United States v. Martinez

06-5502-cr
United States v. Martinez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2007
(Argued: May 5, 2008 Decided: May 9, 2008)
Docket No. 06-5502-cr
_____________________
UNITED STATES OF AMERICA,
Appellee,
-v.-
DAVID MARTINEZ,
Defendant-Appellant.
_______________________
BEFORE: WINTER and HALL, Circuit Judges, and KRAVITZ, District Judge.*
Appeal from the judgment of the United States District Court for the Southern District of
New York (Preska, Judge) declining to re-sentence Defendant-Appellant after this Court’s
remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Defendant-Appellant
pleaded guilty to one count of possessing a firearm after having been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). At Defendant-Appellant’s sentencing, the district court
applied a four-level enhancement to his base offense level after finding, by a preponderance of
the evidence, that Defendant-Appellant had used or possessed the firearm in connection with
another felony offense. Because we hold that the district court applied the correct standard of
proof to the facts supporting the enhancement, we also hold that the sentence imposed by the
district court was reasonable. Finally, we hold that the doctrine of constitutional avoidance does
not apply to invalidate the sentence imposed in this case. We affirm.
*
The Honorable Mark R. Kravitz, United States District Judge for the District of
Connecticut, sitting by designation.
________________________
DONNA NEWMAN , Law Office of Donna Newman, Esq., New York, New York,
for Defendant-Appellant.
PARVIN DAPHNE MOYNE, Assistant United States Attorney, Southern District of
New York (Cathy Seibel, Deputy United States Attorney, on the brief), for
Michael J, Garcia, United States Attorney, Southern District of New York, New
York, for Appellee.
________________________
PER CURIAM:
David Martinez appeals from the order of the district court declining to re-sentence him
after this Court’s remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On
appeal, Martinez argues that the district court improperly relied on facts determined by a
preponderance of the evidence in applying a four-level enhancement pursuant to former Section
2K2.1(b)(5) of the United States Sentencing Guidelines to Martinez’s base offense level.
Martinez also argues that the doctrine of constitutional avoidance requires this Court to
determine that the district court erred in applying other than a reasonable doubt standard to the
facts relevant to the sentencing enhancement. We disagree, and hold that the district court did
not err in applying a preponderance of the evidence standard to the facts establishing the
enhancement.
I. Background
In May 2002, the Government filed an indictment charging Martinez with one count of
possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). In December 2002, Martinez pleaded guilty to the single count alleged in the
indictment. At his plea hearing, Martinez described his conduct with respect to the offense by
stating, “On January 2 [2002] in the Bronx I was in possession of a weapon and I was– I’m a past
felon and I knew that was against the law.”
Following Martinez’s plea, the Probation Office prepared a Pre-Sentence Investigation
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Report (“PSR”), which calculated Martinez’s base offense level under the United States
Sentencing Guidelines (“USSG” or “Guidelines”) to be 20, pursuant to § 2K2.1(a)(4)(A), and his
adjusted offense level to be 23, after: (1) a four-level increase, pursuant to § 2K2.1(b)(5),1
because Martinez had used the firearm in connection with other felony offenses; (2) a two-level
increase, pursuant to § 3C1.1, because Martinez had obstructed justice during the course of the
investigation and prosecution of the offense; and (3) a three-level decrease, pursuant to § 3E1.1,
because Martinez had timely accepted responsibility for the offense. The Probation Department
determined that Martinez had 13 criminal history points, resulting in a Criminal History Category
of VI, and Guidelines range of 92 to 115 months.
Thereafter, the district court conducted a hearing pursuant to United States v. Fatico, 579
F.2d 707 (2d Cir. 1978), where it heard evidence relating to the enhancements suggested in the
PSR. At a sentencing hearing conducted in April 2004, the district court determined, based on
the evidence offered at the Fatico hearing, that, on the night of the offense alleged in the
indictment, Martinez had taken the weapon in question to an apartment in the Bronx with the
intention of assaulting Sonya Green. The court noted that “[t]here is no dispute that a violent
fight broke out, starting with [Martinez] punching Ms. Green in the face, and that after Ms.
1
The PSR relied on the 2002 version of the Guidelines. Section 2K2.1 has since been
renumbered and, in the 2007 version of the Guidelines, the provision allowing for a 4-level
enhancement based on the defendant’s use of the firearm in connection with other felonies is
contained in § 2K2.1(b)(6). The text of the section requiring the enhancement is the same in
both versions:
If the defendant used or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense, increase by 4 levels. If the resulting
offense level is less than level 18, increase to level 18.
U.S.S.G. § 2K2.1(b)(5) (2002); U.S.S.G. § 2K2.1(b)(6) (2007).
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Green was bleeding and excited and frightened and running about, [Martinez] pointed a gun at
her as she ran away.” The court concluded that Martinez had “possessed and used [the gun] in
connection with reckless endangerment in the first degree.” Further, the court relied on
testimony given at the Fatico hearing that Martinez had gone to Green’s apartment “to collect on
a drug debt,” and concluded that “it is clear and it [has] been established that [Martinez]
possessed his gun in connection with a narcotics conspiracy and narcotics distribution . . . both
felonies under federal law.” Accordingly, the court determined that the 4-level enhancement for
using the firearm in connection with another felony was appropriate.
The district court also concluded that Martinez had obstructed justice during the
investigation and prosecution of the offense by lying to the New York City police detective
investigating the offense. Accordingly, the district court determined that “a total offense level of
23 is appropriate,” and sentenced Martinez to a 115-month term of imprisonment, followed by a
three-year term of supervised release. Martinez appealed and, pursuant to United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005), this Court remanded the case for the district court to
consider whether, in light of United States v. Booker, 543 U.S. 220 (2005), it would resentence
Martinez.
On remand, in support of resentencing, Martinez argued that, inter alia, the Fifth
Amendment required the district court to apply a reasonable doubt standard of proof to the facts
establishing that he had used the firearm in connection with another felony. In November 2006,
the district court issued an endorsement order declining to resentence Martinez.
This appeal followed.
II. Discussion
A. Evidentiary Standard
On appeal, Martinez does not argue that due process requires a district court to apply a
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reasonable doubt standard to facts supporting all sentence enhancements. Rather, Martinez
argues that, because the enhancement applied to his base offense level required the district court
to determine that he had committed a new and separate offense, the Fifth Amendment requires
that the district court apply a reasonable doubt standard to the facts supporting that enhancement.
This Court has not yet considered whether the due process right to proof beyond a
reasonable doubt attaches to facts relevant to a Guidelines sentence when those facts constitute a
separate offense. The single Circuit that has considered the question has answered it in the
negative. See United States v. Grier, 475 F.3d 556, 567-68 (3d Cir. 2007). In Grier, the
defendant, who was subject to the same sentence enhancement at issue here, raised the
evidentiary standard argument that Martinez advances here. In rejecting the argument and
affirming the district court’s application of the preponderance of the evidence standard, the Third
Circuit began by noting that, after Apprendi v. New Jersey, 530 U.S. 466 (2000), a defendant is
entitled to proof beyond a reasonable doubt on any facts constituting elements of a crime, those
“that increase the maximum punishment to which the defendant is exposed under governing
law.” Id. at 562 (citing Apprendi, 530 U.S. at 490). The Third Circuit acknowledged the
constitutional problem created by Apprendi and its application to the Sentencing Guidelines. Id.at 563 (citing United States v. Booker, 543 U.S. 220, 233-35 (2005)). The court observed,
however, that the Supreme Court had “resolved this problem” with its decision in Booker, when
it severed and excised the two statutory provisions that created and enforced the mandatory
application of the Guidelines, thus rendering the Guidelines advisory. Id. at 563-65 (“The only
change is that the final Guidelines range does not bind the district court, but merely serves as one
of a number of factors to be considered in fashioning the ultimate sentence.”).
According to the Third Circuit, “[p]ost-Booker, the punishments chosen by Congress in
the United States Code determine the statutory maximum for a crime,” and, “[n]one of the facts
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relevant to enhancements or departures under the Guidelines can increase the maximum
punishment to which the defendant is exposed.” Id. at 565-66. The Court concluded that, like all
facts relevant to application of the Guidelines, facts that constitute a separate offense do not
implicate the rights to a jury trial and proof beyond a reasonable doubt because, under an
advisory Guidelines system, those facts do not increase the maximum punishment to which a
defendant is exposed. Id. at 567. Rather, the Third Circuit noted, facts that constitute a separate
offense “inform the district court’s discretion without limiting its authority. They therefore do
not constitute ‘elements’ of a ‘crime’ under the rationale of Apprendi and do not implicate the
rights to a jury trial and proof beyond a reasonable doubt.” Id. at 567-68.
Although this Court has not addressed the specific issue presented here, our post-Booker
jurisprudence addressing the standard of evidence applicable to facts relevant to Guidelines
sentences supports the reasoning of the Third Circuit, and compels us to adopt the holding of
Grier. This Court has determined that, “[j]udicial authority to find facts relevant to sentencing
by a preponderance of the evidence survives Booker,” United States v. Garcia, 413 F.3d 201, 220
n.15 (2d Cir. 2005), and that, “with the mandatory use of the Guidelines excised, the traditional
authority of a sentencing judge to find all facts relevant to sentencing will encounter no Sixth
Amendment objection,” Crosby, 397 F.3d at 112. Nothing in this Court’s jurisprudence suggests
any basis for applying a different evidentiary standard to relevant facts merely because they
constitute a separate offense, so long as those facts do not increase the maximum statutory
punishment to which a defendant is exposed.
This reasoning is reinforced by our decision in United States v. Vaughn, 430 F.3d 518,
525-26 (2d Cir. 2005), where this Court rejected the defendants’ argument that, after Booker,
district courts could no longer take acquitted conduct into account in determining defendants’
sentences. In that case, we observed that the defendants’ “argument misse[d] the distinction
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between elements of an offense and facts relevant to sentencing. Elements of an offense must be
tried to a jury, but facts relevant to sentencing may be found by a judge, within the constraints of
the Sixth Amendment.” Vaughn, 430 F.3d at 526. Accordingly, in Vaughn, we concluded that
the district court had not erred in relying on acquitted conduct in determining the defendants’
sentence because that court had “sentenced [defendants] within the statutory range authorized by
the jury verdict and within the Guidelines range determined in accordance with the facts the court
found by a preponderance of the evidence.” Id. at 527.
Here, Martinez argues that the district court’s reliance on his use of the firearm in
connection with a separate offense to enhance his sentence “stripped” him of the presumption of
innocence with respect to that other offense. However, as in Vaughn, Martinez’s argument
“misses the distinction between elements of an offense and facts relevant to sentencing.” The
district court did not sentence Martinez for the separate offense; rather that separate offense was
relevant to the sentence imposed based on Martinez’s violation of § 922(g)(1). Martinez’s
sentence, moreover, was not in excess of the 10-year term provided for in § 924(a)(2) for
violations of § 922(g)(1). Accordingly, Martinez’s argument that the facts relevant to the
enhancement at issue in this case should have been subject to a higher standard of proof lacks
merit. The district court properly applied the preponderance of the evidence standard to the
relevant facts in this case.
B. Constitutional Avoidance
Martinez argues that the doctrine of “Constitutional Avoidance” requires this Court to
direct the district court to apply the reasonable doubt standard to facts relevant to the §
2K2.1(b)(5) enhancement at issue here. The Government argues that the doctrine does not apply
because the question in this case does not involve statutory interpretation. The Supreme Court
has described the doctrine of constitutional avoidance as “a tool for choosing between competing
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plausible interpretations of a statutory text, resting on the reasonable presumption that Congress
did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543
U.S. 371, 380-81 (2005). Under the doctrine, when a court is confronted with two plausible
constructions of a statute, one of which “would raise a multitude of constitutional problems,” that
court must adopt the construction that avoids the constitutional issues. Id. at 380.
In this case, Martinez does not specify the statute that is allegedly subject to multiple
interpretations such that this Court must apply the doctrine of constitutional avoidance. Rather,
his argument can be construed to require this Court to avoid the constitutional problems he
alleges are caused by the district court’s reliance on a preponderance of the evidence by requiring
the application of a reasonable doubt standard. Because resolution of these issues does not
require this Court to interpret any statute, this case does not invite the application of the doctrine
of constitutional avoidance. Further, as discussed above, the district court’s application of the
preponderance of the evidence standard in this case presents no constitutional problems.
Accordingly, the doctrine of constitutional avoidance presents no basis for disturbing the district
court’s judgment in this case.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court insofar as it
applied a preponderance of the evidence standard to the facts relevant to the enhancement under
Guidelines § 2K2.1(b)(5). We dispose of Martinez’s remaining claim in an accompanying
summary order.
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