USA v. Sail Martinez

Filing

Opinion issued by court as to Appellant Sail Emiliano Martinez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-12657

Date Filed: 01/11/2013

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12657
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cr-14054-JEM-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAIL EMILIANO MARTINEZ,
a.k.a. Saul Castro Martinez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 11, 2013)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Sail Martinez appeals his total sentence of 84 months’ imprisonment,
imposed after he pled guilty to conspiracy to commit robbery, in violation of 18

Case: 12-12657

Date Filed: 01/11/2013

Page: 2 of 6

U.S.C. § 1951(a) (Count 1), and carrying and possessing a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). For the
reasons set forth below, we affirm Martinez’s sentences.
I.
Martinez’s presentence investigation report (“PSI”) provided that Martinez
and his co-conspirator, Geovani Sales, solicited a confidential informant to rob a
money courier, and Sales and Martinez told the informant that they would obtain a
firearm for the informant’s use in the robbery. The confidential informant
introduced Sales, Martinez, and their co-conspirator, Jose Rosales, to an
undercover officer, and Sales and Martinez solicited the officer to commit the
robbery. Martinez told the officer to smash the driver’s side window of the
courier’s vehicle in order to put the gun to the courier’s head. Martinez further
told the officer that the courier would not resist. In a post-arrest statement,
Martinez admitted to participating in the planning of the robbery.
The PSI stated that, as to Count 1, Martinez had a base offense level of 20,
pursuant to U.S.S.G. § 2B3.1(a), as his offense involved robbery. A
mitigating-role adjustment was not recommended, pursuant to U.S.S.G. § 3B1.2.
As to Count 3, a five-year consecutive term of imprisonment had to follow the
term of imprisonment imposed as to Count 1.

2

Case: 12-12657

Date Filed: 01/11/2013

Page: 3 of 6

At sentencing, Martinez objected that he should receive a two-level
minor-role reduction, pursuant to § 3B1.2(b). Although Martinez was uncertain
and could not prove it, the “victims” in the case may have been part of the
underlying conspiracy, which was relevant to whether Martinez deserved a
minor-role reduction. Martinez noted that a statement in the PSI provided that the
couriers would not resist when a gun was pointed at them. Rosales had stated in
his proffer that Sales’s brother may have warned the victims of Sales’s intention to
rob the victims. The court rejected as speculation Martinez’s assertion concerning
the victims being involved in the conspiracy and determined that the minor-role
adjustment did not apply. The court imposed a total sentence of 84 months’
imprisonment.
II.
On appeal, Martinez argues that the district court clearly erred in not
reducing his base offense level by two levels for his minor role in the offense,
pursuant to § 3B1.2(b), because the PSI indicated that the robbery was Sales’s
idea, Sales placed the firearm in the vehicle, Martinez did not plan the robbery, and
Martinez was only to receive $5,000 for his role in the conspiracy. Further, the
victims of the offense may have been part of the underlying conspiracy.
We review a district court’s denial of a role reduction for clear error. United
States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). The defendant
3

Case: 12-12657

Date Filed: 01/11/2013

Page: 4 of 6

bears the burden of establishing his minor role in the offense by a preponderance
of the evidence. Id. Furthermore, in making the ultimate determination of the
defendant’s role in the offense, the court does not have to make any specific
subsidiary factual findings. United States v. De Varon, 175 F.3d 930, 939 (11th
Cir. 1999) (en banc). Thus, so long as the court’s decision is supported by the
record and the court resolves any disputed factual issues, a simple statement of the
court’s conclusion is sufficient. Id.
The Sentencing Guidelines provide for a two-level decrease to a base
offense level if a defendant was a minor participant in the criminal activity.
U.S.S.G § 3B1.2(b). A minor participant is one “who is less culpable than most
other participants, but whose role could not be described as minimal.” Id.,
comment. (n.5). In determining whether § 3B1.2(b) applies, the district court must
compare the defendant’s role in the offense with the relevant conduct for which he
has been held accountable with respect to calculating his base offense level.
Bernal-Benitez, 594 F.3d at 1320. The court may also compare the defendant’s
conduct with that of the other participants in the offense. Id. The fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct is not necessarily dispositive, as it is possible that none are minor
participants. De Varon, 175 F.3d at 944.

4

Case: 12-12657

Date Filed: 01/11/2013

Page: 5 of 6

In this case, the undisputed statements in the PSI provide that Martinez was
involved in the planning of the robbery and in obtaining the firearm to be used in
the robbery. See United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006)
(providing that unobjected-to facts in the PSI are deemed admitted). Martinez was
only held accountable for the robbery with respect to his base offense level
calculation, and thus, the relevant conduct attributed to him in calculating his
guideline range was identical to his actual conduct. See Bernal-Benitez, 594 F.3d
at 1320. Even if Martinez was less culpable than Sales, that alone does not
demonstrate that Martinez was a minor participant. See De Varon, 175 F.3d at
944.
Finally, the district court did not clearly err in rejecting Martinez’s argument
that the money courier may have been involved in the underlying conspiracy.
Neither Rosales’s proffer that Sales’s brother may have warned the victims of
Sales’s intent to rob them, nor Martinez’s statement to the undercover officer that
the victims would not resist, showed that the victims were part of the conspiracy.
Thus, Martinez’s theory that the victims were involved in the robbery was mere
speculation. Even if the victims were involved in the conspiracy, Martinez would
not be entitled to a minor-role reduction due to his involvement in planning the
robbery and obtaining a firearm. Based on the above, the district court did not
clearly err in denying Martinez’s request for a minor-role reduction.
5

Case: 12-12657

Date Filed: 01/11/2013

Page: 6 of 6

For the foregoing reasons, we affirm Martinez’s sentences.
AFFIRMED.

6