United States v. Diaz


Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 20, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-1269 (D.C. No. 1:18-CR-00553-RBJ-1) HIDEY DIAZ, a/k/a Silvio Manuel (D. Colo.) Amador, a/k/a Celio Alvarez-Carrasco, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________ Hidey Diaz1, a previously deported Honduran national, was arrested and charged with first-degree trespass of a dwelling in Arapahoe County, Colorado. While he was in state custody, a federal grand jury in the United States District Court for the District of Colorado indicted Mr. Diaz on a charge of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). The Government obtained an arrest warrant for Mr. Diaz but did not * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Mr. Diaz also goes by the name of Silvio Amador. Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 2 proceed on the federal charge at that time. Before the Government pursued the federal prosecution, Mr. Diaz pleaded guilty to the state charge. Mr. Diaz made his initial appearance in federal court almost a year after the federal indictment. Mr. Diaz then pleaded guilty to the federal illegal reentry charge. The state conviction altered his United States Sentencing Guidelines range in two ways: (1) the applicable criminal history category increased from V to VI, and (2) the applicable offense level score increased by eight levels. At sentencing, Mr. Diaz moved for a variance, citing the Guidelines range that would have applied if the Government had pursued the federal prosecution without delay and before his state conviction. The district court denied Mr. Diaz’s motion for a variance and sentenced him to 63 months’ incarceration. Mr. Diaz now challenges his sentence as substantively unreasonable. For the following reasons, we affirm his sentence. I. BACKGROUND A. Factual History Mr. Diaz, a Honduran national, has a history of immigration violations. He was previously deported in 2010, 2012, and 2018, and convicted of illegally reentering the country in 2012. On November 4, 2018, Mr. Diaz was arrested on a first-degree trespass of a dwelling charge in Arapahoe County, Colorado after he opened an unlocked window to enter a residence and “[a] fight ensued.” ROA Vol. 3 at 30. The day after his arrest, federal immigration authorities discovered Mr. Diaz in custody at the Arapahoe County Detention Facility. On December 4, 2018, a grand jury sitting in the District of Colorado charged Mr. Diaz with illegal reentry after deportation, in violation 2 Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 3 of 8 U.S.C. § 1326(a). The Government obtained an …

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