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 2006-07

United States v. Jose Ortiz-Martinez ( 2006 )


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  •                     United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 05-3105/3107
___________
United States of America,              *
*
Appellee,                  *
* Appeals from the United States
v.                               * District Court for the
* Northern District of Iowa.
Jose Ortiz-Martinez,                   *
*     [UNPUBLISHED]
Appellant.                 *
___________
Submitted: July 7, 2006
Filed: July 13, 2006
___________
Before COLLOTON, BEAM, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Jose Ortiz-Martinez pleaded guilty to conspiring to distribute 500 grams or
more of methamphetamine mixture, in violation of 21 U.S.C. § 846, and possessing
with intent to distribute 50 grams or more of methamphetamine mixture, in violation
of 21 U.S.C. § 841(a)(1). The district court1 sentenced him to concurrent 168-month
and 120-month prison terms and concurrent 10-year and 8-year terms of supervised
release. The district court also revoked his supervised release for a prior federal
conviction and sentenced him to 12 months in prison, making the revocation sentence
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
consecutive to the sentence for the new offenses. On appeal, Ortiz-Martinez’s counsel
has filed a brief and moved to withdraw, and Ortiz-Martinez has filed a pro se
supplemental brief.
Counsel argues that a remand for resentencing is required because it is unclear
whether the district court meant to make the revocation sentence consecutive to or
concurrent with the sentence on the new charges. We conclude from the record as a
whole that the district court clearly intended the revocation sentence to be consecutive.
See United States v. Tramp,
    30 F.3d 1035
    , 1037 (8th Cir. 1994).
We also reject each of Ortiz-Martinez’s three pro se arguments. First, the
district court properly applied the remedial portion of United States v. Booker,
    543 U.S. 220 
    (2005), at sentencing. See United States v. Salter,
    418 F.3d 860
    , 862 (8th
Cir. 2005), cert. denied,
    126 S. Ct. 1399 
    (2006). Second, Ortiz-Martinez was not
entitled to a preliminary hearing because he was being held on an indictment. See
Fed. R. Crim. P. 5.1(a)(2); United States v. Rose,
    541 F.2d 750
    , 753 n.2 (8th Cir.
1976), cert. denied,
    430 U.S. 908 
    (1977). Third, Ortiz-Martinez cannot challenge the
validity of his guilty plea for the first time on appeal, see United States v. Murphy,
    899 F.2d 714
    , 716 (8th Cir. 1990), and if he wishes to raise a claim of ineffective
assistance of counsel, he must do so in a 28 U.S.C. § 2255 motion, see United States
v. Cain,
    134 F.3d 1345
    , 1352 (8th Cir. 1998).
Accordingly, we affirm the judgment of the district court, and we grant
counsel’s motion to withdraw.
______________________________
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