United States v. Marcial Martinez ( 2020 )

Case: 20-40090 Document: 00515630136 Page: 1 Date Filed: 11/06/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 6, 2020
No. 20-40090 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Marcial Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-78-4
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Marcial Martinez pleaded guilty to one count of conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine, and the
district court sentenced him to 300 months of imprisonment and a five-year
*
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opinion should not be published and is not precedent except under the limited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: 20-40090 Document: 00515630136 Page: 2 Date Filed: 11/06/2020
No. 20-40090
term of supervised release. On appeal, Martinez only challenges the
calculation of his sentencing range under the Sentencing Guidelines.
For preserved errors, we review the district court’s interpretations of
the Guidelines de novo and the district court’s factual findings for clear error.
United States v. Haines, 803 F.3d 713, 743 (5th Cir. 2015). “A factual finding
is not clearly erroneous if it is plausible in light of the record as a whole.”
United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013) (internal quotation
marks and citation omitted).
First, Martinez argues that the district court erred in applying the
U.S.S.G. § 2D1.1(b)(1) firearm enhancement because there was insufficient
evidence establishing a nexus between the pistol found in his vehicle and the
drug trafficking activity. However, the pistol was in Martinez’s vehicle at the
Dallas location where he paid the agents for transporting the liquid
methamphetamine, and that factual scenario suffices to establish a temporal
and spatial relationship among Martinez, the pistol, and the drug trafficking
activity. See United States v. Salado, 339 F.3d 285, 294 (5th Cir. 2003).
Because the district court’s factual findings were plausible based on the
entire record and, thus, not clearly erroneous, the district court did not err in
applying the two-level enhancement under § 2D1.1(b)(1). See Alaniz, 726
F.3d at 618.
Second, Martinez challenges the calculation of his base offense level
under § 2D1.1(a) because the presentence report fails to establish why a 5%
reduction for diesel present in the liquid methamphetamine was a reasonable
method for calculating the amount of methamphetamine in the seized liquid.
Martinez also claims that there is no evidence that the methamphetamine
could not have easily been separated from the diesel and other substances for
purposes of calculating the quantity of methamphetamine.
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No. 20-40090
Even if we assumed that the reduction value was insufficient, the error
was harmless given that the threshold weight for a base offense level of 38 is
45 kilograms of methamphetamine, nearly 500 kilograms less that the amount
attributed to him by the presentence report, and Martinez offers no evidence
that diesel comprised that amount of the mixture. See § 2D1.1(c)(1); United
States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002). Similarly, Martinez
provides no evidence, outside of conjecture, that the representative sample
was unreliable for purposes of approximating the weight of the liquid
methamphetamine and establishing the purity of the substance. Moreover,
in the absence of rebuttal evidence, the district court was free to extrapolate
the drug quantity from those representative samples. See United States v.
Dinh, 920 F.3d 307, 313 (5th Cir. 2019); United States v. Valdez, 453 F.3d 252,
267 (5th Cir. 2006). Thus, Martinez has not shown that the district court
clearly erred by estimating the drug purity based on the unrebutted facts in
the presentence report. See Dinh, 920 F.3d at 313; Alaniz, 726 F.3d at 618-
19.
Finally, Martinez argues that the district court erred when it declined
to apply a mitigating role adjustment under U.S.S.G. § 3B1.2. Another
member of the drug trafficking organization informed the undercover agents
that “Marcial” was the “money guy” and would arrive at the Dallas location
to pay for the transportation of the methamphetamine, and several hours
later, Martinez arrived and paid the agents over $20,000. This information
indicates that Martinez played an active role in the drug trafficking
organization, at least in regard to financial matters, and fully understood that
he was paying for illegal narcotics. See § 3B1.2, comment. (n.3(C)(iv)).
Thus, the district court did not clearly err in denying a mitigating role
reduction because Martinez failed to show that he was substantially less
culpable than the average participant in the criminal activity. See United
States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016); Alaniz, 726 F.3d at 618.
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No. 20-40090
AFFIRMED.
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