United States v. Michael Martinez , 558 F. App'x 426 ( 2014 )

Case: 13-50446 Document: 00512560569 Page: 1 Date Filed: 03/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50446 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
March 13, 2014
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
MICHAEL MARTINEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:12-CR-234-6
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Michael Martinez appeals his 360-month sentence from a guilty-plea
conviction for conspiracy to possess, with intent to distribute, one kilogram or
more of heroin. Martinez was held accountable at sentencing for distribution
of ten to 30 kilograms of heroin, and had an advisory Guideline-sentencing
range of 360 months to life.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-50446 Document: 00512560569 Page: 2 Date Filed: 03/13/2014
No. 13-50446
Martinez maintains the court clearly erred in its drug-quantity
calculation. Specifically, he contends, as he did before the district court, that
the evidence shows he distributed only 593.6 grams of heroin, rather than the
ten to 30 kilograms attributed to the other lead conspirators. Based on the
593.6-gram calculation, Martinez contends his total offense level should be 30,
instead of 36, resulting in an advisory range of 155 to 188 months’
imprisonment.
Under the sentencing regime in place after United States v. Booker, 543
U.S. 220 (2005), a “sentencing judge is entitled to find by a preponderance of
the evidence all the facts relevant to the determination of a Guideline
sentencing range and all facts relevant to the determination of a non-
Guidelines sentence”. United States v. Johnson, 445 F.3d 793, 798 (5th Cir.
2006) (citation and internal quotation marks omitted). The district court may
rely on any relevant evidence which has sufficient indicia of reliability. United
States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009). A district court’s findings of
fact for sentencing purposes, including a district court’s drug-quantity
determination, are reviewed only for clear error. United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005).
At sentencing, the court found “from [the] overwhelming preponderance
of the evidence” that the amount of drugs involved in the conspiracy was more
than ten kilograms of heroin. In that regard, Martinez is responsible for “all
foreseeable acts” in furtherance of the drug conspiracy. See U.S.S.G.
§1B1.3(a)(1)(B) (reasonably foreseeable acts of coconspirators are factors that
determine Guideline range). But, Martinez does not challenge the district
court’s “foreseeability” determination; therefore, he has failed to show the court
clearly erred in holding him accountable for ten to 30 kilograms of heroin under
§1B1.3(a)(1)(B). See, e.g., United States v. Solis, 299 F.3d 420, 447, 461-62 (5th
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No. 13-50446
Cir. 2002) (“Distribution and possession with intent to distribute offenses are
reasonably foreseeable acts in furtherance of a conspiracy to distribute drugs.”)
(citations omitted).
AFFIRMED.
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