United States v. Martinez ( 2023 )

Case: 21-11238 Document: 00516639439 Page: 1 Date Filed: 02/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 8, 2023
No. 21-11238 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Ricardo Martinez, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-157-1
Before Stewart, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Luis Ricardo Martinez, Jr., pled guilty to possession of a firearm by a
convicted felon. After applying a four-level enhancement, the district court
sentenced Martinez to 37 months’ imprisonment to be followed by a three-
year term of supervised release. Because the record supports the district
court’s application of the enhancement, we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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On January 23, 2021, a woman standing outside with her children at
an apartment complex noticed Martinez and his girlfriend, Gabrielle Kough,
arguing in the parking lot of a neighboring property. She observed that
Martinez was holding a shotgun and heard him threatening to shoot people.
She then heard Martinez tell Kough to “call the police so he could shoot
them as well.” Alarmed by Martinez’s behavior and statements, the woman
called 911 and reported the incident to the police.
When officers arrived, Kough reported that Martinez had woken up
in a “bad mood” and made statements about people chasing him. She
explained that Martinez suffered from bipolar disorder and schizophrenia
and prior to that day, he had been having “mental episodes.” She stated that
Martinez went to the store but returned more agitated, claiming that people
were coming after him and he needed to use her car to leave. She tried to
prevent Martinez from leaving the apartment but was unsuccessful. Kough
confirmed that once outside in the parking lot, Martinez retrieved a shotgun
from her car, pointed it at the ground, and continued to shout and argue with
her. Unable to calm Martinez, Kough retreated to her apartment.
Martinez sped off in Kough’s car just before officers arrived at the
scene, so they pursued him. Officers observed Martinez attempt to enter
another vehicle at a red light before jumping back into Kough’s car, and then
saw him lose control of the vehicle and crash. Because law enforcement had
been notified by dispatch that Martinez had a weapon, one of the officers
approached the crashed vehicle with his weapon drawn and gave verbal
commands for Martinez to show his hands and step out of the car. The officer
then saw Martinez begin to make furtive movements inside the vehicle,
reaching around the front and back seat. The officer continued to give verbal
commands and Martinez ultimately complied, exited the vehicle, and was
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arrested.1 Officers subsequently conducted a search of the vehicle and a
broken shotgun, loaded with one unfired shell, was located in plain view on
the passenger side of the car.2
In July 2021, Martinez pled guilty, without the benefit of a plea
agreement, to possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). His total offense level of 15 combined
with his criminal history category of V yielded a recommended guidelines
range of 37 to 46 months. The calculated guidelines range included a four-
level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because the
probation officer concluded that Martinez used or possessed a firearm in
connection with the felony offense of aggravated assault on grounds that he
“threaten[ed] to shoot individuals, including police if they were called”
while holding a firearm.
Martinez objected to the § 2K2.1(b)(6)(B) enhancement in writing
and at sentencing arguing that his conduct did not rise to the level of
aggravated assault. The district court overruled Martinez’s objection and
sentenced him to 37 months in prison to be followed by a three-year term of
supervised release. The district court stated that it would have imposed the
same sentence irrespective of the guidelines based upon Martinez’s criminal
history and risk of recidivism. It further noted that although this was a
“textbook case for an upward variance or an upward departure,” it did not
impose one because it took “pity” on Martinez based on his counsel’s
1
According to the record, Martinez sustained a serious head injury as a result of
the accident.
2
Martinez and the vehicle that he crashed matched the description of a suspect
and a vehicle that were involved in a robbery earlier that same day. Likewise, stolen
property from that robbery was later recovered in Martinez’s apartment.
3
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mitigating arguments regarding his history of mental illness and his head
injury from the crash. Martinez appealed.
II. STANDARD OF REVIEW
We review the district court’s application of the Guidelines de novo
and its fact findings for clear error. United States v. Jeffries, 587 F.3d 690, 692
(5th Cir. 2009). “A district court’s determination that a firearm was used or
possessed in connection with another felony offense for purposes of U.S.S.G.
§ 2K2.1(b)(6)(B) is a factual finding that is reviewed for clear error.” United
States v. Bass, 996 F.3d 729, 742 (5th Cir. 2021).3 “When making factual
findings at the sentencing stage, a district court may consider any information
that bears sufficient indicia of reliability to support its probable accuracy.”
United States v. Hawkins, 866 F.3d 344, 347 (5th Cir. 2017) (internal
quotation marks and citation omitted). “A factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole.” Jeffries,
587 F.3d at 692. Moreover, “[w]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly
erroneous.” United States v. Harris, 740 F.3d 956, 967 (5th Cir. 2014).
III. DISCUSSION
On appeal, Martinez argues that the district court clearly erred in
determining that he committed Texas aggravated assault because he did not
3
We have also applied the clear error standard of review in cases involving the
application of the § 2K2.1(b)(6)(B) enhancement in conjunction with the felony offense of
Texas aggravated assault. See United States v. Longoria, 713 F. App’x 327, 327–28 (5th Cir.
2018) (per curiam) (“The evidence supports the conclusion that [the defendant’s] conduct
in pointing the gun in the direction of the victims and firing it exhibited an intent to threaten
bodily injury.”); United States v. Jackson, 453 F.3d 302, 304, 307–08 (5th Cir. 2006)
(concluding there was no clear error in holding that the defendant’s conduct constituted
Texas aggravated assault where the defendant pushed his girlfriend to the ground,
brandished a firearm, and fired a shot into the air).
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No. 21-11238
threaten his girlfriend or the 911-caller and because he never directly
threatened the police. We are unpersuaded.
Under the sentencing guidelines, section 2K2.1(b)(6)(B) provides for
a four-level enhancement when a defendant “use[s] or possesse[s] any
firearm or ammunition in connection with another felony offense.”
“Another felony offense” is defined as “any federal, state, or local
offense . . . punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction
obtained.” § 2K2.1, comment. (n.14(C)). The test for the § 2K2.1(b)(6)(B)
enhancement depends on the type of other felony alleged. See Jeffries, 587
F.3d at 692–93. Where the other felony is not a burglary or drug trafficking
offense, the enhancement applies only “if the firearm . . . facilitated, or had
the potential of facilitating, that offense.” Id. at 693 (internal quotation marks
and citation omitted).
Under Texas law, a person commits the felony offense of aggravated
assault when he “intentionally or knowingly threatens another with
imminent bodily injury” while “us[ing] or exhibit[ing] a deadly weapon.”
TEX. PENAL CODE §§ 22.01(a)(2), 22.02(a)(2). This offense requires the
defendant “to have the specific intent to place any person in fear of imminent
serious bodily injury.” Bryant v. State, 905 S.W.2d 457, 459 (Tex. App.—
Waco 1995) (internal quotation marks and citation omitted). It does not,
however, “require that the victim or anyone else be actually placed in fear of
imminent serious bodily injury.” Id. “It is immaterial to the offense whether
the accused had the capability or the intention to carry out his threat.” Cook
v. State, 940 S.W.2d 344, 349 (Tex. App.—Amarillo 1997). Under Texas law,
“imminent” is defined as meaning “near at hand; mediate rather than
immediate; close rather than touching; impending; on the point of
happening; threatening; menacing; perilous.” Devine v. State, 786 S.W.2d
268, 270 (Tex. Crim. App. 1989) (internal quotation marks omitted) (citing
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No. 21-11238
Black’s Law Dictionary 676 (rev. 5th ed. 1979)). The word
“imminent” is thus construed as requiring “a present and not a future threat
of harm.” Bryant, 905 S.W.2d at 459.
Here, the record reveals that Martinez has a lengthy criminal history
and a violent history of domestic abuse specifically against Kough. According
to the presentence investigation report, Martinez has beaten Kough,
threatened her with a knife, threatened her with a bottle, and threatened to
shoot other individuals who have attempted to intervene and stop Martinez
from harming Kough. As Kough reported to police, she attempted to stop
Martinez from leaving her apartment but was unable, and perhaps unwilling,
to attempt to physically control him and prevent him from leaving. He then
proceeded to retrieve a deadly weapon, i.e., his shotgun, from her vehicle and
hold it while arguing with her and threatening to shoot people. He then took
Kough’s vehicle without her permission and crashed it while being pursued
by the police. Given these facts, Martinez’s lengthy criminal record, and his
history of domestic abuse toward Kough, the district court’s determination
that Martinez committed the felony offense of Texas aggravated assault
against her is plausible in light of the record. See Jeffries, 587 F.3d at 692; see
also Jackson, 453 F.3d at 308 (upholding the district court’s application of
four-level enhancement in § 2K2.1(b)(5) when the defendant fired a pistol
after pushing his girlfriend during a heated argument concluding that
although the defendant did “not provide a reason for firing the gun during
the argument, [] we can discern no reason for doing so other than to threaten
and intimidate”).
Likewise, this factual scenario also supports the district court’s
holding that Martinez committed Texas aggravated assault against the 911-
caller. Not only was the caller close enough to see Martinez brandishing the
shotgun, but she was also close enough to hear him threatening to shoot
people, including the police if they were called. Indeed, the 911-caller, who
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No. 21-11238
was there with her children, clearly felt threatened because she called the
police quickly after observing the escalating situation between Martinez and
Kough. See De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.—Corpus
Christi–Edinburg 1993) (“The mere presence of a deadly weapon, under
proper circumstances, can be enough to instill fear and threaten a person with
bodily injury.”). Given these facts, and Martinez’s history of threatening
behavior toward Kough, others, and anyone that tried to call the police on
him, the district court’s holding that Martinez committed the felony offense
of Texas aggravated assault against the 911-caller is also plausible in light of
the record. See Jeffries, 587 F.3d at 692.(4)(5)
For the aforementioned reasons, we hold that the district court did not
err in applying the four-level § 2K2.1 enhancement to Martinez’s sentence
on grounds that he “used or possessed [a] firearm . . . in connection with”
the felony offense of Texas aggravated assault. See 2K2.1(b)(6)(B); TEX.
PENAL CODE §§ 22.01(a)(2), 22.02(a)(2).
IV. CONCLUSION
Martinez’s sentence is AFFIRMED.
4
Moreover, whether Martinez pointed the shotgun directly at Kough or the 911-
caller while threatening to use the weapon is immaterial as “[t]here is no requirement that
a perpetrator point a weapon directly at a victim in order to be guilty of Texas aggravated
assault.” See Longoria, 713 F. App’x at 327 (citing TEX. PENAL CODE §§ 22.01, 22.02; De
Leon v. State, 865 S.W.2d 139, 142 (Tex. App. 1993)).
5
In light of our conclusion that the record supports the district court’s holding that
Martinez committed Texas aggravated assault against Kough and the 911-caller, we need
not address the issue of whether Martinez committed aggravated assault against the police.
7