USA v. Martir Martinez-Games

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USA v. Martir Martinez-Games

Doc. 0

Case: 09-41157

Document: 00511209974

Page: 1

Date Filed: 08/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41157 S u m m a r y Calendar August 20, 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. M A R T I R ADIEL MARTINEZ-GAMES, 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. 5:09-CR-1314-3

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* M a r t ir Adiel Martinez-Games appeals the sentence imposed following his ju r y trial conviction for illegal reentry following deportation in violation of 8 U .S .C . § 1326(a). He argues that the district court plainly erred 1 in sentencing

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Martinez-Games argues that he should not be faulted for failing to object to the upward variance because his counsel was "dumbstruck" by the variance. While we conclude that plain error review is appropriate here, we note that this case does not turn on the standard of review.
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Case: 09-41157

Document: 00511209974 Page: 2 No. 09-41157

Date Filed: 08/20/2010

h im above the recommended guidelines range.2 Specifically, he argues that the d is t r ic t court failed to give him adequate notice of its intent to impose an aboveg u id e lin e s sentence and that his sentence was unreasonable because it was b a s e d upon conduct that he was acquitted of by the jury. He also argues that his s e n te n c e is unreasonable because it failed to take into account that his offense w a s not serious, that his offense was not violent, that he was not a danger to h u m a n it y , and that a harsher sentence would not stem the tide of illegal aliens c o m in g into this country. He additionally contends that the district court did not s t a t e sufficient reasons to justify the above-guidelines sentence because it did n o t identify what relevant conduct was the basis for the higher sentence. B eca u se Martinez-Games appellate arguments are raised for the first time b e fo r e this court, our review is for plain error. See United States v. LopezV e la s q u e z , 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008); U n ite d States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain e r r o r , Martinez-Games must show a forfeited error that is clear or obvious and t h a t affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1 4 2 9 (2009). If he makes such a showing, this court has the discretion to correct t h e error but only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. See id. M ar t in e z -G a m e s 's arguments that the district court erred by failing to give a d v a n c e warning of its intent to impose a non-Guidelines sentence and in c o n s id e r in g conduct of which he was acquitted by the jury are without merit. See Irizarry v. United States, 553 U.S. 708, 128 S. Ct. 2198, 2202-04 (2008)(the n o tic e requirements of Federal Rule of Criminal Procedure 32(h) do not apply to v a r ia n c e s ); United States v. Watts, 519 U.S. 148, 157 (1997)(acquittal does not p r e c lu d e a finding by a preponderance of the evidence in sentencing proceeding

The guidelines range was 0-6 months. Martinez-Games received a sentence of 24 months in prison followed by a period of supervised release.

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t h a t conduct was committed); United States v. Mejia-Huerta, 480 F.3d 713, 722 (5 t h Cir. 2007)(variances, as opposed to guidelines departures, are not subject t o the notice requirements of Rule 32(h)). Moreover, the district court

a r t ic u la t e d sufficient reasons for the sentence and thus did not commit clear or o b v io u s procedural error in sentencing Martinez-Games. See United States v. K e y , 599 F.3d 469, 474 (5th Cir. 2010). The district court noted that it

r e m e m b e r e d the trial, which, as summarized by the presentence report (PSR), in c lu d e d the testimony of several witnesses that identified Martinez-Games as a person involved in a human smuggling organization that was keeping u n d o c u m e n te d aliens at a safe house in Laredo, Texas. In addition, the district c o u r t noted the undisputed post-trial admissions made by Martinez-Games to t h e probation officer that he was involved in the organization. Finally, the d is t r ic t court stated that the upward variance was based upon its review of the 1 8 U.S.C. § 3553(a) factors and it specifically cited the factors of promoting r e s p e c t for the law and deterring future criminal conduct. Although the district court's variance is significant, we have affirmed s u b s t a n t ia l variances and departures in other cases based upon the specific facts o f those cases. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2 0 0 8 )(v a r ia n c e from guideline maximum of 51 months to a sentence of 180 m o n th s ); United States v. Smith, 440 F.3d 704, 706, 708 n.5, 709-10 (5th Cir. 2 0 0 6 )(v a r i a n c e from 27 months to 60 months); United States v. Saldana, 427 F .3 d 298, 312 (5th Cir. 2005)(variance to a sentence that was "quadruple" the m a x im u m under the guidelines); United States v. Rosogie, 21 F.3d 632, 633-34 ( 5 t h Cir. 1994)(variance of 400% from guideline maximum). Accordingly, the d is t r ic t court's judgment is AFFIRMED.

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