United States v. Noe Rodriguez-Martinez

Case: 13-50554 Document: 00512612172 Page: 1 Date Filed: 04/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50554 April 29, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NOE RODRIGUEZ-MARTINEZ, also known as Noe Martinez-Rodriguez, also
known as Noe M. Rodriguez, also known as Noe Martinez, also known as Noe
Rodriguez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:09-CR-745-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Noe Rodriguez-Martinez appeals the 24-month sentence imposed by the
district court upon revocation of probation. He argues that the sentence, which
is below the 10-year statutory maximum term of imprisonment that the district
court could have imposed, see 18 U.S.C. § 3565(b)(1), is plainly unreasonable.
He asserts that a sentence within the policy statement range of 6 to 12 months
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50554 Document: 00512612172 Page: 2 Date Filed: 04/29/2014
No. 13-50554
of imprisonment would have been sufficient punishment given that he spent
most of his life in the United States and assimilated into American culture. He
further argues that if he had “been given the opportunity to freely and fully
exercise his right to allocute (instead of being told to be quiet by the court),” he
would have been better able to explain these mitigating circumstances.
Because he raises these issues for the first time on appeal, our review is for
plain error only. See United States v. Kippers, 685 F.3d 491, 497 (5th Cir.
2012).
The record reflects that the district court gave Rodriguez-Martinez an
opportunity to speak in mitigation of his sentence before imposing sentence.
See FED. R. CRIM. P. 32(i)(4)(A)(ii); United States v. Reyna, 358 F.3d 344, 350
(5th Cir. 2004) (en banc). Although the district court told Rodriguez-Martinez
to “be quiet,” the admonishment came after the district court had already
imposed sentence and after Rodriguez-Martinez had already explained at
length his personal history and circumstances, including his ties to the United
States. Moreover, Rodriguez-Martinez fails to raise any facts in his brief that
were not considered by the district court during the revocation proceedings or
to set forth the facts that would have been brought to light if he had been
permitted to continue to speak after the sentence was imposed. Accordingly,
we find no plain error.
AFFIRMED.
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