USA V. JULIO DIAZ, No. 17-10483 (9th Cir. 2018)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 21 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 17-10483 D.C. No. 2:13-cr-00148-JAD v. MEMORANDUM* JULIO DE ARMAS DIAZ, Defendant-Appellant. Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding Submitted August 15, 2018** Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges. Julio De Armas Diaz appeals from the district court’s judgment and challenges the 103-month sentence imposed on remand following his jury-trial convictions for conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951; false statement, in violation of 18 U.S.C. § 1001; conspiracy to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). commit theft from interstate shipment, in violation of 18 U.S.C. § 371; and three counts of theft from interstate shipment, in violation of 18 U.S.C. §§ 659 and 670. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Diaz contends that the district court denied his request for a downward variance to reflect his post-conviction rehabilitation on the improper ground that it was already granting a variance on another basis, resulting in a substantively unreasonable sentence. The district court did not abuse its discretion in imposing Diaz’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The record refutes Diaz’s claim that the court did not understand that it could vary downward on two independent bases. Rather, the court considered Diaz’s positive postsentencing conduct and was simply unpersuaded that it warranted a sentence below 103 months. See Rita v. United States, 551 U.S. 338, 358 (2007). The belowGuidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including the nature of the offense. See Gall, 552 U.S. at 51. AFFIRMED. 2 17-10483
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