USA v. Andrew Martin

Filing

OPINION filed : The district court's judgment is AFFIRMED, decision not for publication. Ralph B. Guy , Jr., Raymond M. Kethledge (authoring), Jane Branstetter Stranch, Circuit Judges.

Case: 13-4015

Document: 37-1

Filed: 07/10/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0504n.06
No. 13-4015

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW MARTIN,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)
)

Jul 10, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT
FOR
THE
NORTHERN DISTRICT OF
OHIO

Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. Andrew Martin appeals his within-Guidelines sentence for
seeking to hire a hit man to murder an 80-year-old woman whom Martin sought to defraud. We
affirm.
In 2010, a man named George Warehime passed away.

The local probate court

appointed his sister, Joy Comey, as administrator of the estate. In that role, Comey contracted to
sell Warehime’s house. Comey went to the house one day and, to her surprise, found Andrew
Martin and David Simons inside. They told Comey that Warehime had already transferred the
house to Simons months before.
In fact, Martin and Simons had never met Warehime. Instead, they had filed a fraudulent
quitclaim deed with the local recorder purporting to effect the transfer. Then Martin, a nurse at
the Cleveland Clinic, gained unauthorized access to Warehime’s medical records so that Simon

Case: 13-4015

Document: 37-1

Filed: 07/10/2014

Page: 2

No. 13-4015
United States v. Martin
could fabricate a story about a relationship with Warehime in order to make the putative transfer
look legitimate. A tussle over the house followed in probate court.
Meanwhile, Martin encountered a patient at the Cleveland Clinic who “looked like a big
guy[.]” Martin asked if the patient had ever “hurt anyone.” The patient said “yes, no, maybe.”
Martin asked if the patient had ever killed anyone. The patient replied, “I shot someone in the
leg once.” Martin then offered the patient a “job” to “take someone out”: Joy Comey. Martin
explained that Comey had “been trying to mess up his life[,]” and that he wanted the patient to
“put four in her head and make it look like a robbery.” The patient purported to agree for a price
of $10,000.
The patient then contacted the police. Martin thereafter pled guilty to using interstatecommerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958,
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and wrongful disclosure of
personal-health information, in violation of 42 U.S.C. § 1320d-6. The district court sentenced
Martin to 144 months’ imprisonment on the wire-fraud conspiracy charge, and 120 months’ on
each of the other two charges (all to run concurrently). Martin now appeals his sentence as
procedurally and substantively unreasonable.
Martin first argues that the district court failed to consider his request for a variance
based upon his mental problems, failed to explain the sentence on the whole, and failed to apply
the 18 U.S.C. § 3553(a) sentencing factors. Any of these three putative errors would make the
sentence procedurally unreasonable. See United States v. Petrus, 588 F.3d 347, 354 (6th Cir.
2009). When offered the chance below, however, Martin did not object to the procedural
reasonableness of his sentence. We therefore review for plain error. United States v. Brinley,
684 F.3d 629, 635 (6th Cir. 2012).

-2-

Case: 13-4015

Document: 37-1

Filed: 07/10/2014

Page: 3

No. 13-4015
United States v. Martin
There was none here. The district court went through the § 3553(a) factors and explained
how they applied to Martin. In doing so, the court detailed Martin’s mental problems—posttraumatic stress

disorder, anxiety, depression, obsessive-compulsive disorder, opiate

dependency—and told him “certainly you have problems mentally and emotionally . . . I will
take that in consideration.” But the court also pointed out that Martin had abused his job as a
nurse to access Warehime’s medical records, “bullied” Comey (an 80-year-old woman), and
“thought out” and “planned” the fraud and murder. Only then—after it had considered his
variance argument, applied the § 3553(a) factors, and explained the sentence on the whole—did
the court sentence Martin. His procedural-reasonableness argument thus fails.
As for substantive reasonableness, we review Martin’s sentence for an abuse of
discretion. See United States v. Cunningham, 669 F.3d 723, 728 (6th Cir. 2012). A sentence is
substantively unreasonable if, among other things, the district court relied on “impermissible
factors” in reaching the sentence. Id. at 733.

One impermissible factor is the defendant’s

socioeconomic status. See U.S.S.G. § 5H1.10. Martin says that the district court relied on that
factor here when it discussed his job as a nurse. The court explained that Martin had abused his
job in order to access Warehime’s medical records, and that while Martin was doing his job—
“taking care of people, thinking through their needs”—he was also “plotting to have someone
killed.” Thus, the court considered Martin’s job not as a stand-in for socioeconomic status, but
to demonstrate Martin’s full awareness of the deeply wrongful nature of his conduct. Martin’s
substantive-reasonableness argument also fails.
The district court’s judgment is affirmed.

-3-