United States v. Martinez ( 2012 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    May 11, 2012
    TENTH CIRCUIT                   Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,                        No. 11-3363
    (D.C. Nos. 5:11-CV-04085-SAC and
    v.                                               5:10-CR-40091-SAC-1)
    (D. of Kan.)
    ANDRES MARTINEZ,
    Defendant-Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
    Andres Martinez, a federal prisoner, seeks a certificate of appealability
    (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion to
    vacate, set aside, or correct his sentence. Martinez is serving a 120–month
    sentence for distributing methamphetamine and traveling in interstate commerce
    to promote his methamphetamine distribution enterprise, and he seeks relief on
    *
    This order is not binding precedent except under the doctrines of law of
    the case, res judicata and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    the grounds that he was denied effective assistance of counsel at trial. We
    conclude the district court properly denied Martinez’s § 2255 motion.
    Having jurisdiction pursuant to 28 U.S.C. § 1291, we DENY the application
    for a COA and DISMISS the appeal.
    I. Background
    Martinez pleaded guilty without the benefit of a plea agreement to three
    counts of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and
    four counts of traveling in interstate commerce to promote his distribution, 21
    U.S.C. § 841(a)(1); 18 U.S.C. § 1952. He received a sentence of 120 months for
    each distribution count and 60 months for each interstate travel count, running
    concurrently. This is the statutory minimum. 21 U.S.C. § 841(b)(1)(A)(viii).
    He did not appeal.
    He filed a timely motion to vacate, set aside, or correct his sentence under
    28 U.S.C. § 2255, claiming that his counsel was ineffective for not arguing that
    he was eligible for a safety-valve exception, a minor role reduction, and an
    entrapment reduction. He also claims that his counsel improperly failed to
    preserve these arguments for appeal.
    The district court denied a COA and dismissed his case, finding that
    although Martinez’s lawyer properly raised two of these points below, they were
    all meritless.
    -2-
    II. Discussion
    To obtain a COA, Martinez must make “a substantial showing of the denial
    of a constitutional right.” 28 U.S.C. § 2253(c)(2). That showing requires
    demonstrating that “reasonable jurists could debate whether (or, for that matter,
    agree that) the petition should have been resolved in a different manner or that the
    issues presented were adequate to deserve encouragement to proceed further.”
    Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000); see also Miller–El v. Cockrell, 
    537 U.S. 322
    , 348 (2003) (“The COA inquiry asks only if the District Court’s decision
    was debatable.”).
    A successful claim of ineffective assistance of counsel must meet the
    two-pronged test set forth in Strickland v. Washington, 
    466 U.S. 668
    , 690 (1984).
    First, the defendant “must identify the acts or omissions of counsel that are
    alleged not to have been the result of reasonable professional judgment.” Id.
    Second, the defendant must show that his counsel’s deficient performance
    actually prejudiced his defense by showing “there is a reasonable probability that,
    but for counsel’s unprofessional errors, the result of the proceeding would have
    been different.” Id. at 694.
    Martinez fails on the first prong. He could not identify any “acts or
    omissions of counsel.” Id. at 690. In his § 2255 motion Martinez lists three
    arguments he believes that his counsel ought to have raised and preserved for
    -3-
    appeal, but he alleges no factual basis for these claims and fails to mention that
    two of them were actually properly raised by his counsel at the appropriate time.
    First, he claims his lawyer failed to request safety-valve relief at
    sentencing. But the record shows counsel did object:
    The offense level should be at least four levels lower with the
    application of a role adjustment, U.S.S.G. § 3B1.2, and the safety
    valve provisions of U.S.S.G. §§ 2D1.1(11) and 5C1.2(a). Thus the
    total offense level (¶ 29) should be 28 for a Guideline Range of
    78–97 months (¶ 53). Mr. Martinez was merely a runner of the drugs
    for the true dealer. He had been doing this only a very short time
    before he was arrested, and he otherwise complied with the
    provisions of 5C1.2(a) prior to his being charged in federal court.
    Presentencing Report, R., V. III at 27.
    His second contention is that counsel failed to ask for a minor role
    reduction to his sentence because he was only a drug courier. But the record also
    discloses counsel did ask for this reduction. A request for a downward departure
    would have been pointless in any event, in the absence of the safety-valve,
    because Martinez received the statutory minimum sentence.
    His third contention is that his counsel did not request a sentencing
    reduction for sentencing entrapment. Sentencing entrapment or manipulation is a
    “due process principle allowing a court to modify a sentence if, considering the
    totality of the circumstances, the government’s conduct is so shocking,
    outrageous and intolerable that it offends the universal sense of justice,” such as
    heavily pressuring the defendant during a sting operation to deal a higher volume
    -4-
    of drugs than he otherwise would, and can be the basis for a downward variance
    or departure. United States v. Beltran, 
    571 F.3d 1013
    , 1019 (10th Cir. 2009)
    (quotation omitted). Martinez provides no ground for us to conclude that he
    might be entitled to this relief. He asks for an evidentiary hearing on whether he
    is entitled to an entrapment adjustment, but provides no allegations as to what
    facts he hopes to establish at such a hearing. Furthermore, he received the
    minimum sentence allowed by statute, so the sentencing court had no discretion to
    further reduce his sentence. United States v. Verners, 
    103 F.3d 108
     (10th Cir.
    1996).
    In sum, the district court did not err in denying Martinez’s ineffective
    assistance of counsel claim.
    III. Conclusion
    We DENY Martinez’s application for a COA and DISMISS his appeal.
    ENTERED FOR THE COURT,
    Timothy M. Tymkovich
    Circuit Judge
    -5-
    

Document Info

Docket Number: 11-3363

Judges: Kelly, Tymkovich, Gorsuch

Filed Date: 5/11/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024