US v. Martinez-Armestica

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [14-1674]

Case: 14-1674

Document: 00117108211

Page: 1

Date Filed: 01/20/2017

Entry ID: 6063798

United States Court of Appeals
For the First Circuit
No. 14-1674
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH MARTINEZ-ARMESTICA,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before
Lynch, Selya, and Lipez,
Circuit Judges.

John E. Mudd, with whom Law Offices of John E. Mudd were on
brief, for appellant.
Susan Jorgensen, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Jose Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

January 20, 2017

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LIPEZ,

Circuit

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Judge.

Joseph

Entry ID: 6063798

Martinez-Armestica

("Martinez") was charged with two counts of carjacking, one count
of using, carrying, and brandishing a firearm during a crime of
violence, and four counts of illegal possession of firearms seen
in photographs on Martinez's cell phone.

He pled guilty to the

carjacking counts and not guilty to the others.

After a three-

day jury trial, Martinez was convicted on all five remaining counts
and sentenced to 180 months in prison.

He appeals his convictions

and sentence, arguing that there was insufficient evidence for the
jury to find that he brandished a real gun during the carjacking,
that

the

trial

judge

erred

in

admitting

testimony

from

the

government's firearms expert related to the illegal possession
counts, and that his sentence was unreasonable.1

Following a

careful review of his claims, we affirm.

1

Martinez also submitted a pro se letter, purportedly
pursuant to Federal Rule of Appellate Procedure 28(j), arguing,
based upon Johnson v. United States, 135 S. Ct. 2551 (2015) and
Welch v. United States, 136 S. Ct. 1257 (2016), that his carjacking
conviction is not a crime of violence under 18 U.S.C. § 924(c)(3).
Because this is a new argument, rather than a citation of
supplemental authorities, it is not properly raised through a Rule
28(j) letter.
Moreover, Welch did not answer any question
currently applicable to this case, and Johnson had already been
decided when appellant submitted his opening brief. Consequently,
Martinez has waived this argument by not raising it in a timely
manner. See Young v. Wells Fargo Bank, N.A., 828 F.3d 26, 32 (1st
Cir. 2016).

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I.
Because

Martinez

challenges

the

sufficiency

of

the

evidence against him on the brandishing count, we state the facts
in the light most favorable to the jury's verdict. United States
v. Cruz-Rodriguez, 541 F.3d 19, 25 (1st Cir. 2008).
On September 25, 2012, at approximately 10:15 p.m.,
Zuleyka Arroyo-Melendez ("Arroyo") drove her 22-year-old niece,
Stephanie Ramirez, to the Martinez Nadal train station in Puerto
Rico.

Ramirez had left her own SUV in the train station parking

lot earlier in the day and had asked her aunt to drive her there
after work so she could pick it up.

Arroyo parked next to her

niece's SUV, and Ramirez switched cars.

Ramirez had turned her

car on and was preparing to back out of her parking space when a
white Toyota pulled up in the parking lot behind the two women.
Two men, aged between 19 and 23 years old, also appeared behind
them.

One of the men, later identified as Martinez, approached

Ramirez's SUV holding what the women described as a small, black
pistol.

He yelled at Ramirez to get out of her car and held the

pistol to her head. Ramirez complied. Martinez got into Ramirez's
SUV and, after heeding her pleas to throw her bag of college books
to her, drove away.
Meanwhile, the second man approached Arroyo and stood
approximately two feet away from her, pointing at her what was
described as a second black pistol.

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After Martinez left, the

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second man got into Arroyo's SUV but, finding himself unable to
turn off the emergency brake, called Arroyo over to the car.
Pushing the muzzle of his pistol against her abdomen, he demanded
that she lower the emergency brake handle.

Arroyo later described

the pistol as feeling hard and "a bit cold."

She complied, but

pleaded with him not to take the car and leave her stranded in the
parking lot with her niece.

He responded by saying that he needed

the car, but he agreed to give Arroyo her house keys.

He then

drove away in Arroyo's SUV.
Arroyo later recognized Martinez and his accomplice in
a photo she saw posted on Facebook and identified the two men to
the police. When Martinez was taken into custody the police seized
a cell phone from him, which was later found to contain at least
four photos of Martinez with guns.
In

July

2013,

a

grand

jury

returned

a

superseding

indictment charging Martinez with two counts of carjacking and one
count of brandishing a firearm during and in relation to a crime
of violence. Martinez was also indicted on four counts of unlawful
possession of a firearm by a convicted felon based on the photos
discovered on his phone.

As noted, he pled guilty to the two

counts of carjacking but elected to go to trial on the other five
counts.

He was found guilty on all counts.
Martinez was subsequently sentenced to 71 months for

each of the carjacking and illegal possession offenses, to be

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served concurrently. The district court also imposed a consecutive
sentence of 109 months for brandishing a firearm during a crime of
violence, which included a 25-month variance over the Guidelinesrecommended sentence.

This appeal followed.
II.

A. Sufficiency of the Evidence for Brandishing a Firearm During a
Crime of Violence
Martinez argues that the evidence presented at trial was
insufficient for the jury to find that he brandished a firearm
during the carjacking.

A conviction under 18 U.S.C. § 924(c)

requires proof that the defendant wielded a "firearm," which is
defined as
(A) any weapon (including a starter gun) which will or
is designed to or may readily be converted to expel a
projectile by the action of an explosive; (B) the frame
or receiver of any such weapon; (C) any firearm muffler
or firearm silencer; or (D) any destructive device. Such
term does not include an antique firearm.
18 U.S.C. § 921(a)(3).

The firearm must be "real," rather than a

toy or replica, but it "need not be prove[d] to be loaded or
operable."

United States v. Taylor, 54 F.3d 967, 975 (1st Cir.

1995) (quoting United States v. Kirvan, 997 F.2d 963, 966 (1st
Cir. 1993)).
Martinez

contends

that

the

government

establish that the object in his hand was a real gun.

failed

to

Sufficiency

of the evidence claims are reviewed de novo when, as here, they

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have been preserved for appeal. United States v. De León-Quiñones,
588 F.3d 748, 751 (1st Cir. 2009).

We give deference to the jury's

determination, however, viewing the evidence in the light most
favorable to the government and asking "whether any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt."

United States v. Roberson, 459 F.3d 39, 47

(1st Cir. 2006) (quoting United States v. Bailey, 405 F.3d 102,
111 (1st Cir. 2005)).
At

trial,

both

Arroyo

and

Ramirez

Martinez's use of a gun during the carjacking.

testified

about

Martinez argues

that because neither woman actually stated that the gun was real,
their testimony about the gun was not specific enough to support
a jury finding to that effect.

He also attempts to cast doubt on

their ability to adequately see the object in his hand, asserting
that the parking lot was not well lit and that Ramirez could see
only part of the gun.
Martinez's attempt to discredit the evidence before the
jury is unavailing.
pistol."

Both women described the object as a "black

Arroyo also testified that she knew the difference

between a pistol and a revolver, permitting the jury to infer that
she had some familiarity with firearms.2

2

Neither woman referred

As explained in greater detail by Agent Douglas J.
Halepaska, Jr., a firearms and tool marks examiner called at trial
as a witness by the government, both pistols and revolvers are
handguns.
A revolver has a cylinder containing a number of
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to the gun in Martinez's hand in any way that would indicate that
it was not real.

See United States v. Cruz-Diaz, 550 F.3d 169,

173 (1st Cir. 2008) (finding that the totality of evidence,
including the lack of an indication in the witness testimony that
the "pistol" described by the witnesses was fake, supported an
inference

by

the

jury

that

the

defendant

used

a

real

gun).

Moreover, the two witnesses' reactions to the gun provide further
circumstantial evidence that they believed it to be real: both
women gave up their cars and keys in response to the threats of
Martinez and his accomplice, and Arroyo testified that she thought
Martinez was going to kill her niece.

See De León-Quiñones, 588

F.3d at 752 (finding sufficient evidence for a § 924(c) conviction
based, in part, upon evidence of the victims' reaction indicating
that they believed the defendant's gun was real).
Nor is there any reason to doubt the witnesses' testimony
that they could see the gun.

Both Arroyo and Ramirez pointed out

that the parking lot was lit, and Arroyo noted that she had parked
her SUV directly next to a lamp post.

Ramirez also testified that

she could see clearly during the episode.

Moreover, Arroyo, who

observed the gun from only 2 to 3 feet away while Martinez pointed

separate chambers that rotate around a central axis. When a unit
of ammunition is discharged, it moves from one of those chambers
into the barrel of the gun. In a pistol, by contrast, the chamber
and the barrel are integrated as one unit.

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it at her niece, testified that she was paying close attention
because "I thought he was going to kill her."
Martinez

also

attempts

a

more

general

challenge

to

Arroyo and Ramirez's testimony, arguing that the testimony of a
lay

witness

who

lacks

experience

with

guns

is

categorically

insufficient to prove that an object is a real gun.

Instead, he

argues, the testimony of an expert witness is required, or, as in
Roberson, at least the testimony of a witness who handled the
object at issue and has some familiarity with firearms.
F.3d at 47.

See 459

Along with other circuits, we have squarely rejected

the argument that such expert testimony is necessary.

See Taylor,

54 F.3d at 975 ("lay opinion testimony may be employed to propel
a finding that an object is in fact a real gun"); see also, e.g.,
United States v. Lawson, 810 F.3d 1032, 1040 (7th Cir. 2016);
United States v. Stenger, 605 F.3d 492, 504 (8th Cir. 2010).
Furthermore, a witness need not be familiar with firearms, nor
have held the weapon to testify that it was real.

See United

States v. Jones, 16 F.3d 487, 490-91 (2d Cir. 1994) (finding
testimony of eyewitnesses who were "not familiar with weapons"
sufficient to sustain conviction under § 924(c)); Parker v. United
States, 801 F.2d 1382, 1383-85 (D.C. Cir. 1986) (rejecting the
contention that eyewitness testimony will not suffice to establish
that

an

object

is

a

gun

unless

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"it

[was]

given

by

persons

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knowledgeable about firearms who had an opportunity to examine the
weapon closely").
Martinez

argues

that

these

precedents

should

be

reevaluated in light of the 2000 amendments to Rule 701 of the
Federal Rules of Evidence, which he claims were intended to "mak[e]
it much more difficult for laypersons to testify as to issues
better left for experts."

That argument, which was limited to one

sentence of appellant's brief, was raised in such a perfunctory
manner that we deem it waived.

See United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived. . . .

'[A] litigant has an obligation "to spell

out its arguments squarely and distinctly," or else forever hold
its peace.'" (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635
(1st Cir. 1988))).

Even so, this circuit's post-2000 decisions

clearly reaffirm that the testimony of a person with specialized
knowledge is not required to sustain a jury finding that a gun was
real.

See, e.g., Cruz-Diaz, 550 F.3d at 173 (affirming conviction

based on the testimony of four bank employees, none of whom held
the gun or had specialized expertise); De León-Quiñones, 588 F.3d
at 752 (affirming conviction based on the testimony of three bank
employees, none of whom held the gun or had specialized expertise).

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We
evidence

therefore

was

Page: 10

reject

insufficient

Date Filed: 01/20/2017

Martinez's

to

support

contention
his

Entry ID: 6063798

that

conviction

the
for

brandishing a firearm during a crime of violence.
B. Admission of Expert Testimony
At

trial

Halepaska,

Jr.,

a

laboratory

division

the

government

firearms
of

the

and

called

tool

Federal

marks
Bureau

Agent

Douglas

examiner
of

for

J.
the

Investigation

("FBI"), to testify in support of the charges of illegal possession
of a firearm.

Halepaska analyzed photos found on Martinez's phone

showing Martinez in possession of guns, which served as the basis
for the illegal possession charges.
The

government

expert testimony.

presented

Halepaska's

conclusions

as

Pursuant to Federal Rule of Evidence 702,

Halepaska first testified about his qualifications and methods.
He described in detail the "lengthy and extensive training program"
he had undergone at the FBI before being certified as a firearms
and tool mark examiner.
forensic

analyses

he

He then explained the various kinds of
performs

on

firearms

evidence.

For

photographs such as those on Martinez's phone, he performs an
"association examination," or more specifically a "photograph
analysis," in which he examines specific physical characteristics
of the gun in a photo and determines which manufacturers and models
of guns are consistent with those features.

After making an

initial assessment, he obtains firearms from the FBI's collection

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of over 7,000 reference firearms to compare directly with the
photos.

He then creates an illustration that mimics the photo by

placing the reference firearm in a similar position to that of the
unknown

gun.

comparison

of

This

positioning

features

so

that

allows
he

can

him

to

narrow

make
the

a

direct

subset

of

potential firearms that are consistent with the pictured gun.
Upon questioning by defense counsel, Halepaska admitted
that his examination in this case was only the third association
analysis he had conducted since being certified, and that this was
the first time he had testified in court about an association
examination.

At that point defense counsel objected to his

qualification as an expert.

The judge overruled the objection and

declared Halepaska an expert in determining whether an object in
a photograph is consistent with a specific brand or model of gun.
Halepaska

then

testified

that

he

had

conducted

a

"photograph analysis" of three of the photos found on Martinez's
phone, each of which featured Martinez with an object that appeared
to be a gun.3

Halepaska concluded that the item in each of the

three photos was consistent with a pistol manufactured by Glock.
On cross examination, however, he admitted that he could not
determine whether the guns in the photos were functional firearms,

3

Halepaska's analysis addressed only the photos dated June
17, 2012, June 22, 2012 and August 26, 2012. The fourth photo,
dated September 24, 2012, was not provided to him and he did not
testify about its contents.

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replica firearms, or toy firearms.

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He explained that, in order to

determine whether a gun was real, he would need to examine it in
person.
Martinez claims that Halepaska's testimony failed to
meet the requirements of Federal Rule of Evidence 702.

That rule

"imposes a gate-keeping role on the trial judge to ensure that an
expert's testimony 'both rests on a reliable foundation and is
relevant to the task at hand.'"

United States v. Vargas, 471 F.3d

255, 261 (1st Cir. 2006) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993)).

It states:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
Appellant argues that the district court abused its
discretion by admitting Halepaska's testimony, alleging defects
relating to all but the last of the rule's requirements.

He

contends that Halepaska was unqualified to offer expert testimony
to the jury because he had not been trained to distinguish replica
and toy guns from real guns, that Halepaska's testimony was not

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helpful to the jury, that it was not based on sufficient data, and
that the government did not establish that Halepaska had used
reliable principles and methods to reach his conclusions.
Although

Martinez

objected

generally

to

Halepaska's

qualification as an expert witness at trial, none of these specific
critiques of Halepaska's qualifications as an expert was raised
before the district court.

Consequently, none of these arguments

was preserved for appeal, suggesting the applicability of plain
error review.

See United States v. Mercado, 412 F.3d 243, 247

(1st Cir. 2005) ("It is well established that an objection on one
ground does not preserve appellate review of a different ground."
(quoting Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672
(1st Cir. 2000))); United States v. Diaz, 300 F.3d 66, 75-76 (1st
Cir. 2002) (applying plain error review after concluding that an
objection

to

an

expert's

qualifications

was

insufficient

to

preserve a challenge to the reliability of the expert's methods).
Oddly, the government ignores the plain error issue and
asserts that the trial judge's ruling should be reviewed for abuse
of discretion.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141

(1997) (stating that a district court's decision to admit or
exclude expert testimony is generally reviewed under an abuse of
discretion standard).

Because of the government's failure to

request plain error review, we will apply the standard of review
applicable to a properly preserved claim.

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United States v.

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Paulino-Guzman, 807 F.3d 447, 450 n.5 (1st Cir. 2015) ("'[w]hen
the government fails to request plain error review,' we may 'review
the claim under the standard of review that is applied when the
issue is properly preserved below.'" (alteration in original)
(quoting United States v. Encarnación-Ruiz, 787 F.3d 581, 586 (1st
Cir. 2015))). Accordingly, we review the district court's decision
to admit Halepaska's testimony for abuse of discretion, keeping in
mind that trial judges are afforded "substantial latitude in the
admission or exclusion of opinion evidence."

First Marblehead

Corp. v. House, 541 F.3d 36, 40 (1st Cir. 2008) (quoting Crowe v.
Marchand, 506 F.3d 13, 16 (1st Cir. 2007)).
Turning to Martinez's arguments, we note that two of
them miss the mark because they are based on the same false
premise.

First, Martinez argues that Halepaska was unqualified to

offer expert testimony to the jury because he had not been trained
to distinguish replica and toy guns from real guns.

Second, he

asserts that Halepaska did not have a sufficient factual basis to
determine whether the guns in the photos were real or replicas
because he was unable to examine the actual firearms pictured in
the photos.

Both arguments are based on the incorrect assertion

that Halepaska offered testimony that the guns in the photos were
real.
Instead, Halepaska's testimony was limited to opining on
the consistency of features he observed on the pictured guns with

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features of Glock-manufactured pistols.
stated

that

he

would

need

to

Entry ID: 6063798

Indeed, Halepaska himself

physically

examine

determine whether it was real, a replica, or a toy.

the

gun

to

Recognizing

that he lacked such a factual basis, Halepaska declined to offer
any opinion on whether the pictured guns were real.

Moreover, the

district judge's qualification of Halepaska as an expert was
limited in scope to the comparison of features of the pictured and
reference guns.

Specifically, the judge stated: "I believe that

from preliminary questions submitted by counsel to Mr. Halepaska,
that he is qualified as an expert to testify concerning the
association between an object on a photograph and a real pistol
and

the

association

as

to

the

characteristics,

if

they

are

consistent with the other."4
Martinez also argues that Halepaska failed to offer
technical or specialized knowledge that would assist the jury in
determining a fact in issue and, hence, his testimony was not
relevant.

See Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161

F.3d 77, 81 (1st Cir. 1998) ("To be admissible, expert testimony
must be relevant not only in the sense that all evidence must be
relevant, but also in the incremental sense that the expert's
proposed opinion, if admitted, likely would assist the trier of

4

Given the context of Halepaska's testimony, we take "real
pistol" to refer to Halepaska's use of reference firearms in his
analysis rather than his ability to determine whether a gun in a
photo is real.

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fact to understand or determine a fact in issue." (citations
omitted)).

Martinez insists that the jurors could have done what

Halepaska did -- compare the photos to real firearms -- and reached
the same conclusions.

This argument misconstrues the way in which

Halepaska's testimony was helpful to the jury.
Halepaska did not simply compare the photographs to real
firearms.

Instead, he first had to determine which, if any, of

the 7,000 guns in the FBI's reference firearms collection had
features consistent with the items in the photos.

This analysis

required knowledge of the characteristics of thousands of guns, as
well as the expertise to know which characteristics are relevant
for distinguishing among different brands and models of guns.
lay person generally would not possess such knowledge.

A

See United

States v. Corey, 207 F.3d 84, 96 (1st Cir. 2000) ("[T]estimony
identifying the manufacturer of a firearm will usually constitute
technical or specialized knowledge that will assist the trier of
fact.").

His testimony that the guns in the photographs were

consistent with Glock pistols, then, was not based simply upon the
comparison of guns in photographs with a real gun, but also upon
expertise which allowed him to determine the most apt comparator
gun.
Martinez

also

faults

the

government

for

failing

to

elicit explicit testimony from Halepaska about the reliability of
his methods.

Two features of Halepaska's analysis provide a fair

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proxy for such explicit testimony, however.

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Halepaska's analysis

consisted of two steps: first, using his specialized knowledge to
pick out the most apt comparator gun, and second, assessing the
consistency of the pictured gun with the comparator gun.

As

explained below, the reliability of the former process is supported
by Halepaska's extensive training, and the reliability of the
latter process is supported by the simplicity of that task.
The first step of Halepaska's analysis required him to
use his specialized knowledge of the features of various brands
and models of firearms to choose a gun that was similar to one
featured in a photo.

The accuracy of this determination depended

largely on the quality of the specialized knowledge he applied to
the task.

Consequently, the reliability of this step could be

ascertained by examining the strength of the background from which
he derived his expertise.
knowledge
experience

rather
and

than

Often in fields based upon specialized
scientific

training

bear

a

expertise,
strong

reliability of the expert's testimony."
107

F.3d

1147,

1155

(6th

Cir.

1997).

the

correlation

"expert's
to

the

United States v. Jones,
Indeed,

the

Advisory

Committee on the 2000 amendments to the Federal Rules of Evidence
noted that "[i]n certain fields, experience is the predominant, if
not sole, basis for a great deal of reliable expert testimony."
Fed. R. Evid. 702 advisory committee's note to 2000 amendments.

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Halepaska's

Page: 18

training

reliability of his testimony.

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and

experience

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support

the

Before the district court qualified

Halepaska as an expert witness, the agent testified in detail about
his training and experience with firearms.

He stated that he had

undergone "a lengthy and extensive training program" during his
four

years

working

in

the

FBI's

laboratory

division.

That

preparation included touring firearms manufacturing facilities,
reading articles and books about "the discipline of firearms and
tool marks examinations," and hands-on instruction.

In this on-

the-job training, under the "direct supervision of a qualified and
experienced firearms and tool mark examiner," he worked with sample
weapons,

on

which

he

conducted

"hundreds

of

examinations,

thousands of observations." At the end of this training, he passed
oral and written examinations to become certified as a firearms
and tool mark examiner.

He examined at least one hundred firearms

for the FBI after completing his training.

Moreover, even before

beginning his training with the FBI, he had gained experience with
firearms by serving as an infantryman in the Marine Corps for five
years.

In

short,

his

experience

considerable and wide-ranging.

with

firearms

was

both

This specialized knowledge formed

the basis for the first step of the "association examination" upon
which Halepaska based his expert opinion.
The second step of Halepaska's analysis required him to
determine whether the features of the chosen reference gun were

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consistent with those of the pictured gun.

Entry ID: 6063798

In essence, this was

a simple task, requiring a visual comparison of two photographs,
one of the chosen reference gun, the other of the pictured gun.
Because of this simplicity, the district court did not have to
consider technical data, such as the method's error rate or whether
it had been subjected to peer review, in order to make its
reliability determination.

See Kumho Tire Co. v. Carmichael, 526

U.S. 137, 150-52 (1999) ("[T]he factors identified in Daubert may
or may not be pertinent to assessing reliability, depending on the
nature of the issue, the expert's particular expertise, and the
subject of his testimony. . . .

Otherwise, the trial judge would

lack the discretionary authority needed . . . to avoid unnecessary
'reliability' proceedings in ordinary cases where the reliability
of an expert's methods is properly taken for granted . . . ."
(internal quotation omitted)).

Instead, the district court could

reasonably

based

have

determined,

upon

an

explanation

of

Halepaska's technique, that his visual comparison of objects was
a reliable method of determining the consistency of their physical
features.
Taken together, Halepaska's extensive experience and the
simplicity of his technique establish a fair proxy for explicit
testimony about the reliability of his methods.5

5

The district

In arguing that the expert testimony was improperly
admitted, appellant also suggests that the evidence presented in
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court did not abuse its discretion by qualifying Halepaska as an
expert witness.
C. Reasonableness of the Sentence
Martinez challenges the substantive reasonableness of
his sentence, targeting the upward variance applied by the district
court when sentencing him for brandishing a firearm during the
commission

of

a

crime

§ 924(c)(1)(A)(ii) and (3).

of

violence.

See

18

U.S.C.

Claiming that the court based the

increase on a consideration already factored into the Guidelinesrecommended sentence -- i.e. his use of weapons -- Martinez argues
that it was unreasonable for the sentencing judge to rely on such
a factor.

The government responds that there was no abuse of

discretion in the district court's choice of sentence.

See Gall

v. United States, 552 U.S. 38, 41 (2007) (holding that substantive

support of the illegal possession charges was insufficient to
support the verdict.
In doing so, however, he incorrectly
describes what took place at trial, asserting that "simply showing
firearms to the jury to compare with photographs would not be
sufficient to find a violation of §§ 922 and 924." Because the
jury was not provided with firearms to compare with the
photographs, the question of the sufficiency of that kind of
evidence is not before us in this case.
Beyond this erroneous
characterization of the trial evidence, appellant's sufficiency
argument is so undeveloped that it is inadequate to raise such a
claim on appeal.
See Zannino, 895 F.2d at 17.
In fact, the
government does not even address the sufficiency of the evidence
in its brief.
This lack of response does not control our
determination that the issue was inadequately raised; we simply
note it as further evidence of the inadequacy of appellant's
briefing.
The sufficiency of the evidence claim was preserved
below by trial counsel, thereby permitting a developed argument if
one had been made.

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reasonableness is generally reviewed under the abuse of discretion
standard).
The district court found that, taken together, the two
carjacking charges and four illegal possession charges produced a
Guidelines sentencing range ("GSR") of 57-71 months.
does not challenge that calculation.

Martinez

The court also noted that

the Guidelines sentence for the charge of brandishing a firearm
during a crime of violence is the minimum term of imprisonment
required by the statute, or 84 months.

See U.S.S.G. § 2K2.4(b).

Defense counsel acknowledged that this term was to be served
consecutively with the sentence for the other charges, yielding an
overall sentencing range of 141 to 155 months.6
Before

announcing

the

sentence,

the

district

court

addressed the factors set forth in 18 U.S.C. § 3553(a), noting the
particularly

violent

and

dangerous

manner

in

which

Martinez

committed the carjacking and brandishing crimes here as well as a
prior crime which had also involved a firearm.

Based on those

factors, the district court concluded that Martinez was "prone to
using firearms" and that he was "possibly [a] very dangerous person

6

Citing a statement made by trial counsel at the sentencing,
appellant's brief states that the Guidelines range is 135 to 147
months. Appellant does not provide any support for this assertion,
however; nor does he argue that the district court's calculation
of the Guidelines range is incorrect. We do not, therefore, take
this to be an attempt to dispute the district court's calculation
of the GSR.

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to the community."

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Entry ID: 6063798

It sentenced Martinez to 71-month terms of

imprisonment for each of the carjacking and illegal possession
offenses, to be served concurrently, and imposed a consecutive
term of 109 months for brandishing a firearm during a crime of
violence, a variance of 25 months over the 84-month Guideline
sentence.
Appellant relies on United States v. Ofray-Campos in
asserting that the variance constitutes an abuse of discretion
because the district court considered a factor that was already
accounted for in the Guidelines-recommended sentence, specifically
his use of weapons.
he

was

convicted

See 534 F.3d 1, 43 (1st Cir. 2008).
of

offenses

based

on

his

Because

possession

and

brandishing of guns, he argues, the district court could not base
an upward departure on those same incidents of weapon usage.
We did not hold in Ofray-Campos, however, that the
consideration of such factors was unreasonable. Instead, we stated
that when imposing a variance based on factors that overlap with
considerations included in the Guidelines sentence, the district
court

"must

articulate

specifically

the

reasons

that

this

particular defendant's situation is different from the ordinary
situation covered by the [G]uidelines calculation."

Id. (quoting

United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).
In this case, the district court articulated several
factors demonstrating that Martinez's conduct went beyond the

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ordinary

conduct

Page: 23

proscribed

by

Date Filed: 01/20/2017

the

statute.

It

Entry ID: 6063798

pointed

to

Martinez's repeated, threatening use of firearms in finding that
he was "prone to using firearms" and "possibly very dangerous . . .
to the community."

Rather than simply brandishing a weapon,

Martinez pointed the gun directly at one of the carjacking victims,
holding it against her head.

Moreover, he brandished the gun in

the parking lot of a public train station.
The district court also considered factors related to
Martinez's

criminal

history

and

personal

characteristics.

Martinez had previously been convicted for violation of a Puerto
Rico weapons law.

That conviction was based upon a prior armed

robbery, during which he had aimed a firearm at a victim.

He had

also shot the gun into the air twice, once again in a public place.
Combined with Martinez's continued possession of firearms, as
demonstrated by the photos found on his phone, the district court
could reasonably attribute to Martinez an ongoing and unremitting
proclivity toward the use and possession of dangerous weapons.
This substantial history of firearms abuse supports the district
court's decision to exceed the Guidelines sentence that would apply
to a first time offender who had committed the minimum offense
conduct.
Martinez also argues that the size of the variance
renders his sentence unreasonable.

Here, the 180-month sentence

imposed by the district court constitutes a 16% increase over the

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high end of the Guidelines range.7

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Entry ID: 6063798

As an initial matter, the

Supreme Court has rejected "the use of a rigid mathematical formula
that uses the percentage of a departure as the standard for
determining the strength of the justifications required for a
specific sentence."

Gall, 552 U.S. at 47.

Where the sentence is

outside the Guidelines term, we "may consider the extent of the
deviation, but must give due deference to the district court's
decision that the § 3553(a) factors, on a whole, justify the extent
of the variance."

Id. at 51.

The roughly two-year variance in Martinez's sentence is
"modest," and "not unreasonable in light of the totality of the
circumstances" surrounding Martinez's repeated use of firearms in
a manner dangerous to the public.

See United States v. Guzman-

Fernandez, 824 F.3d 173, 178 (1st Cir. 2016).

Indeed, the 84-

month Guidelines sentence is the statutory minimum, reflecting
Congress's expectation that it is merely the starting point for
determining the appropriate term of imprisonment for a defendant
convicted of violating § 924(c)(1)(A)(ii).

The district court's

upward variance must be viewed in the context of the entire
statutory sentencing range, which begins at 84 months and has an
upper bound of life imprisonment.

7

Appellant suggests that the variance constitutes a 22.4%
increase over the upper end of the Guidelines range.
As noted
above, he bases his argument on an incorrect Guidelines range
referenced by trial counsel during the sentencing.

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We thus reject Martinez's contention that his sentence
was unreasonable.
Affirmed.

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