United States v. Melissa Martinez ( 2020 )

Case: 19-40123 Document: 00515327930 Page: 1 Date Filed: 03/02/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-40123
FILED
March 2, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MELISSA MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CR-453-2
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Melissa Martinez pleaded guilty to possession with intent to distribute a
quantity of less than 50 kilograms, that is, approximately 15.2 kilograms
(34.98 pounds) of marijuana and was sentenced to 14 months of imprisonment
and two years of supervised release. She contends that the district court erred
in applying a two-level enhancement under U.S.S.G. § 3B1.1(c) based on its
finding that she had an aggravating role in the offense. Because she objected
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40123 Document: 00515327930 Page: 2 Date Filed: 03/02/2020
No. 19-40123
to the enhancement in the district court, she preserved the issue for appeal.
See United States v. Fillmore, 889 F.3d 249, 255 (5th Cir. 2018). “We therefore
review the district court’s finding regarding [Martinez’s] role in the offense for
clear error.” Id.The presentence report (PSR) had an adequate factual basis, and the
district court was entitled to rely on it because Martinez did not present any
evidence to rebut it. See United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012). The PSR shows that Martinez recruited her coconspirator David
Monsivais; offered to pay Monsivais between $200 and $350 to smuggle and
distribute the marijuana; picked up Monsivais in her vehicle on the morning
of the offense, which they drove to Mexico; instructed Monsivais on what to say
to the border patrol officers at the port of entry; and asked Monsivais two
weeks before the instant offense to accompany her on a similar trip. Because
the district court’s finding that Martinez had an aggravating role in the offense
is plausible in view of the record as a whole, the district court did not clearly
err in imposing this two-level enhancement. See Fillmore, 889 F.3d at 255;
United States v. Ochoa-Gomez, 777 F.3d 278, 282 (5th Cir. 2015); United States
v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013); United States v. Golden, 17 F.3d
735, 736 (5th Cir. 1994); see also United States v. Garcia, 625 F. App’x 680,
682–83 (5th Cir. 2015) (unpublished); United States v. Sanchez-Gaucin, 595 F.
App’x 344, 346 (5th Cir. 2014) (unpublished).
Accordingly, the judgment of the district court is AFFIRMED.
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