United States v. Diaz

MEMORANDUM ** Bernardo Solano Diaz appeals his conviction by conditional plea and 5-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand. Solano Diaz contends, and the government concedes, that Georgia v. Randolph, — U.S. -, 126 S.Ct. 1515 , 164 L.Ed.2d 208 (2006), compels the reversal of the district court’s denial of his motion to suppress. We agree. Because Solano Diaz was present at the scene and expressly declined to consent to the search of his apartment, the police unreasonably relied upon the consent given by his brother. In light of our agreement with the government’s concession, Solano Diaz’s remaining contention regarding the effectiveness of his brother’s consent is moot. REVERSED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.