United States v. Victoria Martinez ( 2020 )

Case: 19-41048 Document: 00515584688 Page: 1 Date Filed: 09/30/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2020
No. 19-41048
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Victoria Martinez, also known as Tori Townzen,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-1336-2
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Victoria Martinez pleaded guilty to conspiracy to possess, with intent
to distribute, a synthetic cannabinoid mixture, in violation of 21 U.S.C.
§§ 841, 846, and possession of a firearm in furtherance of a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Following a contested
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-41048 Document: 00515584688 Page: 2 Date Filed: 09/30/2020
No. 19-41048
sentencing hearing, the court sentenced Martinez, inter alia, to 220-months’
imprisonment, a term below the advisory Sentencing Guidelines range.
Martinez challenges the court’s application of sentencing enhancements
under Guidelines §§ 2D1.1(b)(7),(12) for distributing a controlled substance
through mass-marketing by means of an interactive computer service and for
maintaining a premises for the purpose of manufacturing or distributing a
controlled substance.
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, 46, 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).
A district court’s determinations that the mass-marketing and
maintaining-a-drug-premises enhancements apply are factual findings
reviewed for clear error. United States v. Guzman-Reyes, 853 F.3d 260, 263
(5th Cir. 2017) (citation omitted) (Guideline § 2D1.1(b)(12) for maintaining
premises); see United States v. Usman, 460 F. App’x 414, 418 (5th Cir. 2012)
(“We review the district court’s factual findings with regard to the
[Guideline § 2B1.1(b)(2)] mass-marketing enhancement for clear error
. . . .”) (citing United States v. Mauskar, 557 F.3d 219, 232 (5th Cir. 2009)).
“A factual finding is not clearly erroneous so long as it is plausible in light of
the record as a whole.” Mauskar, 557 F.3d at 232 (internal quotation marks
and citations omitted).
2
Case: 19-41048 Document: 00515584688 Page: 3 Date Filed: 09/30/2020
No. 19-41048
When making factual findings for sentencing purposes, a district court
may consider any relevant information that has “sufficient indicia of
reliability to support its probable accuracy”. U.S.S.G. § 6A1.3(a). While
Martinez arguably failed to preserve some of the issues she raises on appeal,
we need not determine whether plain error review applies, because, assuming
arguendo they were preserved, her claims still fail. See United States v.
Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016).
The mass-marketing enhancement applies where “defendant, or a
person for whose conduct the defendant is accountable under [Guideline]
§ 1B1.3 (Relevant Conduct), distributed a controlled substance through
mass-marketing by means of an interactive computer service”. U.S.S.G.
§ 2D1.1(b)(7). Where there is jointly undertaken criminal activity, relevant
conduct includes:
all acts and omissions of others that were—
(i) within the scope of jointly undertaken
criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with
that criminal activity.
U.S.S.G. § 1B1.3(a)(1)(B).
Through the presentence investigation report and sentencing-hearing
testimony, the Government presented evidence that Martinez had 3,100
friends on Facebook, posted on Facebook that she had “bags” of synthetic
cannabinoid available, and that one of Martinez’ co-conspirators advertised
and sold synthetic cannabinoids through various Facebook groups dedicated
to drug sales. Martinez failed to rebut the evidence as to her own conduct
and the evidence showing that her co-conspirator’s acts were relevant
conduct under Guideline § 1B1.3. See United States v. Parker, 133 F.3d 322,
3
Case: 19-41048 Document: 00515584688 Page: 4 Date Filed: 09/30/2020
No. 19-41048
329 (5th Cir. 1998) (“Mere objections do not suffice as competent rebuttal
evidence.”) (internal citation omitted). The district court did not, therefore,
commit clear error in applying the mass-marketing enhancement. See
Mauskar, 557 F.3d at 232–33.
Guideline § 2D1.1(b)(12)’s enhancement applies if “defendant
maintained a premises for the purpose of manufacturing or distributing a
controlled substance”. U.S.S.G. § 2D1.1(b)(12); see also Guzman-Reyes, 853
at 263–64 (5th Cir. 2017). Martinez failed to rebut evidence showing she
rented and maintained a locked room in another co-conspirator’s air-
conditioning business and used it to manufacture synthetic cannabinoids.
Under these facts, the district court’s application of the § 2D1.1(b)(12)
enhancement was not clearly erroneous. See Guzman-Reyes, 853 F.3d at 263–
65.
AFFIRMED.
4