Document Info

DocketNumber: 18-40068

Filed Date: 1/9/2019

Status: Non-Precedential

Modified Date: 1/9/2019

  •      Case: 18-40068      Document: 00514784313         Page: 1    Date Filed: 01/07/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 18-40068                            January 7, 2019
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    SABINO ORLANDO MARTINEZ, also known as Pino,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 1:15-CR-144-3
    Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
    PER CURIAM: *
    Sabino Orlando Martinez pleaded guilty to one count of conspiracy to
    possess with intent to distribute methamphetamine and one count of
    conspiracy to possess with intent to distribute cocaine.               A jury convicted
    Martinez of one count of conspiracy to commit robbery affecting interstate
    commerce, one count of conspiracy to use and carry firearms during and in
    relation to a crime of violence, and one count of conspiracy to use and carry
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 18-40068     Document: 00514784313      Page: 2    Date Filed: 01/07/2019
    No. 18-40068
    firearms during and in relation to a drug trafficking offense. The district court
    sentenced him below the guidelines range to 960 months of imprisonment.
    Martinez argues there was insufficient evidence to support his conviction
    for conspiracy to commit robbery affecting commerce because the Government
    did not introduce evidence showing that the crime affected commerce. He also
    claims that there was insufficient evidence linking him to the robbery at a
    Popeye’s restaurant and establishing a criminal conspiracy.
    Because Martinez did not move for a judgment of acquittal at the close
    of the Government’s case or at the close of all evidence, we review this claim
    for plain error only. See United States v. Delgado, 
    672 F.3d 320
    , 328-31 (5th
    Cir. 2012) (en banc). Plain error requires a showing of (1) error, (2) that is clear
    or obvious, and (3) that affects substantial rights. 
    Id. at 329
     (citation omitted).
    If these three prongs are met, we have discretion to correct the error only if it
    seriously affects the integrity, fairness, or public reputation of judicial
    proceedings. 
    Id.
     (citation omitted).
    Martinez’s arguments are unavailing. Given the significant amount of
    witness testimony connecting Martinez to the robbery of the restaurant and
    establishing that it negatively impacted the restaurant in its interstate
    business transactions, the record was not devoid of evidence of a conspiracy to
    commit robbery affecting interstate commerce. See Delgado, 672 F.3d at 331;
    United States v. Box, 
    50 F.3d 345
    , 349 (5th Cir. 1995).
    In addition, Martinez argues that Shannon Clark’s death was not
    relevant conduct to any of his convictions and, thus, the district court erred in
    applying the U.S.S.G. § 2B3.1(c)(1) cross-reference to U.S.S.G. § 2A1.1. He
    urges that there was no evidence that he shot Clark with the intent to rob her
    or to avoid apprehension in another robbery.
    We review the district court’s application of the Guidelines de novo and
    its factual findings for clear error. United States v. Goncalves, 
    613 F.3d 601
    ,
    2
    Case: 18-40068     Document: 00514784313      Page: 3   Date Filed: 01/07/2019
    No. 18-40068
    604-05 (5th Cir. 2010). Martinez has not shown that the district court clearly
    erred in finding that Clark’s murder was relevant conduct for purposes of the
    cross-reference or in finding that the circumstances of the murder supported
    the application of the cross-reference. See § 1B1.3(a)(1)(A), (B); United States
    v. Harris, 
    702 F.3d 226
    , 230 (5th Cir. 2012).
    Martinez also challenges the seven-level enhancement under U.S.S.G.
    § 2B3.1(b)(2)(A) for discharge of a firearm, the six-level bodily injury
    enhancement under § 2B3.1(b)(3)(C), and the two-level vulnerable victim
    enhancement under U.S.S.G. § 3A1.1(b)(1). Consideration of these claims is
    unnecessary.    Given that the district court did not err in applying the
    § 2B3.1(c)(1) cross-reference and a base offense level of 43 under § 2A1.1, any
    additional enhancements and adjustments would be inapplicable because “[a]n
    offense level of more than 43 is to be treated as an offense level of 43.” U.S.S.G.
    Ch.5, Pt.A, comment. (n.2).
    Finally, Martinez urges that the district court imposed a substantively
    unreasonable sentence because it relied upon an erroneously-calculated
    guidelines range.     Because Martinez did not object to the substantive
    reasonableness of his sentence at the time it was imposed, review is limited to
    plain error. See United States v. Peltier, 
    505 F.3d 389
    , 391 (5th Cir. 2007).
    The record in the instant case demonstrates that the district court made
    an individualized assessment to determine whether a sentence below the
    guidelines range was sufficient but not greater than necessary to achieve the
    goals of 
    18 U.S.C. § 3553
    (a). See § 3553(a). Martinez has not shown any error,
    plain or otherwise, with respect to the substantive reasonableness of his
    sentence. See Peltier, 
    505 F.3d at 391
    .
    AFFIRMED.
    3