United States v. Juan Diaz-Cruz

MEMORANDUM *** Juan Diaz-Cruz appeals from the sentence imposed for his conviction under 8 U.S.C. § 1326. We vacate his sentence and remand for re-sentencing. The record does not support Diaz-Cruz’s argument that the district court failed to appreciate its discretion to deviate from the Sentencing Guidelines for policy reasons. Although the district court did not explicitly respond to Diaz-Cruz’s policy argument, it exercised its discretion to impose a below-Guidelines sentence after noting that it had such discretion and expressing its view that the Guidelines range was excessively harsh. We also reject Diaz-Cruz’s argument that the district court improperly denied him a downward departure for cultural assimilation. United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006). We do not review a district court’s decision to deny a downward departure, because the scheme of departures is “essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” Id. There is no reason to conclude that the sentence imposed was substantively unreasonable. In any event, because the district court reasonably concluded that Diaz-Cruz’s criminal history made him a risk to the public, a cultural assimilation departure would have been unwarranted. U.S.S.G. § 2L1.2 cmt. n. 8 (2010). The district court erred in determining that Diaz-Cruz was sentenced to 445 days of jail time for his state conviction. Because a California state court may not sentence a defendant to an aggregate term in jail that exceeds one year without a Johnson waiver, People v. Johnson, 82 Cal.App.3d 183, 184-85, 147 Cal.Rptr. 55 (1978); United States v. Buzo-Zepeda, 609 F.3d 1024, 1025 (9th Cir.2010), and there is no evidence of such a waiver in the record, *698 Diaz-Cruz’s sentence of 365 days in jail after his violation of probation for the state conviction necessarily included his prior sentence for 80 days in jail. See United States v. Gomez-Leon, 545 F.3d 777, 785 (9th Cir.2008). Because the district court’s error resulted in an incorrect criminal history score and an incorrect Guidelines range, the district court might have arrived at a different sentence had it not made such an error. United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.2011) (per curiam). Therefore, we cannot say that the error was harmless. Id. VACATED and REMANDED. Footnotes [***] disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.