United States v. Josue Martinez

Case: 18-11274 Document: 00515089492 Page: 1 Date Filed: 08/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11274 FILED
Summary Calendar August 23, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JOSUE EMMANUEL MARTINEZ,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:17-CR-545-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
In 2018, Jose Martinez pleaded guilty of being a felon in possession of a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
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No. 18-11274
firearm (Count One), possession with intent to distribute a controlled sub-
stance (Count Two), and possession of a firearm in furtherance of a drug traf-
ficking crime (Count Three). At the time of his arrest in 2017, Martinez was
on supervised release for a 2012 conviction of being a felon in possession of a
firearm.
The district court held the sentencing hearing for the 2018 offenses on
the same day as the revocation hearing. The court sentenced Martinez to
84 months on Count One and Count Two, to run concurrently, and 60 months
on Count Three, to run consecutively to Count One and Count Two, for a total
of 144 months. The court ordered the sentence to run concurrently with any
sentences imposed in state court and consecutively to the revocation sentence.
Martinez subsequently pleaded true to violating the conditions of supervised
release, and the court sentenced him to 15 months to run consecutively to the
144-month sentence.
For the first time on appeal, Martinez contends that the court plainly
erred in ordering his 144-month sentence to run consecutively to a pending
revocation sentence. He relies on United States v. Estrada-Martinez,
740 F. App’x 85 (5th Cir. 2018), United States v. Quintana-Gomez, 521 F.3d
495 (5th Cir. 2008), and United States v. Nava, 762 F.3d 451 (5th Cir. 2014).
We review Martinez’s argument for plain error only. To show plain error,
he must show a forfeited error that is clear or obvious and that affects his sub-
stantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, this court has the discretion to correct the error but
should do so only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.This case is distinguishable from Estrada-Martinez, Quintana-Gomez,
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No. 18-11274
and Nava because it involves two sentences imposed by the same judge on the
same day. Even assuming, however, that the district court erred, Martinez
cannot show that the error affected his substantial rights because immediately
after the court imposed the 144-month sentence, it sentenced Martinez to
15 months on the revocation offense, and it ordered the revocation to run con-
secutively to the already imposed sentence. See United States v. Baeza-Lozano,
505 F. App’x 373, 375 (5th Cir. 2013). Accordingly, Martinez cannot make the
required showing under the plain-error standard of review. See Puckett,
556 U.S. at 135.
AFFIRMED.
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