United States v. Martinez, Oziel ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4147
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OZIEL MARTINEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 937-1—James B. Moran, Judge.
____________
ARGUED NOVEMBER 9, 2007—DECIDED MARCH 27, 2008
____________
Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. After coordinating several ship-
ments of cocaine and marijuana from Texas to Chicago,
Illinois, Oziel Martinez was arrested and charged with
one count of conspiracy to possess with intent to distrib-
ute cocaine and marijuana, 21 U.S.C. §§ 846, 841(a)(1),
and one count of possession with intent to distribute
cocaine, id. § 841(a)(1). He pleaded guilty to both charges,
and the district court sentenced him to a total of 210
months’ imprisonment. On appeal Martinez argues that
the sentencing court erred in finding that he managed or
supervised the conspiracy, see U.S.S.G. § 3B1.1(c), and
2 No. 06-4147
also failed to address his arguments for a lower prison
sentence. We affirm the judgment.
Martinez worked for a drug-trafficking organization
centered in Texas. In mid-2004 he recruited codefendant
Andres Macias to accept deliveries at a Chicago ware-
house and unload the drugs from hidden compartments
in semi-trailers. In September 2004 Martinez coordinated
the first two deliveries: 90 kilograms of cocaine and 767
kilograms of marijuana. Martinez telephoned from Texas
and instructed Macias to prepare the warehouse and buy
a prepaid cell phone that Martinez could identify as the
recipient’s number on the bill of lading for the trailer
containing the marijuana. He also told Macias to go to
Midway Airport and pick up his brother, codefendant
Adan Martinez, who was flying in from Texas to oversee
the unloading of the two shipments. Martinez then hired
at least one of the drivers for the two loads and super-
vised the loading of both shipments. The cocaine ship-
ment arrived safely in Chicago and was unloaded at the
warehouse by Macias, Adan Martinez, and codefendant
Santos Flores, whom Macias recruited. The marijuana
did not make it to Chicago, however, because authorities
stopped the truck in downstate Illinois. The police left a
voice mail at the number on the bill of lading, prompting
Macias to alert Martinez that the shipment had been
intercepted. Martinez then instructed Macias to take his
brother to the bus station for the return trip to Texas.
In October 2004 Martinez coordinated another ship-
ment of cocaine—this time, 107 kilograms—destined for
Macias’s warehouse. Unbeknownst to Martinez or his
codefendants, the Drug Enforcement Administration
had discovered the hidden compartment in the trailer
used for this shipment and installed a tracking device.
No. 06-4147 3
After the loaded truck had left a warehouse in Texas,
agents stopped it and found the cocaine. The driver (the
same one who delivered the previous cocaine shipment)
agreed to cooperate and told the agents that he was
transporting the drugs for Martinez. The agents replaced
the cocaine with 100 kilograms of counterfeit cocaine,
and the driver continued on to Chicago. Meanwhile,
Martinez again had instructed Macias to prepare the
warehouse for the delivery and told him to meet the
plane when he flew into Chicago to oversee the unloading.
When Martinez, Macias, and Flores began unloading
the bogus cocaine from the hidden compartment, DEA
agents arrested them.
Martinez entered blind guilty pleas in June 2006. The
probation officer who prepared the presentence investiga-
tion report set the base offense level at 38 based on the
amount of cocaine and marijuana. See U.S.S.G. § 2D1.1
(2005). The probation officer then added three levels for
managing or supervising a conspiracy involving five or
more people, see id. § 3B1.1(b) (2005), and subtracted
three levels for acceptance of responsibility, see id. § 3E1.1
(2005). The leadership adjustment would make Martinez
ineligible for a “safety valve” reduction. See 18 U.S.C.
§ 3553(f); U.S.S.G. §§ 5C1.2(a)(4), 2D1.1(b)(7) (2005). The
resulting offense level of 38 coupled with Martinez’s lack
of criminal history yielded a guidelines imprisonment
range of 235 to 293 months.
At sentencing Martinez objected to the recommended
leadership adjustment. He argued that he was not a
manager or supervisor and instead was a “low-level
independent contractor” without authority over his
codefendants. Therefore, he argued, he should not re-
ceive a three-level upward adjustment under § 3B1.1(b)
4 No. 06-4147
and should be eligible for the safety valve. Martinez also
argued that the factors set out in 18 U.S.C. § 3553(a)
warranted a sentence below the guidelines range—down
to the statutory minimum of 10 years if he was not eligible
for a lower term under the safety valve. He principally
argued that a lower sentence was warranted because of
the harshness of being confined in pretrial detention for
almost two years without—by his account—treatment for
a cataract and an ulcer. (During his detention Martinez
had complained to the district court that he needed
cataract surgery and was told by the court that the mar-
shals service would arrange for the elective procedure if
Martinez paid for it. Martinez said nothing to the court
about having an ulcer.) He also argued that a lower
sentence was warranted because he was a 39-year-old
father without any criminal history, see 18 U.S.C.
§ 3553(a)(1); he would be near 50 at the end of the statu-
tory minimum and, according to research, at less risk of
recidivism, see id. § 3553(a)(2)(C); and he could benefit
society by being close to his wife and children, see id.
§ 3553(a)(5)(A). Finally, he pointed out that two of his
codefendants would likely get lower sentences even
though at least one of them had supervised another
participant. See id. § 3553(a)(6).
The district court found that Martinez was a manager
or supervisor of the conspiracy. The court reasoned,
however, that Martinez should receive an increase of
just two levels, see U.S.S.G. § 3B1.1(c) (2005), because his
role involved supervising the delivery logistics, which,
the court thought, involved only two other people. That
change from the presentence report lowered the total
offense level to 37 and the guidelines range to 210 to 262
months. In selecting a term at the low end but not below
No. 06-4147 5
the range, the court singled out the seriousness of the
crime and noted that Martinez would be able to have
cataract surgery while imprisoned.
On appeal Martinez first argues that the district court
erred in finding that he was a manager or supervisor. This
finding, he contends, led to an erroneous two-level in-
crease under § 3B1.1(c) and made him ineligible for the
safety valve.1 We review the court’s finding for clear
error. See United States v. Johnson, 489 F.3d 794, 796 (7th Cir.
2007); United States v. Blaylock, 413 F.3d 616, 618 (7th Cir.
2005).
The district court did not commit error. Martinez co-
ordinated three substantial shipments of drugs. He hired
at least one of the two drivers, he supervised the loading
of all three trailers, he recruited Macias to recover the
drugs from the hidden compartments when the trucks
arrived in Chicago, and he commanded Macias to attend
to details like preparing the warehouse for deliveries,
buying a cell phone, and picking up Martinez and his
brother from the airport. Orchestrating or coordinating
activities performed by others makes a particular defen-
dant a manager or supervisor. See United States v. Skoczen,
1
Martinez additionally contends that, in light of Cunningham v.
California, 127 S. Ct. 856 (2007), the sentencing court was
required to submit the question of his role in the offense to a
jury to be decided by proof beyond a reasonable doubt. We
have rejected this reading of Cunningham. That decision does
not affect the remedial majority’s holding in United States v.
Booker, 543 U.S. 220 (2005), that guidelines issues are to be
decided by the sentencing court under a preponderance stan-
dard. United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007);
see also United States v. Savage, 505 F.3d 754, 764 (7th Cir. 2007).
6 No. 06-4147
405 F.3d 537, 550 (7th Cir. 2005); United States v. Carrera,
259 F.3d 818, 827 (7th Cir. 2001). Martinez’s activities
easily place him in this category, and his assertion that he
was just a “middleman” between the drug supplier and
Macias is without merit. Cf. United States v. Vargas, 16
F.3d 155, 160 (7th Cir. 1994) (holding that arranging
logistics of drug deliveries in addition to “supplying
drugs and negotiating the terms of their sale” may
justify finding that defendant was a supervisor or man-
ager). Indeed, Martinez received a break when the dis-
trict court increased his offense level by just two instead
of three levels; a defendant who acts as a manager or
supervisor in a criminal activity involving at least four
other participants should receive a three-level increase
even if he managed or supervised just one of the partici-
pants. See United States v. Gallardo, 497 F.3d 727, 739 (7th
Cir. 2007); Blaylock, 413 F.3d at 619-21.
Martinez also contends that the district court failed to
consider his arguments for a lower sentence. Most signifi-
cantly, he says, the court refused to address his assertion
that the lack of treatment for his cataract while he was
in pretrial detention warranted a lower sentence. But in
fact the sentencing court acknowledged and rejected this
contention when it noted that Martinez could have
surgery shortly after he arrived in his designated prison
to serve his sentence. Moreover, none of the § 3553(a)
factors make pretrial detention or the conditions of that
detention a relevant consideration, see United States v.
Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007), and
even if unusually harsh conditions could warrant a
lower sentence, the conditions Martinez describes are not
in that category.
Apart from the conditions of his pretrial confinement,
Martinez does not point to any other factor that, in his
No. 06-4147 7
view, should have been addressed by the sentencing
court but was not. Instead, Martinez simply declares that
the court did not address any of the § 3553(a) factors. We
reject this view of the record. All the district court was
required to do was consider the factors listed in § 3553(a)
and address explicitly any substantial arguments Martinez
made. See United States v. Acosta, 474 F.3d 999, 1003
(7th Cir. 2007); United States v. Cunningham, 429 F.3d 673,
678 (7th Cir. 2005). “[S]tock arguments” like those Martinez
made about his family situation and lack of criminal
history are precisely the types of routine contentions “that
a sentencing court is certainly free to reject without
discussion.” United States v. Tahzib, 513 F.3d 692, 695 (7th
Cir. 2008). The district court noted that Martinez was part
of an organized operation that trafficked in substantial
amounts of drugs, and that he was not “a mule hired for
a one-shot transaction.” That is a sufficient explanation
for the sentence. See United States v. Laufle, 433 F.3d 981,
987 (7th Cir. 2006); United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005); United States v. George, 403 F.3d 470, 472-73
(7th Cir. 2005). The court was not required to say more.
For the foregoing reasons, we AFFIRM the judgment of
the district court.
USCA-02-C-0072—3-27-08