United States v. Ernesto Martinez , 385 F. App'x 594 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 13, 2010
Decided July 15, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-2943 Appeal from the
United States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Western Division.
v. No. 08 CR 50027-1
ERNESTO A. MARTINEZ, Frederick J. Kapala,
Defendant-Appellant. Judge.
ORDER
Ernesto Martinez and fellow members of the Latin Kings street gang hatched a
kidnapping scheme. The plan was basic enough: They would force the victim from his car
at gunpoint, bind him, shove him into a van, and confine him in a basement until a ransom
was paid. The scheme collapsed, however, when their victim, bruised and bloodied,
escaped from the basement before Martinez and his coconspirators could demand ransom.
Martinez pleaded guilty to conspiracy to kidnap, 18 U.S.C. § 1201(c), and use of a
firearm during a crime of violence, id. § 924(c)(1)(A). The district court sentenced him to
300 months for the kidnapping offense and 84 months for the firearm conviction, the two
No. 09-2943 Page 2
terms to run consecutively. The court also imposed a $500 fine and $200 in special
assessments. The judgment directs Martinez to pay the penalties through the Federal
Bureau of Prisons’ Inmate Financial Responsibility Program. Martinez filed a timely notice
of appeal, and his appointed attorney has moved to withdraw because he believes the
appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Martinez opposes counsel’s
motion. See C IR. R. 51(b).
Martinez has told counsel that he wants his guilty pleas set aside, so counsel first
examines whether Martinez could challenge the voluntariness of his pleas or the adequacy
of the plea colloquy. See FED. R. C RIM. P. 11. Martinez did not move to withdraw his guilty
pleas in the district court, so our review would be for plain error. See United States v. Griffin,
521 F.3d 727, 730 (7th Cir. 2008).
Counsel asserts that there was one omission in the Rule 11 colloquy: The district
court did not advise Martinez “that he could be subject to forfeiture.” But this was not an
omission; Rule 11 requires the district court to inform the defendant about “any applicable
forfeiture,” FED. R. C RIM. P. 11(b)(1)(J), and in this case no forfeiture was contemplated.
Therefore, there is no nonfrivolous basis on which to set aside the guilty plea.
In his Rule 51(b) response, Martinez argues that the district court erred by
increasing his offense level under U.S.S.G. § 2A4.1(b)(1), which calls for a six-point bump if
a demand for ransom “was made.” There was no ransom demand here, but the district
court could still apply the enhancement if it found with reasonable certainty that Martinez
or his coconspirators had specifically planned to make one. U.S.S.G. § 2X1.1(a); United
States v. Holmes, 975 F.2d 275, 281 (6th Cir. 1992); United States v. Depew, 932 F.2d 324, 329
(4th Cir. 1991); see also United States v. Almaguer, 146 F.3d 474, 476 (7th Cir. 1998). The
evidence at sentencing left little doubt that money was the motive behind the plot and that
the kidnapers would have demanded a ransom had their victim not escaped. The evidence
included the testimony of a fellow gang member who heard the subject of ransom
discussed in the presence of Martinez and who later discussed the topic with Martinez
personally, the victim’s testimony that his captors asked for the phone number of a family
member who would pay for his release, and the testimony of a coconspirator (along with
Martinez’s admission in his plea agreement) that Martinez was present when the victim
was asked to supply a phone number for the ransom demand.
Martinez also argues that the district court erred in applying a two-level upward
adjustment for serious bodily injury sustained by the victim. See U.S.S.G. § 2A4.1(b)(2)(B).
But in light of the victim’s unrebutted testimony at sentencing, this argument, too, would
be frivolous. The victim, who was choked, beaten with a gun, and burned with a torch,
suffered extremely painful injuries to his head and face that required hospitalization and
No. 09-2943 Page 3
stitches and left him too dizzy to walk. That fact alone provided good cause for the
adjustment, see id. § 1B1.1 cmt. n.1(L); United States v. Brown, 276 F.3d 930, 931-32 (7th Cir.
2002), but the victim also suffered long-term injuries, including reoccurring headaches and
loss of vision and hearing. Such lasting impairments also fit comfortably inside the
guidelines’ description of “serious bodily injury.” See U.S.S.G. § 1B1.1 cmt. n.1(L).; United
States v. Webster, 500 F.3d 606, 607-08 (7th Cir. 2007); United States v. Torrealba, 339 F.3d 1238,
1246 (11th Cir. 2003); United States v. Bogan, 267 F.3d 614, 624 (7th Cir. 2001).
Counsel also considers whether there is any other basis on which Martinez could
attack his prison sentence. We agree that a reasonableness challenge would be frivolous:
The district court correctly calculated Martinez’s recommended guidelines range for the
kidnapping offense and sentenced him at the bottom of that range. We would presume
reasonable any sentence within the properly calculated guidelines range. Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Furthermore, the court applied the 18 U.S.C. § 3553(a) factors, detailing the monstrous
nature of the crime and Martinez’s serious criminal history before rejecting Martinez’s
arguments for a below-range sentence based on his health condition (diabetes) and his
young age.
The sentencing proceeding, however, was not without flaw. One error overlooked
by appellate counsel is the directive in the judgment that Martinez pay all financial
penalties through the BOP’s Inmate Financial Responsibility Program. That program, as
we recently reiterated in United States v. Boyd, No. 09-1425, 2010 WL 2330395, at *3-4
(7th Cir. June 11, 2010), is voluntary, and it was plain error for the district court to require
Martinez’s participation. See also United States v. Munoz, Nos. 09-1118 & 09-2245, 2010 WL
2696528, at *7 (7th Cir. July 9, 2010). We note that it is unlikely, given the modest sum of
money at issue, that the error affected the determination of what was otherwise a
reasonable sentence. See Boyd, 2010 WL 2330395, at *4. Therefore, we correct the judgment
sua sponte to clarify that participation in the IFRP is voluntary. See Munoz, 2010 WL
2696528, at *7; Boyd, 2010 WL 2330395, at *4.
Counsel’s motion to withdraw is GRANTED. The judgment is MODIFIED in
accordance with this order and the appeal is DISMISSED.