Beware of jumping criminal history categories in Federal Court if you have pending State charges.

Hidey Diaz, 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 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.


Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
(619) 357-6677

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