US v. Abner Martinez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-02135-JFA-1 Copies to all parties and the district court/agency. [999116324].. [12-4789]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4789

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABNER MARTINEZ,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-02135-JFA-1)

Submitted:

May 23, 2013

Before MOTZ and
Circuit Judge.

AGEE,

Decided:

Circuit

Judges,

and

May 28, 2013

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South
Carolina, for Appellant. John David Rowell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Abner Martinez appeals the district court’s judgment
imposing

a

168-month

conspiracy

to

sentence

possess

with

following

intent

to

his

guilty

plea

to

and

to

distribute

distribute five kilograms or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 (2006). On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), certifying that there are no meritorious issues
for

appeal

sentence.

but

questioning

the

reasonableness

of

Martinez’s

We affirm.
We review a sentence for reasonableness, applying a

deferential

abuse-of-discretion

standard.

States, 552 U.S. 38, 51 (2007).

Gall

v.

United

We must first ensure that the

district court committed no significant procedural error, such
as

improper

calculation

of

the

Sentencing

Guidelines

range,

insufficient consideration of the 18 U.S.C. § 3553(a) (2006)
factors and the parties’ sentencing arguments, and inadequate
explanation of the sentence imposed.
F.3d 572, 575 (4th Cir. 2010).
significant

procedural

error,

United States v. Lynn, 592

If the sentence is free from
we

reasonableness of the sentence.

also

Id.

review

the

substantive

The sentence imposed must

be “sufficient, but not greater than necessary, to comply with
the purposes” of sentencing.

18 U.S.C. § 3553(a).

A within-

Guidelines sentence is presumed reasonable on appeal, and the
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defendant

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bears

the

burden

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to

“rebut

the

presumption

by

demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.”

See United States v. Montes-

Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation
marks omitted).
We

conclude

that

the

district

court

imposed

procedurally and substantively reasonable sentence.

a

The court

properly calculated Martinez’s applicable Guidelines range.

The

court addressed the parties’ arguments, made detailed findings
on the record, and articulated the basis for the sentence it
imposed,

grounded

in

the

§

3553(a)

factors.

Finally,

we

conclude that neither Martinez nor the available record rebuts
the presumption of reasonableness accorded his within-Guidelines
sentence.

See Montes-Pineda, 445 F.3d at 379.
Martinez

ineffective

filed

assistance

of

a

pro

se

counsel

supplemental
in

plea

brief

raising

bargaining

because

Martinez did not realize that the Guidelines enhancements could
increase his sentence.

Because the record does not conclusively

establish that trial counsel rendered ineffective assistance, we
decline to address this claim on direct appeal.

See United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (conclusive
evidence of ineffective assistance must appear on the record).
In accordance with Anders, we have reviewed the record in this
case

and

have

found

no

meritorious
3

issues

for

appeal.

We

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therefore

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affirm

the

district

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court’s

judgment.

This

court

requires that counsel inform Martinez, in writing, of the right
to petition the Supreme Court of the United States for further
review.

If Martinez requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Martinez.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.

AFFIRMED

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