USA v. Oscar Martinez
UNPUBLISHED OPINION FILED. [16-60362 Dismissed ] Judge: JLW , Judge: JLD , Judge: LHS Mandate pull date is 11/02/2017 for Appellant Oscar Martinez; granting motion to dismiss appeal filed by Appellee USA [8510393-2]; denying as moot motion for summary affirmance filed by Appellee USA [8510393-3] [16-60362]
Date Filed: 10/12/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
October 12, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:16-CR-12-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Oscar Martinez pled guilty pursuant to a written plea agreement to
conspiracy to distribute methamphetamine, and the district court sentenced
him to 240 months of imprisonment. He contends that the district court erred
when it increased his offense level by two levels pursuant to U.S.S.G.
§ 2D1.1(b)(1) and an additional two levels pursuant to § 2D1.1(b)(5).
further argues that the district court failed to properly weigh the 18 U.S.C.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 10/12/2017
§ 3553(a) sentencing factors. The Government responds by moving to dismiss
the appeal or, alternatively, for summary affirmance based upon the appeal
waiver in Martinez’s plea agreement.
This court reviews the validity of an appeal waiver de novo. See United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). We rely solely on the
record before us. Cf. United States v. Corbett, 742 F.2d 173, 177 (5th Cir. 1984).
The record establishes that Martinez knowingly and voluntarily agreed to the
appeal waiver, and the record rebuts his claims that the Government breached
the agreement. Thus, the appeal waiver is enforceable. See United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Further, Martinez’s challenge to his
sentence does not fall within the only exception stated in the appeal waiver,
which concerns ineffective assistance of counsel. See United States v. Bond,
414 F.3d 542, 544 (5th Cir. 2005).
The Government’s motion to dismiss the appeal is GRANTED.
alternative request for summary affirmance is DENIED as moot.
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