United States v. Martinez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20218
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ MARTINEZ,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-134-1
__________________________________________
July 23, 2001
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
José Martinez appeals his conviction by a jury and the sentence imposed for
aiding and abetting and possession with intent to distribute more than 50 grams of
cocaine base or “crack”, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii)
and 18 U.S.C. § 2.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Martinez contends that insufficient evidence was presented to establish, for
sentencing purposes, that the substance involved was crack cocaine. The
undisputed evidence at trial more than adequately established that the substance
involved was crack cocaine. The record reflects the requisite evidence that the
substance at issue was crack. This contention is without merit.1
Martinez further contends that his indictment was insufficient because it did
not allege that he “unlawfully” delivered the drugs. The indictment contains the
essential elements required to establish possession with intent to distribute. It is
sufficient.2 Martinez also asserts that the indictment failed to charge an offense
because cocaine base is not listed in the statute as a controlled substance. As we
heretofore have noted, “[a]ll cocaine base is cocaine, and all is a controlled
substance.”3 This contention is devoid of merit.
Martinez finally contends that the district court erred by increasing his offense
level under U.S.S.G. § 3B1.1(c) based on his leadership role in the offense. The
record persuades that the trial court did not clearly err in assessing the two-level
increase for Martinez’s aggravating role.4
The conviction and sentence are AFFIRMED.
1
United States v. Canada, 110 F.3d 260 (5th Cir. 1997).
2
United States v. Ortega-Reyna, 148 F.3d 540 (5th Cir. 1998).
3
United States v. Deisch, 20 F.3d 139 (5th Cir. 1994).
4
United States v. Valencia, 44 F.3d 269 (5th Cir. 1995).
2