United States v. Martinez-Hernandez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4431
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PEDRO MARTINEZ-HERNANDEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:07-cr-00287-BR-1)
Submitted: January 27, 2010 Decided: February 11, 2010
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Barbara D. Kocher, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pedro Martinez-Hernandez appeals his seventy-one month
prison sentence for illegally reentering the United States after
having been convicted of an aggravated felony and deported, in
violation of 8 U.S.C. § 1326(a)(2), (b)(2) (2006). On appeal,
Martinez-Hernandez contends that his sentence at the high end of
his advisory guideline range is unreasonable, because it
resulted from application of the sixteen-level enhancement under
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(i) (2007),
and because the district court considered an improper factor in
selecting the sentence. We affirm.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
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Martinez-Hernandez, a citizen of Mexico who illegally
entered the United States, has been deported from the United
States three times. After being deported on September 26, 1998,
he illegally returned and was convicted of possessing narcotic
drugs for sale on September 16, 1999. After being deported on
December 20, 1999, he illegally returned and was convicted on
July 10, 2000, of sale of narcotic drugs. After serving his
prison sentence, he was deported on June 25, 2003, and illegally
returned on November 1, 2003. On June 4, 2007, he was arrested
for interfering with emergency communications in a domestic
dispute. He was subsequently indicted and pled guilty to being
found in the United States after having been convicted of an
aggravated felony on July 10, 2000, and removed on June 25,
2003.
The probation officer determined Martinez-Hernandez’s
base offense level under USSG § 2L1.2(a) was eight; sixteen
levels were added under USSG § 2L1.2(b)(1)(A)(i) because he was
deported after a drug trafficking offense conviction for which
his sentence exceeded thirteen months; and he received a three-
level reduction for acceptance of responsibility. With a total
offense level of twenty-one and criminal history category IV,
his guideline range was fifty-seven to seventy-one months. He
filed an objection to the sixteen-level enhancement based on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny,
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asserting the district court was prohibited from making factual
findings to apply the enhancement. The district court overruled
the objection and adopted the presentence report.
Martinez-Hernandez requested a sentence at the low end
or below his guideline range, arguing that there was less need
for the district court to protect the public in fashioning a
sentence because he would be returned to Mexico; he had tried to
change his life when he returned to the United States the last
time by working and taking care of his family; his children and
fiance were relocating to Mexico and he did not wish to return
to the United States; and deterrence would be accomplished by a
sentence below the guideline range. The Government responded
that based on Martinez-Hernandez’s record, deportation did not
appear to protect the public at all. The Government also noted
he had been a member of a street gang and requested that the
district court impose a sentence within the guideline range.
In explaining its sentence, the district court noted
Martinez-Hernandez had been deported and “turned right around
and came back”; and when he came back, he “violated the law by
selling drugs and things of that nature.” The sentencing judge
further commented that he had sympathy for people who came to
the United States seeking employment, but that people like
Martinez-Hernandez gave the people who came here legitimately a
bad name.
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On appeal, Martinez-Hernandez contends his sentence is
unreasonable because the effect his behavior has on the public
perception of a group of people, i.e., people coming to this
country legitimately, is not one of the 18 U.S.C. § 3553(a)
(2006) factors, and the district court should not have based any
part of his sentence on such a ground. He further contends that
the sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(i)
makes his sentence unreasonable as it was “enacted by the
Sentencing Commission with little deliberation or empirical
justification”; resulted in a sentence that is greater than
necessary to comply with the statutory purposes of punishment;
and his sentence based on the enhancement is not entitled to a
presumption of reasonableness on appeal. Martinez-Hernandez
does not, however, contend that his guideline range was
improperly calculated.
While the district court was free to consider policy
decisions behind the guidelines, including the presence or
absence of empirical data, as part of its consideration of the
§ 3553(a) factors in this case, see Kimbrough v. United States,
552 U.S. 85 (2007); United States v. Mondragon-Santiago, 564
F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009),
Martinez-Hernandez did not make this argument in the district
court and the court did not abuse its discretion by failing to
raise the issue on its own. Moreover, Kimbrough did not affect
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our appellate presumption for sentences within a properly
calculated guideline range. See Mondragon-Santiago, 564 F.3d at
366. We further conclude that the district court did not
consider an improper factor or otherwise abuse its discretion in
sentencing Martinez-Hernandez to the high end of his guideline
range. Martinez-Hernandez does not claim that the district
court failed to consider the § 3553(a) factors, and as noted by
the Government, the court was not limited to consideration of
those factors. See 18 U.S.C. § 3661 (2006). The district
court’s comments indicate its consideration of the nature and
circumstances of Martinez-Hernandez’s offense, his history and
characteristics, and the need for the sentence to promote
respect for the law, afford adequate deterrence to criminal
conduct, and protect the public from further crimes.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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