United States v. Martinez, Enrique , 216 F. App'x 565 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 February 1, 2007
Decided February 5, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2004
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 CR 226
ENRIQUE MARTINEZ,
Defendant-Appellant. Ronald A. Guzmán,
Judge.
ORDER
Enrique Martinez was charged with conspiring to possess cocaine with intent
to distribute, 18 U.S.C. §§ 846, 841(a)(1), after he accepted delivery of 16 kilograms
of cocaine from Eddie Arauz, a police informant. Martinez entered a blind guilty
plea, and the district court sentenced him to 168 months’ imprisonment and five
years’ supervised release. Martinez filed a notice of appeal, but his appointed
counsel now moves to withdraw because he is unable to discern a nonfrivolous issue
to pursue. See Anders v. California, 386 U.S. 738 (1967). Counsel’s supporting
brief is facially adequate and Martinez has not responded to his attorney’s motion,
see Cir. R. 51(b), so we review only the potential issues that counsel has identified.
See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam). Martinez
does not wish to withdraw his guilty plea, so counsel appropriately avoids any
discussion about the voluntariness of the plea or the adequacy of the colloquy. See
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
No. 06-2004 Page 2
Counsel begins by considering whether Martinez could argue that the
quantity of cocaine for which he was held responsible was incorrectly calculated.
Martinez’s attorney asserted at sentencing that Martinez was responsible for only
80 kilograms rather than the 104 to 128 kilograms attributed to him by the PSR.
Counsel did not articulate the basis for this assertion, but presumably he had in
mind the undisputed information contained in the PSR that Martinez was involved
in five shipments of cocaine, with an estimated “10 to 16 kilograms per trip for the
first four visits and 16 kilograms for the final trip.”
The PSR’s calculation that these five shipments added up to “between 104
and 128 kilograms” is indeed incorrect; based on the government’s estimates, the
drug quantity attributable to Martinez should have been between 56 and 80
kilograms. This error was harmless, however, because—as Martinez’s counsel
observed at sentencing—his base offense level of 36 encompassed a drug quantity
between 50 and 100 kilograms. See United States v. Frith, 461 F.3d 914, 918 (7th
Cir. 2006) (holding that error in calculating relevant conduct that did not affect
defendant’s base offense level was harmless). In any event, Martinez waived the
issue when he told the district court that he had “essentially” no objections to the
PSR, since the drug quantity calculation was merely “an incorrect factual piece
which makes no difference in the end.” Sent. Tr. at 5; see United States v.
Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004) (holding that defendants waived right
to challenge calculation underlying their guidelines offense level by withdrawing
objections at sentencing hearing).
Next, counsel considers whether Martinez could challenge the two-level
increase he received under U.S.S.G. § 3B1.1(c) by arguing that he did not act as an
organizer, leader, manager, or supervisor of criminal activity during the course of
the drug conspiracy with which he was involved. Like the first potential argument,
Martinez waived this argument by stating that he had no objections to the PSR.
See Knox, 287 F.3d at 670. Even if appellate review remained available, it would be
frivolous to challenge the two-level increase because Martinez directed Arauz to
come to Texas when loads were ready for transport, supplied the cocaine, provided a
vehicle with a secret compartment for hiding the drugs, and paid him for his help.
See U.S.S.G. § 3B1.1, cmt. n.4; United States v. Falcon, 347 F.3d 1000, 1004 (7th
Cir. 2003) (upholding the § 3B1.1(c) adjustment where defendant directed
accomplice’s travel, supplied cocaine, and provided vehicle).
Finally, counsel considers whether Martinez could argue that his sentence is
unreasonable in light of the sentencing factors contained in 18 U.S.C. § 3553(a).
Counsel notes that the sentence is presumed reasonable because it falls within the
properly calculated guidelines range. See United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Although the Supreme Court has recently granted a writ of
certiorari to consider whether according a presumption of reasonableness to a
No. 06-2004 Page 3
sentence within the guidelines range is consistent with United States v. Booker, 543
U.S. 220 (2005), see United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir.
May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), the
resolution of that question would not affect our conclusion that challenging
Martinez’s sentence would be frivolous. The district court considered the § 3553(a)
factors and articulated its reasons for the sentence chosen, see United States v.
Dean, 414 F.3d 725, 729 (7th Cir. 2005), noting for instance that Martinez had a job
and had never been in trouble with the law in his 48 years, but he had been
involved in a serious crime—a “major drug distribution scheme”—and the public
needed to be protected from that type of crime. The court then selected the lowest
possible sentence within the guidelines’ range. Martinez did not advance a
compelling justification for a sentence below the guidelines range, and it would be
frivolous for him to argue that the district court unreasonably declined to impose
one.
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.