unclear
as to whether it rejected the argument on the merits or believed it lacked authority
to consider it. 649 F.3d 955, 964 (9th Cir. 2011). Nothing in the record here
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suggests that the district court incorrectly believed it lacked the authority to vary
based on a policy disagreement with the drug conversion rates in the Guidelines.
And because “district courts are not obligated to vary . . . on policy grounds if they
do not have, in fact, a policy disagreement” with the Guidelines, there was no plain
error. Id.
2. We review for abuse of discretion Diaz’s due process challenge to the
district court’s reliance on the converted drug weights. United States v. Ibarra,
737 F.2d 825, 826–27 (9th Cir. 1984). A district court abuses its discretion if, at
sentencing, it relies on “false or unreliable” information that “lacks some minimal
indicium of reliability beyond mere allegation.” Id. at 827 (quotation omitted).
The converted drug ratios are not factual allegations but the product of the
Sentencing Commission’s legal and policy judgments, which are sufficiently
reliable indicators. See Neal v. United States, 516 U.S. 284, 291 (1996).
Therefore, there was no due process violation.
AFFIRMED.
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