Former Bakersfield Police Department Detective Damacio Diaz will be sentenced to between 17 and 22 years in prison next week if a federal court judge in Fresno follows the recommendation of the U.S. Attorney’s Office.
That could be a big “if.”
In a sentencing memorandum filed earlier this month in U.S. District Court, the federal prosecutor’s office argued forcefully against a pre-sentencing report prepared by the U.S. Probation Office recommending a downward “variance” that would reduce Diaz’s sentence by 82 months, or nearly seven years.
Diaz pleaded guilty last spring to taking bribes, trafficking in methamphetamine and lying on his tax return. It was all part of a plea agreement that became public last May, and all part of a life that has come crashing down following Diaz’s indictment in November on a litany of charges that also included taking bribes, disclosure of wiretap information to a criminal partner and interfering with a criminal investigation.
Those latter charges, however, were dismissed as part of his plea deal.
In the memo filed last week, federal probation officials recommend the reduction in Diaz’s sentence based on the defendant’s “positive community involvement, family support and responsibilities, military service and non-existent prior criminal record.”
Indeed, Diaz, 44, became something of a celebrity after the release of the movie “McFarland, USA,” which highlights the exploits of the McFarland High School cross country team, of which Diaz was a part in the 1980s.
Without the downward variance of 82 months, sentencing guidelines suggest a range of 210 to 262 months. The probation office recommended a sentence of 180 months, or 15 years.
The U.S. Attorney’s Office was adamant in its rejection of Probation’s argument.
“The United States disagrees that a variance is appropriate,” the government wrote in response. “The factors cited by (Probation’s presentence investigation report) in support of variance are either disfavored, not relevant or specifically prohibited by the guidelines.”
Federal prosecutors became even more pointed in their rejection, writing Diaz’s behavior “constituted a significant and serious breach of the public trust, caused irreparable harm to the Bakersfield law enforcement community and jeopardized the community’s trust and support of their police department.”
While federal Judge Lawrence O’Neill has said he will take all arguments into consideration, ultimately Diaz’s sentence will be at the judge’s discretion.
“I’m obligated to consider federal (sentencing) guidelines,” the judge said during Diaz’s plea hearing last June. “But I’m not obligated to follow them.”
Prosecutors acknowledge in the document that cooperation from the former BPD homicide detective helped nail his former police partner, Patrick Mara.
“Diaz’s cooperation was essential in bringing charges against Mara,” prosecutors wrote.
Mara has also pleaded guilty as part of an agreement with the U.S. Attorney’s Office. He is scheduled for sentencing next month. Both men remain free on bail.
In responding to Probation’s argument citing Diaz’s “positive community involvement,” prosecutors were especially dismissive, composing their argument in a tone not often seen in legal filings.
“The government does not wish to disparage defendant’s commendable sports achievements,” they wrote, “but it is hard to envision how success in high school sports that occurred approximately 25 years ago should be a basis for reduction of sentence for serious criminal conduct that occurred while the defendant was both an adult and a police officer.”
Diaz’s sentencing hearing is scheduled for Monday.