USA v. Martinez

Filing

UNPUBLISHED OPINION FILED. [08-40999 Affirmed 08-41035 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 10/29/2010 for Appellant Roberto Ortega Martinez [08-40999, 08-41035]

USA v. Martinez

Doc. 0

Case: 08-40999

Document: 00511258626

Page: 1

Date Filed: 10/08/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-40999 S u m m a r y Calendar October 8, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. R O B E R T O ORTEGA MARTINEZ, also known as Robert Ortega Martinez, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:06-CR-1089-6

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* R o b e r t o Ortega Martinez appeals both his guilty plea convictions and w it h in -g u id e lin e s sentence of 412 months' imprisonment for attempting to p o s s e s s , with intent to distribute, approximately two kilograms of cocaine in J u n e 2006 and using and carrying a firearm during the commission of that drugt r a ffic k in g offense. He contends: the district court committed plain error in m is a d v is in g him of the applicable penalties, resulting in a guilty plea that was n o t knowing, voluntary, and intelligent; his sentence was procedurally
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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m e t h a m p h e t a m in e and cocaine stolen in July 2006 as part of its drug-quantity c a lc u la t io n s for sentencing purposes. W e review only for plain error two issues that Martinez did not raise in d is t r ic t court: his guilty plea was involuntary, and his sentence was

p r o c e d u r a lly unreasonable. See United States v. Vonn, 535 U.S. 55, 59 (2002). Under plain-error review, we may reverse if, inter alia: there is error; it is clear o r obvious; and it affects defendant's substantial rights. E.g., United States v. M o lin a , 469 F.3d 408, 411 (5th Cir. 2006). For showing reversible plain error for his plea, Martinez must show a r e a s o n a b le probability that, but for the error, he would not have entered the p le a . Id. at 411­12. In contending his convictions must be vacated, Martinez c la im s an incorrect possible-penalties admonition rendered his guilty plea in v o lu n ta r y . Even assuming the district court committed plain error in

m is a d v is in g him of the applicable penalties, Martinez points to no record e v id e n c e showing the error affected his decision to plead guilty. See id. at 412; see also United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Accordingly, M a r t in e z fails to meet his burden under plain-error review. For the two sentencing issues, we engage in a bifurcated review of the s e n te n c e imposed by the district court. Gall v. United States, 552 U.S. 38, 50­51 (2 0 0 7 ). Although the substantive reasonableness of the sentence is ultimately r e v ie w e d under an abuse-of-discretion standard, we must first ensure that the d is t r ic t court committed no "significant procedural error", such as imposing a s e n te n c e based on clearly erroneous findings of fact. Id. at 51. Its application o f the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); U n ite d States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). We likewise reject Martinez' assertion that the district court committed p r o c e d u r a l error by attributing drug quantities to Martinez that were not proven 2

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t o a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 4 9 0 (2000). Because Martinez' drug-offense sentence was within the advisory G u id e lin e s sentencing range, the district court was required to find evidence of t h e drug quantity only by a preponderance of the evidence, and it was not plain e r r o r to do so. United States v. Doggett, 230 F.3d 160, 164­65 (5th Cir. 2000). Moreover, Martinez' within-guidelines sentence is entitled to a presumption of r e a s o n a b le n e s s which Martinez has not rebutted. Gall, 552 U.S. at 51. F in a lly , Martinez fails to show the district court committed clear error by in c lu d in g , as part of its drug-quantity calculations, methamphetamine and c o c a in e stolen in July 2006. See United States v. Posada-Rios, 158 F.3d 832, 878 (5 t h Cir. 1998). In determining the amount of drugs attributable to defendant, t h e sentencing court may consider any relevant information, without regard to it s admissibility, as long as the court concludes that it has sufficient indicia of r e lia b ilit y . Id. Consequently, the district court did not commit clear error in r e ly in g on the presentence investigation report and testimony from the trial of M a r t in e z ' codefendants to make its drug-quantity finding. See United States v. R a m ir e z , 963 F.2d 693, 708 (5th Cir. 1992). Although Martinez asserts the d is t r ic t court did not provide him adequate notice of its intent to rely upon that t r ia l evidence, he did not object on this basis at sentencing and has not shown t h a t the lack of notice affected the outcome of the district court proceedings. See P u c k e tt v. United States, 129 S. Ct. 1423, 1429 (2009). A F F IR M E D .

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