United States v. Martinez , 285 F. App'x 921 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-29-2008
USA v. Martinez
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3008
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Martinez" (2008). 2008 Decisions. Paper 782.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/782
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3008
UNITED STATES OF AMERICA
v.
RAFAEL MARTINEZ, JR.,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 04-cr-00147-4)
District Judge: The Honorable Joseph A. Greenaway
Submitted Under Third Circuit LAR 34.1(a)
June 27, 2008
Before: SLOVITER, BARRY and ROTH, Circuit Judges
(Opinion Filed: July 29, 2008)
OPINION
BARRY, Circuit Judge
Rafael Martinez, Jr. appeals his sentence of 121 months’ imprisonment for
conspiring to distribute cocaine. We will affirm.
I.
Martinez was arrested on February 26, 2004 moments after he and several
associates sold approximately 3.3 kilograms of cocaine to an undercover drug
enforcement officer. Several months later, he entered into a cooperating plea agreement
with the government under which he agreed to plead guilty to one count of conspiracy to
distribute and possess with the intent to distribute more than 500 grams of cocaine,
contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), in violation of 21 U.S.C. § 846, and the
government agreed to move for a downward departure on his behalf were he to render
substantial assistance.
Subsequent to entering his plea of guilty, but before his sentencing, Martinez was
arrested and convicted in Virginia for conspiracy to distribute and possess with the intent
to distribute 1 kilogram of cocaine. As a result of this Virginia conviction, the
presentence investigation report (“PSR”) recommended that he not receive a downward
adjustment in his offense level for acceptance of responsibility because “[h]is conduct is
not illustrative of an individual who is truly remorseful for the crimes with which he has
been charged.” Martinez’s attorney objected in two letters to the Court, arguing that
[t]he conduct for which he was arrested in Virginia was undertaken by him
in furtherance of [his plea] agreement. Even though the Government did
not authorize it, he was attempting to secure the confidence of a potential
target [named “Victor”]—one whose name and contact information he had
shared with DEA agents.
(App. at 6) (emphasis added.)
2
Martinez’s attorney continued this argument at the sentencing hearing, and
asserted, for the first time, that phone records would support his contention that Martinez
had spoken with his DEA handlers about “Victor” in the days leading up to his arrest in
Virginia. The government disputed Martinez’s assertion that he had previously provided
it with information about “Victor,” and advised the District Court that Martinez’s
handlers had not heard from him for several months before his arrest. Given the factual
dispute and believing that Martinez was attempting to show that he had purchased the
drugs with the government’s imprimatur, the Court initially believed that the sentencing
hearing should be adjourned so that additional facts could be gathered. After it became
clear that Martinez was not claiming that his handlers had approved the purchase that led
to the Virginia conviction—he was only attempting to show that he had provided the
DEA with information about “Victor” prior to his arrest, a position the Court was “willing
to accept” – the Court concluded that an adjournment was not necessary. The Court
declined, however, to award a downward adjustment for acceptance of responsibility
given that Martinez’s claim that he told the DEA about “Victor” “doesn’t contradict the
fact that he engaged in criminal conduct.”
With an offense level of 28 and a criminal history category of III, the District
Court calculated Martinez’s range of imprisonment to be 97 to 121 months and imposed a
3
sentence of 121 months’ imprisonment, to be followed by a 5-year period of supervised
release. This timely appeal followed.1
II.
Martinez argues that: (1) the District Court erred by refusing to adjourn the
sentencing hearing so that he could gather additional evidence in support of his motion
for a downward adjustment for acceptance of responsibility; (2) the Court erred by not
granting him that downward adjustment; (3) the Court failed to give “meaningful
consideration” to the factors set forth in 18 U.S.C. § 3553(a); and (4) the sentence
imposed by the Court was not reasonable.2
A. Adjournment Request
We have little difficulty concluding that the District Court’s decision to proceed
with sentencing as scheduled did not constitute an abuse of discretion. See Gov’t of V.I.
v. Charleswell, 115 F.3d 171, 174 (3d Cir. 1997) (stating that the decision to grant or
deny an adjournment request “is traditionally within the discretion of the trial judge who
must be given wide latitude in arranging the court’s schedule”). Because the Court
1
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
Martinez also argues that his attorney’s failure to properly investigate the
circumstances surrounding his arrest and conviction in Virginia and to adequately present
the facts to the District Court at the sentencing hearing constituted ineffective assistance
of counsel. We generally do not entertain claims of ineffective assistance of counsel on
direct appeal, and will not do so now. See, e.g., United States v. Thornton, 327 F.3d 268,
271 (3d Cir. 2003) (stating that “[i]t has long been the practice of this court to defer the
issue of ineffectiveness of trial counsel to a collateral attack”).
4
assumed for purposes of sentencing the only fact that Martinez sought to prove (i.e., that
he had spoken with the agents about “Victor” prior to his arrest), there was no reason that
the sentencing hearing could not move forward.
B. Sentencing Challenges
“Booker contemplates that the district court will impose a discretionary sentence
after consideration of the [PSR], as well as the advisory Guidelines, the grounds properly
raised by counsel, the defendant’s allocution, any victim statements, and other relevant
evidence.” United States v. Gunter, 527 F.3d 282, ___ n.2 (3d Cir. 2008). To accomplish
this goal, the district court must sentence defendants using a three-step process. First, it
“must begin the process by correctly calculating the applicable Guidelines range.” United
States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008). Next, it must formally rule on any
motions for departure. Id. “Finally, after giving both sides the chance to argue for the
sentences they deem appropriate, the court must exercise its discretion by considering all
of the § 3553(a) factors and determining the appropriate sentence to impose.” Id. at 216-
17. “If we determine that the district court has committed no significant procedural error,
we then review the substantive reasonableness of the sentence under an abuse-of-
discretion standard, regardless of whether it falls within the Guidelines range.” Id. at 218.
Martinez contends, first, that he was entitled to a lower offense level based on his
acceptance of responsibility. We review a district court’s decision to grant or deny a
defendant’s motion for a downward adjustment on this ground for clear error. United
5
States v. Bennett, 161 F.3d 171, 196 (3d Cir. 1998) (stating that “the District Court’s
decision whether to grant the adjustment is entitled to ‘great deference’ on review
because ‘the sentencing judge is in a unique position to evaluate a defendant’s acceptance
of responsibility’”) (quoting USSG § 3E1.1 cmt. n.5).
The application notes indicate that among the considerations a court should take
into account when determining whether a defendant is entitled to a downward adjustment
for acceptance of responsibility is whether the defendant has voluntarily terminated or
withdrawn from criminal conduct, USSG § 3E1.1 cmt. n.1 (2006), and that
[e]ntry of a plea of guilty prior to the commencement of trial combined with
truthfully admitting the conduct comprising the offense of conviction, and
truthfully admitting or not falsely denying any additional relevant conduct
for which he is accountable . . . will constitute significant evidence of
acceptance of responsibility for the purposes of subsection (a). However,
this evidence may be outweighed by conduct of the defendant that is
inconsistent with such acceptance of responsibility. A defendant who enters
a guilty plea is not entitled to an adjustment under this section as a matter
of right.
Id. cmt. n.3 (emphasis added).
The District Court denied Martinez’s motion for a downward adjustment for
acceptance of responsibility on the ground that his post-guilty plea conviction in Virginia
demonstrated that he had not fully withdrawn from criminal conduct. Although Martinez
tried to explain away his conduct as an attempt—“albeit in a foolhardy and ham-fisted
manner—to merit a downward departure for substantial cooperation” (App. at 23), it is
undisputed that he undertook this criminal activity without the approval of the
6
government. Accordingly, the Court did not clearly err in denying the motion for a
downward adjustment.
Martinez also contends that the District Court failed to give meaningful
consideration to the factors set forth in 18 U.S.C. § 3553(a) and that his sentence was
otherwise unreasonable. We disagree. In arguing for a term of imprisonment of only 60
months, a sentence far below the applicable Guidelines range of 97 to 121 months’
imprisonment, Martinez highlighted his willingness to plead guilty, that this was his first
felony conviction, that the crime was not a crime of violence, and that he had a wife and
children who relied on him for financial support. Prior to sentencing him to the top of the
recommended range, the Court stated:
Mr. Martinez has submitted many letters from family members and
other loved ones on his behalf, all of which paints a wonderful picture of
him as a person.
But that is only part of what this Court must take into account in
arriving at an appropriate sentence. Mr. Martinez is also an accomplished
drug dealer. He has access to and was involved in deals that were multiple
kilograms. The [PSR] points that out. The facts of – and, of course, that’s
relevant conduct the Court should take into account.
When he pled guilty to – what he pled guilty to was approximately a
three and a half kilogram deal, and what he shared at the time of the deal
certainly talked about his ability to do large deals and the fact that he had
done many large deals before.
All of this certainly tells this Court that the nature and circumstances
of the offense and history and characteristics of this particular defendant
requires this Court to not allow the leniency that counsel has alluded to on
his client’s behalf.
Mr. Martinez has a large extended family, but, obviously, this Court
must consider and take into account those who have no voice, and that is
those who have been subject to the drugs that Mr. Martinez has brought into
7
our area. As such, it is my firm desire that this sentence take into account
those who cannot speak for themselves.
(App. at 74-75.)
We are more than satisfied that the District Court gave meaningful consideration to
the section 3553(a) factors and conclude that it did not abuse its discretion in sentencing
Martinez to a term of imprisonment of 121 months.
III.
For the foregoing reasons, we will affirm the judgment of sentence.
8