USA v. Victor Martinez-Sanchez

Filing

OPINION filed : AFFIRMED, decision not for publication. Ronald Lee Gilman, Circuit Judge; John M. Rogers, Authorizing Circuit Judge and Jeffrey S. Sutton, Circuit Judge. [12-1025, 12-1026]

Case: 12-1025

Document: 006111642286

Filed: 04/03/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0329n.06
Nos. 12-1025, 12-1026

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Apr 03, 2013

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR MARTINEZ-SANCHEZ,
Defendant-Appellant.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN

BEFORE: GILMAN, ROGERS, and SUTTON, Circuit Judges.
ROGERS, Circuit Judge. Victor Martinez-Sanchez appeals his 70-month within-guidelines
sentence for returning to the United States after being convicted of a felony and deported. He argues
that his sentence is procedurally unreasonable because the district court failed to recognize it had
discretion to depart from the sentencing guidelines on policy grounds. He also argues that the
sentence is substantively unreasonable. Neither argument has merit.
Victor Martinez-Sanchez has been deported from the United States several times, and has
returned each time. While in the United States, he has committed several crimes. In 2004, he pled
guilty to breaking and entering. PSR at 5. He was deported later that year. He returned to the
United States by 2007 (when he pled guilty to operating a vehicle with a suspended license and while
intoxicated) and spent 68 days in jail in 2010 after pleading guilty to participating in a home
invasion. PSR at 6. After being released, he was arrested for illegal reentry and was deported again

Case: 12-1025

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Nos. 12-1025, 12-1026
United States v. Martinez-Sanchez
in January of 2011. By August of 2011, he was back in the country again, and was arrested for
operating a vehicle under the influence of alcohol. He was still on supervised release when that
arrest was made.
Following his latest arrest, Martinez-Sanchez pled guilty to illegal reentry after deportation
subsequent to a conviction for a felony offense and to supervised-release violations. The district
court determined that, under the sentencing guidelines, the offense level was 21 and MartinezSanchez’s criminal history was Category IV. Accordingly, the guidelines range was 57 to 71 months
of imprisonment. Martinez-Sanchez did not object to the presentence report or to the calculation of
the guidelines range. He instead informed the district court that he illegally returned to the United
States so soon after being deported because his common law wife was pregnant and he was
concerned about her health and safety. He also asked the district court to vary downward from the
guidelines because he claimed that the guidelines provision that required a 16-level enhancement for
Martinez-Sanchez’s home-invasion conviction paints with too wide a brush in determining what
constitutes a crime of violence.
The district court noted that it recognized that the guidelines are discretionary and only “one
of the array of factors warranting consideration.” R.25, PageID #78. The court acknowledged its
“discretion in determining an appropriate sentence as recognized by [the] United States Supreme
Court in its decisions in Booker, Kimbrough, Rita, Gall, Spears, and the recent Sixth Circuit case
of Herrera-Zuniga.” Id. The court then noted that Martinez-Sanchez ignored its warnings not to
return to the United States, and returned less than a year after being deported. This demonstrated

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to the court that Martinez-Sanchez “has no respect for the immigration laws of our country.” Id. at
PageID #80. The court stated that it “appreciate[d] the fact that he has a youngster just born, that
he has a spouse who he cares about, but that’s no excuse for committing felonies, and that’s precisely
what this defendant has been doing.” Id. The court disbelieved Martinez-Sanchez’s claim that he
planned to return to Mexico with his family after taking care of his wife and children. The court
believed that Martinez-Sanchez “would have stayed here as long as he could until he was
apprehended again.” Id. at PageID #81. The court also determined that the 16-level increase for the
home invasion did not overstate the seriousness of that offense.
The court determined that Martinez-Sanchez’s actions “require[] a sentence that is at the high
end of the guideline range in this particular case” to promote respect for the immigration laws, to
deter Martinez-Sanchez from committing other offenses, and to ensure just punishment. Id. at
PageID #80–81. Accordingly, it sentenced Martinez-Sanchez to 70 months’ imprisonment, near the
top of, but still within, the guidelines range. The court also sentenced Martinez-Sanchez to 11
months’ imprisonment, to be served consecutively to the 70-month sentence, for the supervisoryrelease violation.
Martinez-Sanchez now appeals. He argues that his sentence is procedurally unreasonable
because the district court did not recognize that it could depart from the guidelines for policy
reasons. He also contends that his sentence is substantively unreasonable because the 16-level
enhancement for the home-invasion conviction overstates the seriousness of that crime.

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The district court demonstrated that it was aware of its abilities and responsibilities in
sentencing. It explained fully its reasoning for imposing a 70-month sentence. That reasoning was
legally correct and resulted in an appropriate sentence.
The sentence is procedurally reasonable because the district court identified its ability to
depart from the guidelines but explained that it did not find this to be an appropriate case to do so.
The district court stated that it “recognize[d] the guidelines are advisory,” that the court “must make
an individualized assessment based on the facts presented,” and that it had “discretion in determining
an appropriate sentence.” R.25, PageID #77–78. The district court specifically cited Spears v.
United States. Id. at PageID #78. In that case, the Supreme Court held that district courts have
authority to vary from the sentencing guidelines due to policy disagreements. Spears v. United
States, 555 U.S. 261, 264 (2009). The court also cited this court’s decision in United States v.
Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009), which held that the discretion to depart for policy
reasons is not limited to crack-cocaine sentencing. The district court was aware of its ability to
depart from the guidelines for policy reasons.
Although it was aware of its ability to vary downward for policy reasons, the court chose not
to do so for several reasons. First, the court noted that it had advised Martinez-Sanchez, when
sentencing him on his previous immigration violation, that he faced significantly more prison time
if he chose to return to the United States. He disregarded the law and the court’s warnings by
returning immediately, thus demonstrating to the court that he “has no respect for the immigration
laws” and therefore a longer sentence was warranted for deterrence purposes. Id. at PageID #80.

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Moreover, the court noted that Martinez-Sanchez lacked respect for criminal laws as well, that he
“does what he wants, when he wants to do it,” as evidenced by his prior felony conviction for a home
invasion. Id. Finally, the court stated that while it appreciated “the human aspects of this”—that
Martinez-Sanchez “has a youngster just born [and] a spouse who he cares about”— it did not believe
Martinez-Sanchez’s explanation that he was going to return to Mexico with his family as soon as he
could. Id. at PageID #80–81.
The court did not abuse its discretion in rejecting Martinez-Sanchez’s argument that the 16level enhancement overstates the seriousness of Martinez-Sanchez’s home-invasion conviction.
According to the presentence report,
Mr. Martinez-Sanchez accompanied his uncle and cousin to fight a man who had
allegedly taken his uncle’s job. The uncle kicked in the door whereupon they entered
the man’s house and a verbal altercation ensued. All the while the three were pushing
and slapping the man. The defendant’s cousin then brought out a chain and began
swinging it, hitting the man several times.
PSR at 6. The sentencing guidelines require a 16-level enhancement when a defendant was
previously deported for committing “a crime of violence.” U.S. Sentencing Guidelines Manual §
2L1.2(b)(1)(A)(ii) (2011). A crime of violence includes any offense “that has as an element the use,
attempted use, or threatened use of physical force against the person of another.” Id. at cmt.
1(B)(iii). Martinez-Sanchez did not challenge that his crime was a crime of violence under the
guidelines. R.25, PageID #75. He argues instead that the enhancement should not include the type
of crime Martinez-Sanchez committed. However, he participated in a crime that involved kicking
in a door and physically assaulting the victim. According to the presentence report, Martinez-

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Sanchez participated in pushing and slapping the victim. This crime is of the type the enhancement
was designed to cover, and the 16-level enhancement does not overstate its seriousness.
The district court determined that a 70-month within-guidelines sentence was appropriate
because of Martinez-Sanchez’s criminal history and demonstrated lack of respect for immigration
law. It did not abuse its discretion in doing so. See Gall v. United States, 552 U.S. 38, 51 (2007)
(explaining standard of review). Martinez-Sanchez’s sentence is substantively reasonable.
Because we conclude that Martinez-Sanchez’s sentence was reasonable, we affirm the district
court’s judgment.

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