USA v. Orlando Martinez

Filing

Case: 09-20782

Document: 00511197757

Page: 1

Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20782 S u m m a r y Calendar August 9, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. O R L A N D O ROBERTO ARIAS MARTINEZ, also known as Arias Orlando, also k n o w n as Orlando Arias, also known as Orlando Arias Martinez, also known as O r la n d o Martinez Arias, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-376-1

B e fo r e DEMOSS, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* O r la n d o Roberto Arias Martinez pleaded guilty to illegal presence in the U n ite d States following deportation after conviction for an aggravated felony and w a s sentenced to 72 months of imprisonment. The calculation of his guidelines s e n te n c i n g range of 70 to 87 months included a 16-level enhancement under

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Case: 09-20782

Document: 00511197757 Page: 2 No. 09-20782

Date Filed: 08/09/2010

U .S .S .G . § 2L1.2 because his prior deportation followed a Texas conviction for t h e manufacture/delivery of cocaine. Martinez asserts that his sentence violates the Eighth Amendment's g u a r a n t e e against cruel and unusual punishment. Because he did not raise this c la im in the district court, we review it for plain error. See United States v. M a r tin e z , 496 F.3d 387, 389 (5th Cir. 2007). A six-year sentence for a second ille g a l reentry offense by a defendant with a prior felony conviction for m a n u fa c t u r e / d e liv e r y of cocaine and several other convictions is not grossly d is p r o p o r t io n a t e to the crime. See Rummel v. Estelle, 445 U.S. 263, 284-85 (1 9 8 0 ); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). Next, Martinez contends that his sentence violates the Constitution's g u a r a n t e e of equal protection, arguing that there is a wide disparity of sentences b e tw e e n those who receive the 16-level enhancement under § 2L1.2 and similar o ffe n d e r s who lack a prior aggravated felony conviction. We review this newly r a is e d claim for plain error. See Martinez, 496 F.3d at 389. "The essence of an equal protection claim is that other persons similarly s it u a t e d as is the claimant unfairly enjoy benefits that he does not or escape b u r d e n s to which he is subjected." United States v. Cronn, 717 F.2d 164, 169 (5 t h Cir. 1983). Martinez fails to show how an alien who was previously

d e p o r t e d following conviction for an aggravated felony is similarly situated to an a lie n without a prior aggravated felony conviction or to any other offender who h a s committed an offense that has a lower offense level. The 16-level

e n h a n c e m e n t does not violate the guarantee of equal protection because it " t r e a t [s ] all persons with aggravated felonies who commit this crime equally." Cardenas-Alvarez, 987 F.2d at 1134. M a r t in e z also challenges the reasonableness of his sentence. He asserts t h a t the district court should have considered his argument at sentencing that ille g a l aliens serve harsher sentences than United States citizens. However, n o th in g in the record suggests that the district court neglected to consider the 2

Case: 09-20782

Document: 00511197757 Page: 3 No. 09-20782

Date Filed: 08/09/2010

a r g u m e n t ; the court listened to the argument during the sentencing hearing and s t a t e d specifically that it had "considered the submissions and arguments made" b e fo r e it announced the sentence. H e also contends that the illegal reentry Guideline, U.S.S.G. § 2L1.2, im p r o p e r ly double-counted his prior drug conviction to determine his offense le v e l instead of relying upon empirical data. He asserts that this double-

c o u n t in g was particularly unreasonable in his case because his prior conviction w a s not a violent crime, yet he received the same enhancement received by o ffe n d e r s whose prior offenses were violent. He further contends that his

p e r s o n a l characteristics weighed in favor of a lighter sentence because he was u n a w a r e of the stiff penalty he would face for reentering the United States since t h is was his first prosecution for an immigration offense. Because Martinez did n o t raise these objections in the district court, review is for plain error. See U n ite d States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Martinez's empirical data/double-counting challenge to the 16-level e n h a n c e m e n t under § 2L1.2 is foreclosed by our precedent. See United States v. D u a r te , 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); U n ite d States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. d e n ie d , 130 S. Ct. 192 (2009). The possibility that the 16-level enhancement c o u ld lead to an unjust sentence, "a persistent possibility under any system of s e n te n c in g ," does not affect the presumption of reasonableness that attaches to g u id e lin e s sentences under § 2L1.2. Duarte, 569 F.3d at 530. Martinez's

a r g u m e n t that he was unaware of the significant penalty for reentering the U n ite d States when he committed the offense does not rebut the presumption. He cites nothing to suggest that his ignorance of the law was a factor that should h a v e received substantial weight during sentencing. See United States v. Cooks, 5 8 9 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). In sum, h e fails to show that the district court committed a clear or obvious error in

3

Case: 09-20782

Document: 00511197757 Page: 4 No. 09-20782

Date Filed: 08/09/2010

s e n te n c in g him within a properly calculated guidelines range and thus fails to e s t a b lis h plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). The judgment of the district court is AFFIRMED.

4