United States v. Jace Martin , 713 F. App'x 325 ( 2018 )

Case: 17-10346 Document: 00514357800 Page: 1 Date Filed: 02/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10346 FILED
Summary Calendar February 22, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JACE ROYE MARTIN,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CR-44-1
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Jace Roye Martin appeals his guilty-plea conviction and sentence for
being a convicted felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He challenges his conviction on three
bases; his sentence, on two.
Martin asserts the statute of conviction, 18 U.S.C. § 922(g), is
unconstitutional under the Commerce Clause in view of National Federation
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 17-10346
of Independent Business v. Sebelius, 567 U.S. 519, 530–35 (2012). He correctly
concedes this issue is foreclosed by our precedent, United States v. Alcantar,
733 F.3d 143, 146 (5th Cir. 2013) (holding National Federation did not address
the constitutionality of 18 U.S.C. § 922(g)(1) or overrule our precedent holding
statutes such as 18 U.S.C. § 922(g)(1) constitutional), and presents the issue
only to preserve it for further review. The same applies to his claim the
indictment failed to allege he knew the firearm had traveled in interstate
commerce. United States v. Rose, 587 F.3d 695 (5th Cir. 2009).
For the first of his two challenges to his sentence, Martin contends his
within Sentencing Guidelines sentence of 87 months’ imprisonment is
substantively unreasonable because the court did not consider his combat duty
in Iraq, his potential Post-Traumatic Stress Disorder (PTSD), and police
officers’ harassment of him and his family. Martin did not, however, object in
district court to the claimed unreasonableness of his sentence.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
Because Martin did not raise this issue in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). (Martin asserts the standard of review should not be plain error,
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presenting this point to preserve it for further review.) Under the plain-error
standard, Martin must show a forfeited plain (clear or obvious) error that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the reversible plain
error, but should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id. There was no clear or obvious
error.
The court considered the presentence investigation report, which
included information concerning Martin’s military service and potential PTSD,
and Martin’s objections to it, and also considered: Martin’s request that the
court consider his military service in Iraq, his potential PTSD, and harassment
of his family by police officers; the testimony and contentions presented by both
parties at the sentencing hearing; and the Guidelines.
The court was not required to provide specific reasons for its rejecting
Martin’s bases for a lower sentence. United States v. Sanchez, 667 F.3d 555,
567–68 (5th Cir. 2012). It properly calculated Martin’s advisory Guidelines
sentencing range and imposed a sentence of 87 months’ imprisonment at the
top of the range. And, the within-Guidelines sentence is presumed reasonable.
Cisneros-Gutierrez, 517 F.3d at 766. Martin’s assertion the sentence is
unreasonable reflects his disagreement with the court’s weighing of the 18
U.S.C. § 3553(a) sentencing factors and does not suffice to rebut that
presumption of reasonableness. United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010) (citing United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008)).
For his other challenge to his sentence, Martin claims his prior Texas
aggravated-assault conviction does not qualify as a crime of violence for
purposes of Guideline § 2K2.1(a)(3). As Martin concedes, his claim is
foreclosed by our precedent; he raises the issue only to preserve it for further
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review. United States v. Guillen-Alvarez, 489 F.3d 197, 200–01 (5th Cir. 2007)
(holding Texas aggravated-assault conviction under Texas Penal Code Ann.
§ 22.02 is crime of violence under Guideline § 2L1.2); see also United States v.
Shepherd, 848 F.3d 425, 427–28 (5th Cir. 2017) (holding Texas aggravated-
assault conviction is crime of violence under Guidelines §§ 2K2.1(a)(2) and
4B1.2).
AFFIRMED.
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