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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                    No. 16-50643
                                                                              Fifth Circuit

                                                                            FILED
                                                                    September 26, 2017

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
             Plaintiff - Appellee

v.

RICHARD MARTINEZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      In this appeal, Richard Martinez challenges both his conviction and his
sentence. Martinez asserts that the district court reversibly erred at trial by
denying his motion to reopen the evidence to permit him to testify. With
respect to sentencing, Martinez asserts that the district court attributed an
erroneous quantity of methamphetamine to him when calculating his base
offense level. Further, he contends the district court failed to adequately
explain the basis for his sentence. We AFFIRM.
                               BACKGROUND
      Martinez was arrested on December 7, 2015, after a traffic stop in
Austin, Texas. Officers stopped Martinez for an unsafe lane change, and they
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soon discovered liquid methamphetamine hidden in the fuel tank of Martinez’s
truck.
                          Trial and denial of motion to reopen
         A federal grand jury returned a two-count indictment against Martinez.
The indictment charged Martinez with (1) conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine (21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846) and (2) possession with intent to distribute 500 grams or
more of methamphetamine (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)).
         Martinez entered a plea of not guilty, and the matter proceeded to a jury
trial. The Government rested in the morning of the second day of trial, at which
point Martinez unsuccessfully moved for acquittal pursuant to Fed. R. Cr. P.
29. Martinez then rested, and both the Government and defense closed their
cases.
         The court informed the jury that it would not hear any more evidence,
and placed the jury into recess from 10:10 a.m. until 1:30 p.m. Outside the
presence of the jury, counsel briefly discussed the jury charges. Around 10:15
a.m., the court placed itself in recess. When the court returned to the bench at
11:30 a.m., defense counsel immediately informed the court that Martinez
wished to reopen the evidence and testify.
         The court denied Martinez’s oral motion to reopen. From start to finish,
the colloquy between the court and counsel regarding the motion lasted only
about ninety seconds. 1



         1   The brief exchange unfolded as follows:
                DEFENSE: My client had a discussion with me during the interlude, and has
         asked me to ask you to let him testify, but we would have to request to reopen. And I
         told him that was a matter within your discretion. My advice to him is my advice to
         him, but that’s what his decision is at this point. I did ask him -- just for the record, I
         did ask him about that in great detail before we closed.


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      The jury ultimately convicted Martinez of possession with intent to
distribute and acquitted him of conspiracy to distribute methamphetamine.
                                     Sentencing
      Relying upon a law enforcement laboratory report concerning the
substances recovered from Martinez’s fuel tank, the PSR attributed 22.302
kilograms of methamphetamine (actual) and 879.317 grams of “ice”
methamphetamine to Martinez. Under the 2015 U.S. Sentencing Guidelines
Manual, this produced a base offense level of 38. No adjustments applied.
Combined with Martinez’s criminal history category of I, the PSR computed a
guideline imprisonment range of 235 months to 293 months.
      Martinez submitted a lengthy series of pro se objections to the PSR. The
most pertinent, read broadly, contends that his truck’s fuel tank could not hold
the amount of liquid methamphetamine attributed to him. Specifically,
Martinez asserted that, though he did not know “how to weigh or measure” the



             THE COURT: I understand. I gave you plenty of time to do that.
             DEFENSE: I know. I just wanted to put that on the record I did do that. Okay.
      So he did -- we did have that discussion prior to closing our case.
              THE COURT: Can you state, for the record, that you are not advising him to
      testify?
             DEFENSE: Well, I’ll state, for the record, that I advised him of why it would
      not be a good idea to testify in full detail, but that it was his decision.
             THE COURT: What says the government?
            GOVERNMENT: You know, at this point, I’ll object. I mean, this man’s
      yanking the system around.
             THE COURT: Well, I sustain. I’m not going to reopen the case. We’ve already
      told the jury that they’re through. You’ve got the charges in your hand. And --
             GOVERNMENT: Just for the record, my other reasons are, I had three
      rebuttal witnesses waiting in the hallway just in case he did that, and I’ve released
      them all and they’re all back on duty somewhere in the county.
             THE COURT: Well, no question that in my mind, it would not be beneficial
      for Mr. Martinez to testify.


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drugs, there was “no way [he] had all that” methamphetamine because “that
[amount] does not fit [in] a gas tank.”
      Defense counsel also moved for a downward variance “based on a policy
disagreement with the present methamphetamine guideline.” Counsel asked
the court to consider the statutory minimum sentence of ten years.
      At the sentencing hearing, the district court overruled Martinez’s
objections and imposed a 235-month prison sentence, which represented the
bottom of the guidelines range. Near the end of the hearing, defense counsel
stated that Martinez wished to appeal in part based on a claim of ineffective
assistance of counsel. In connection with that possibility, the court indicated
that it would permit defense counsel’s withdrawal upon filing of the
appropriate paperwork, and would then appoint new counsel if Martinez did
not hire a lawyer. Defense counsel’s last comment at the hearing was this
remark: “He [i.e., Martinez’s presumptive replacement counsel] would
probably object to the reasonableness of the sentence. I will do that on your
behalf.”
                         STANDARDS OF REVIEW
                               Motion to reopen
      “Generally, the reopening of a criminal case after the close of evidence
lies within the sound discretion of the [district] court.” United States v. Walker,
772 F.2d 1172, 1177 (5th Cir. 1985) (quoting United States v. Ramirez, 608
F.2d 1261, 1267 (9th Cir. 1979)). “The district court’s decision whether or not
to reopen the evidence will be overturned on appeal only upon a showing that
it abused its discretion.” Id. (citing United States v. Thetford, 676 F.2d 170, 182
(5th Cir. 1982), cert. denied, 459 U.S. 1148 (1983)).
      “In Thetford, we outlined factors which the district court ‘must’ consider
in exercising its discretion,” which include “the timeliness of the motion, the
character of the testimony, and the effect of the granting of the motion.” Id.

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(quoting Thetford, 676 F.2d at 182). “The party moving to reopen should
provide a reasonable explanation for failure to present the evidence in its case-
in-chief.” Id. (quoting Thetford, 676 F.2d at 182). “The evidence proffered
should be relevant, admissible, technically adequate, and helpful to the jury in
ascertaining the guilt or innocence of the accused.” Id. (quoting Thetford, 676
F.2d at 182). “The belated receipt of such testimony should not imbue the
evidence with distorted importance, prejudice the opposing party’s case, or
preclude an adversary from having an adequate opportunity to meet the
additional evidence offered.” Id. (quoting Thetford, 676 F.2d at 182 (quoting
United States v. Larson, 596 F.2d 759, 778 (8th Cir. 1979)).
                 Procedural reasonableness of sentence
      “This court reviews ‘the district court’s interpretation or application of
the sentencing guidelines de novo, and its factual findings for clear error.’”
United States v. Groce, 784 F.3d 291, 294 (5th Cir. 2015) (quoting United States
v. Scott, 654 F.3d 552, 555 (5th Cir. 2011)). “We do not afford deference to the
district court in the review of mathematical error in a sentencing guideline
calculation.” United States v. Severin, 221 F. App’x 299, 301 (5th Cir. 2006)
(unpublished) (citing Koon v. United States, 518 U.S. 81, 98 (1996)).
                                DISCUSSION
       I.   Motion to reopen
      We review the district court’s decision to deny the motion to reopen in
light of the following four factors: (1) the timeliness of the motion; (2) the
character of the testimony the movant wishes to present; (3) the effect of
granting the motion; and (4) the reasonableness of the movant’s excuse for
failing to present the evidence in his case-in-chief. See Walker, 772 F.2d at
1177–84. As discussed below, we conclude that each of the first three factors
favor, or do not weigh against, Martinez. However, Martinez’s failure to
provide the district court with a reasonable explanation for not exercising the

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opportunity to testify before closing his case persuades us that the district
court did not abuse its discretion by denying Martinez’s motion.
                     A. Timeliness of the motion
         Martinez moved to reopen just under 1.5 hours after both parties rested
and closed the evidence. This period of time is similar to or shorter than several
other intervals after which this court has deemed motions timely. See United
States v. Parker, 73 F.3d 48, 53–54 (5th Cir. 1996) (concluding that “a delay of
one hour, during which the court took its normal lunch break” weighed in favor
of the movant), reh’g en banc granted and opinion vacated, 80 F.3d 1042 (5th
Cir. 1996), and opinion reinstated in pertinent part on reh’g, 104 F.3d 72 (5th
Cir. 1997); see also United States v. Rodriguez, 43 F.3d 117, 125–26 (5th Cir.
1995) (concluding that a motion “was timely made” when the parties closed the
evidence one evening, and the defendant moved to reopen the following
morning, prior to closing argument). In Walker, we stated the delay between
the close of evidence on a Friday and the defense’s motion to reopen the
following Monday “weigh[ed] against [the defendant’s] position on appeal,” but
was “minor” and “not . . . such a significant factor as to govern the disposition.”
772 F.2d at 1177–78.
         Given the short time period between the closing of the evidence and
Martinez’s motion, and because Martinez moved to reopen before closing
arguments and the jury charge, the timing of the motion weighs in Martinez’s
favor.
                     B. Character of the testimony
         In Walker, we deemed the defendant’s “testimony in his own defense . . .
of such inherent significance that the district court, as a matter of fairness,
should have permitted him to testify.” 772 F.2d at 1178–79. There, the
defendant “had not testified at all,” and we reasoned that “his testimony would
be of particular interest to the fact finder because he would be testifying as the

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alleged active participant in the activities which were the focus of the trial.”
Id. at 1179. “Where the very point of a trial is to determine whether an
individual was involved in criminal activity,” we stated, “the testimony of the
individual himself must be considered of prime importance.” Id.; see also
Parker, 73 F.3d at 54 (holding that this factor weighed in favor of a defendant
who wished to testify regarding “the one disputed fact in the trial” and who
“was the only source of testimony available . . . to question [an] eyewitness
account”). Testimony that would merely be cumulative of other evidence,
however, may weigh against a motion to reopen. See Rodriguez, 43 F.3d at 126.
      Martinez states that his defense turned on disavowing knowledge of the
methamphetamine in his truck, and argues that “only [he] could have provided
testimony” to rebut testimony law enforcement officers gave regarding the
arrest. In response, the Government emphasizes the lack of any proffer and
highlights defense counsel’s statement to the district court that “it would not
be a good idea [for Martinez] to testify in full detail.” The Government also
contends Martinez’s testimony would not have been helpful because the
Government could have marshalled additional impeachment evidence against
his likely testimony.
      The lack of a formal proffer is not fatal to Martinez’s motion. In Walker,
“no formal proffer of the content of [the defendant’s] testimony was timely
made. . . .” 772 F.2d at 1179. We cautioned that “in other circumstances this
might count heavily against him,” but under the circumstances presented in
Walker, we “[did] not regard it as of any real significance.” Id. The court
described the relevant circumstances as follows:
            Neither the court below nor government counsel even
            obliquely raised any question in this regard, and
            indeed it was evident that the government would
            oppose, and the court would deny, the request to
            reopen regardless of any proffer concerning the

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            content of Walker’s proposed testimony. Moreover, it
            was obvious what Walker (who had not already
            testified) would testify about-namely, his version of his
            own conduct and statements as portrayed by the
            government’s witnesses and asserted by the
            prosecution as constituting the offenses charged.
            These were matters that were, in the vast majority of
            instances, not covered by the testimony of any of the
            defense witnesses. It is and was unmistakable,
            undisputed, and obvious that Walker’s testimony
            would have been highly relevant and significant and
            in no meaningful sense cumulative. Plainly, Walker’s
            testimony had “exculpatory potential” and “would
            have enhanced appellant’s defense.” Apart from what
            appellant would have testified to, his presence on the
            stand would have afforded him the opportunity to have
            the jury observe his demeanor and judge his veracity
            firsthand.
Id. (quoting Larson, 596 F.2d at 779).
      Several of these circumstances are similar to Martinez’s case. Neither
the court nor the Government pressed defense counsel for a proffer. It was
obvious that Martinez would have told “his version” of events. The potential
for cumulative testimony was low, as Martinez would have become the only
defense witness. Though defense counsel believed Martinez’s desire to testify
“would not be a good idea,” and the Government might have impeached
Martinez’s testimony, Martinez’s presence on the stand “would have afforded
him the opportunity to have the jury observe his demeanor and judge his
veracity firsthand.” See id.
      We conclude that the character of Martinez’s likely testimony weighs in
favor of his motion.
                  C. Effect of granting the motion
      “The belated receipt of [the defendant’s] testimony should not ‘imbue the
evidence with distorted importance, prejudice the opposing party’s case, or


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preclude an adversary from having an adequate opportunity to meet the
additional evidence offered.’” Walker, 772 F.2d at 1177 (quoting Thetford, 676
F.2d at 182 (quoting Larson, 596 F.2d at 778)). As in Walker, Martinez’s motion
to reopen came before the jury had been charged and before closing arguments
commenced, see 772 F.2d at 1179, so the flow of trial would not have been
significantly altered by permitting Martinez to testify.
      The Government observes that in this case, the Government had already
released its rebuttal law enforcement witnesses “back on [to] duty somewhere
in the county.” This is a distinction from Walker, where “there [was] no
suggestion in the record . . . that the government let any potential rebuttal
witnesses go.” Id. at 1180. But as Martinez notes, the witnesses had only
recently been released when Martinez moved to reopen. The Government offers
no concrete explanation of the prejudice associated with recalling them, outside
of stating that “the officers would not have been expecting to be called back,
which might have made reaching them difficult.”
      The Government also argues Martinez’s testimony could have confused
jurors and might have required delays for the preparation of new jury
instructions. The district court could have mitigated the risk of jury confusion
through a cautionary instruction. See Parker, 73 F.3d at 54 (“It is clear to us
that, with proper cautionary instruction, the jury could have adequately
weighed the additional testimony.”). Moreover, shortly before Martinez moved
to reopen, the Government indicated that it had already prepared a jury
instruction for use in the event Martinez testified.
      Under these circumstances, the likely effects of granting Martinez’s
motion do not weigh against him.




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                    D. Reasonableness of Martinez’s excuse
      Martinez offered the district court no specific justification for his belated
decision to testify. In fact, defense counsel stated that he asked “in great detail
before . . . clos[ing]” about Martinez’s desire to testify.
      On appeal, Martinez argues that “he was in an unfamiliar setting,” was
in “an agitated and emotional state,” and “had very little time to make one of
the most important decisions in his life.” The Government criticizes Martinez
for failing to articulate these excuses below.
      While Walker says the district court “must” consider the first three
factors discussed above, it does not use the same mandatory language with
respect to the movant’s excuse. See 772 F.2d at 1177 (“The party moving to
reopen should provide a reasonable explanation for failure to present the
evidence in its case-in-chief.”) (quoting Thetford, 676 F.2d at 182). Accordingly,
Martinez’s failure to provide a specific excuse below is not inherently fatal to
his appeal.
      That failure did, however, bring the district court’s decision to deny
Martinez’s motion within the proper scope of its discretion. The court heard no
excuse, and was instead informed that defense counsel spoke in detail with
Martinez about testifying before closing the defense’s case. Although we
conclude the first three factors weigh in Martinez’s favor, or are neutral to him,
this factor weighs against Martinez and provides a sufficient basis for the
district court’s discretionary ruling.
       II.      Methamphetamine quantity
      The PSR attributed to Martinez 22.302 kilograms of methamphetamine
(actual) and 879.317 grams of “ice” methamphetamine. Martinez challenges
both figures.




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                  A. Methamphetamine (actual)
      Martinez contends that the PSR’s calculation of the amount of
methamphetamine (actual) at issue lacks an adequate evidentiary basis. He
focuses on the data presented in the laboratory report the PSR referenced. The
laboratory report set forth the results of testing performed on several buckets
of liquid pumped out of Martinez’s fuel tank. Martinez maintains that the
report   lacks   two   essential    data   points:   (1)     the   volume    of    the
methamphetamine-containing liquid in each bucket; and (2) the weight of
methamphetamine hydrochloride (i.e., the type of methamphetamine the
report identified in the buckets) per unit of volume.
      Martinez notes that the only unit of measurement provided in this report
is a unit of mass/weight (here, kilograms). He highlights testimony from the
report’s author, who stated that she quantified the “concentration” of
methamphetamine in each bucket and observed small variations in the
concentration between buckets. “Concentration” refers to the measure of a
substance present in a given unit of volume of a solution or mixture. See
Concentration, OXFORD ENGLISH DICTIONARY (3d ed. 2015) (definition 5.b).
      The PSR’s attribution of 22.302 kilograms of methamphetamine (actual)
to Martinez matches the quantity one would calculate from the laboratory
report by multiplying each liquid-containing bucket’s “net weight” by the
indicated   percentage    of   methamphetamine       hydrochloride.      The      2015
Sentencing Guidelines, which applied to Martinez’s sentence, specifically
offered a similar weight-based example, stating: “[A] mixture weighing 10
grams containing PCP at 50% purity contains 5 grams of PCP (actual).”
U.S.S.G. § 2D1.1(c), cmt. n.(B) (2015 ed.). The Government submits that the
sentencing court’s adherence to the weight-based example in the guidelines
cannot constitute reversible error.



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       Martinez’s “concentration” argument was not clearly presented below.
Martinez relies on statements from his pro se objections, but those objections
did not bring the specific calculation error Martinez now alleges into adequate
focus. 2 Plain error review therefore applies. We hold that any error in the
district court’s calculation would not have been “clear or obvious,” particularly
in light of the 2015 Sentencing Guidelines’ example calculation, and therefore
could not have constituted reversible plain error. 3
                       B. “Ice” methamphetamine
       Similarly, Martinez argues that the record does not contain the data
necessary to compute the quantity of “ice” methamphetamine seized. The
laboratory report relied upon by the PSR identified two quantities of a “white
crystalline substance” as d-methamphetamine hydrochloride. The reported
“net weight” of these two samples would total approximately 927 grams. To
arrive at the approximately 879 grams of “ice” methamphetamine attributed
to Martinez, the PSR apparently multiplied each sample’s “net weight” by the
indicated percentage of “hydrochloride salt.”
       Martinez argues that the record lacks evidence “as to the purity or
nature of the hydrochloride salt,” and contends the PSR lacked any basis for
concluding       the    hydrochloride        salt    consisted      of    at    least    80%      d-
methamphetamine hydrochloride. See U.S.S.G. § 2D1.1(c), Notes to Drug


       2  By way of example, one of Martinez’s pro se writings stated: “I object[,] no way I had
all that . . . your [sic] adding ghost dope . . . I’m not good at math[,] but I’ve been told all that
does not fit [in] a gas tank . . . I don’t know how to weigh or measure this but it sounds
impossible.” Statements of this sort were not sufficiently specific to notify the district court
of the nuanced argument Martinez asserts on appeal.
       3 Martinez also argues the district court erred by failing to determine how much of the
methamphetamine-containing mixture was “usable.” We disagree. The PSR relied upon the
calculation of the actual amount of methamphetamine in each bucket of liquid, not the weight
of the mixtures.



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Quantity Table (C) (2015 ed.) (“‘Ice,’ for the purposes of this guideline, means
a mixture or substance containing d-methamphetamine hydrochloride of at
least 80% purity.”). Again, Martinez did not clearly raise his current
arguments below and we review only for plain error.
      We hold that the district court did not clearly or obviously err by reading
the percentage notations in the lab report as purity levels. Additionally, even
if the “ice” methamphetamine calculation amounted to plain error, that error
would be harmless. The district court’s calculation of methamphetamine
(actual), which we affirm for the reasons previously stated, provides an
independent basis under which Martinez’s base offense level would remain at
38. See U.S.S.G. § 2D1.1(c), drug quantity table (2015 ed.) (prescribing a base
offense level of 38 for “45 KG or more of Methamphetamine, or 4.5 KG or more
of Methamphetamine (actual), or 4.5 KG or more of ‘Ice’”).
     III.   Explanation of Martinez’s sentence
      Martinez contends the district court erred by sentencing him without an
adequate explanation. We find no reversible error.
      In this case, the court selected a sentence at the bottom of the guidelines
range. “[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 357 (2007). “The sentencing judge should,” however, “set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Id. at 356.
      The parties dispute the applicable standard of review. Martinez contends
his counsel’s general objection “to the reasonableness of the sentence”
preserved his current argument for abuse of discretion review. The
Government contends plain error review applies. United States v. Mondragon-
Santiago resolves this dispute in favor of plain error review. See 564 F.3d 357,

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361 (5th Cir. 2009) (applying plain error review after concluding that an
objection generally arguing that a sentence was “greater than necessary”
would not put the district court on notice “that the defendant wanted further
explanation of the sentence”).
      To prevail on plain error review, Martinez must show that the alleged
error affected his substantial rights. See id. at 361. “To show that an error
affects a defendant’s substantial rights, the defendant must show that it
affected the outcome in the district court . . . .” Id. at 364. Martinez argues that
his substantial rights were affected because the exercise of rendering an
adequate explanation may have prompted the court to consider a different
sentence, and might have refocused the district court on the question of
whether safety valve relief was available.
      “We afford great deference to sentences within the Guidelines range, and
we ‘infer that the judge has considered all the factors for a fair sentence set
forth in the Guidelines in light of the sentencing considerations set out in §
3553(a).’” Id. at 365 (quoting United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008)). “While a district court errs by failing to explain a
sentence, the effect of that error on our review for reasonableness is diminished
when the sentence is within the Guidelines range.” Id.
      Martinez’s speculation that the district court might have reconsidered
his sentence in the course of providing a fuller explanation is too uncertain to
carry his burden of demonstrating the alleged error affected the result below.
Therefore, even if the district court erred by giving an inadequate explanation
(an issue we need not decide), that error would not be reversible on plain error
review.
                                 CONCLUSION
      For the reasons set forth above, we AFFIRM Martinez’s conviction and
sentence.

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