IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60869

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 3, 2010

Lyle W. Cayce

Clerk

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: 1 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. To prevail, Diaz must show

1

a forfeited error that is clear or obvious and affects his substantial rights. This

2

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

United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). 

1

See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). 

2

See id. (internal quotation marks and citation omitted). 

3

See United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010) (“A sentencing error 4

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)).

2

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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. Contrary to Diaz’s

5

assertions, the district court provided detailed reasons for its sentence variance,

expressly considering the factors of 18 U.S.C. § 3553(a). The district court

6

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. Moreover, Diaz has not shown clear or obvious error

7

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.

Lopez-Velasquez, 526 F.3d at 806; United States v. Peltier, 505 F.3d 389, 391-92 (5th

5

Cir. 2007). 

See United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006). 

6

See id. at 708-10. 

7

See id.; Peltier, 505 F.3d at 392-94. 8

See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007). 9

3

Case: 09-60869 Document: 00511224432 Page: 3 Date Filed: 09/03/2010