USA v. Jeremy Martinez

Filing

UNPUBLISHED OPINION FILED. [15-50930 Affirmed 15-50931 Affirmed ] Judge: CDK , Judge: JLD , Judge: GJC Mandate pull date is 03/07/2017 for Appellant Jeremy Lee Martinez [15-50930, 15-50931]

Case: 15-50930

Document: 00513874779

Page: 1

Date Filed: 02/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50930
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 14, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEREMY LEE MARTINEZ, also known as Jeremy Martinez,
Defendant-Appellant
c/w No. 15-50931
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEREMY LEE MARTINEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:10-CR-34-1
USDC No. 7:08-CR-140-2

Case: 15-50930

Document: 00513874779

Page: 2

Date Filed: 02/14/2017

No. 15-50930
c/w No. 15-50931
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Jeremy Lee Martinez appeals the consecutive 10-month and 14-month
sentences he received upon revocation of his terms of supervised release. For
the first time on appeal, he contends that his sentences are procedurally and
substantively unreasonable. We review these newly raised arguments for
plain error only. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009). To establish plain error, Martinez must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. at 135.
Martinez raises two issues that he acknowledges are foreclosed by our
precedent, but presents them in order to preserve them for possible further
review. First, he challenges the requirement that a post-sentencing objection
is necessary to preserve an error for appellate review.

That argument is

foreclosed by our decision in Whitelaw, 580 F.3d at 260. Second, he argues that
a presumption of reasonableness should not be afforded to a consecutive,
within-guidelines revocation sentence because the policy statements in
U.S.S.G. § 7B1.1 lack an empirical basis, but concedes that the issue is
foreclosed by our decision in United States v. Mondragon-Santiago, 564 F.3d
357, 366 (5th Cir. 2009).
Martinez also argues that the district court offered only a cursory
explanation for its sentences and argues that the district court failed to
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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Case: 15-50930

Document: 00513874779

Page: 3

Date Filed: 02/14/2017

No. 15-50930
c/w No. 15-50931
consider the 18 U.S.C. § 3553(a) factors when imposing his sentences. He fails
to show any reversible plain error. See Puckett, 556 U.S. at 135.
Because the revocation sentences fall within the advisory guidelines
range, little additional explanation was required. See United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). The district court implicitly considered the
permissible § 3553(a) factors when it listened to Martinez’s arguments in
mitigation and the Government’s reminder that previous revocations of his
supervised release were based on the same reporting violations. See Whitelaw,
580 F.3d at 262-65. Moreover, Martinez cannot show that his substantial
rights were affected or that any error seriously affected the public reputation
of the proceedings as nothing in the record suggests that a more thorough
explanation would have resulted in lesser sentences. See id. at 264-65.
Additionally, Martinez fails to show that the combined 24-month
sentence is substantively unreasonable. The district court had the discretion
to run his sentences consecutively. See id. at 260-61. Because each revocation
sentence falls within the advisory range and is consistent with the Guidelines’
policy regarding consecutive sentences, it is entitled to a presumption of
reasonableness. See U.S.S.G. § 7B1.4(a), (b)(1); U.S.S.G. § 7B1.3(f); see also
United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). Martinez’s
argument that the total sentence is excessive and greater than necessary to
achieve the sentencing goals of § 3553(a) fails to rebut the presumption of
reasonableness attached to his sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009).
AFFIRMED.

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