United States v. Martinez ( 2023 )

Case: 21-20388 Document: 00516762444 Page: 1 Date Filed: 05/24/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 21-20388 May 24, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Jose Luis Martinez, Jr.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-519-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam:*
Jose Luis Martinez, Jr., pleaded guilty to conspiracy to possess with
intent to distribute five kilograms or more of a mixture or substance
containing a detectable amount of heroin and possession with intent to
distribute five kilograms or more of a mixture or substance containing a
detectable amount of heroin. The presentence report (PSR) calculated a total
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-20388 Document: 00516762444 Page: 2 Date Filed: 05/24/2023
No. 21-20388
offense level of 29 and assigned a criminal history category of II based on a
2010 federal conviction for possession with intent to distribute marijuana,
which received three criminal history points. The guidelines imprisonment
range was 120 to 121 months due to the statutory minimum 10-year sentence.
Martinez objected and argued that under 18 U.S.C. § 3553(f)(1), as
amended by the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat.
5194, 5221 (2018), his prior three-point offense did not foreclose a sentence
below the statutory minimum. Martinez argued that the statutory safety-
valve covered defendants who did not meet all the disqualifying criteria listed
in § 3553(f)(1)(A)-(C). At sentencing, the district court agreed with
Martinez’s interpretation of the statute and concluded that statutory safety-
valve relief was not foreclosed because of the prior three-point offense. The
district court sentenced Martinez to 78 months of imprisonment and five
years of supervised release on each count of conviction, with the sentences
to run concurrently. The Government appealed.
During the pendency of this appeal, United States v. Palomares, 52
F.4th 640 (5th Cir. 2022), petition for cert. filed (U.S. Dec. 21, 2022) (No. 22-
6391), was decided. Martinez concedes that Palomares rejected his
interpretation of § 3553(f)(1) and that the district court’s application of the
safety-valve provisions was error. We are bound by panel precedent unless
and until it is altered by an en banc decision of this court or a decision of the
Supreme Court. United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010);
Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).
Accordingly, Martinez’s sentence is VACATED, and the matter is
REMANDED to the district court for resentencing in accordance with
Palomares.
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