     Case: 19-10506       Document: 00515315010         Page: 1     Date Filed: 02/19/2020




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

                                                                                   FILED
                                     No. 19-10506                          February 19, 2020
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

QUINNTERRION DJESE COURRTEZ MARTIN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-307-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Quinnterrion Djese Courrtez Martin pleaded guilty, without a plea
agreement, to brandishing a firearm in furtherance of a crime of violence
(interference with commerce by robbery), in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). The district court sentenced him to, inter alia, an above
Sentencing      Guidelines      term    of    120-months’      imprisonment,            to      run
consecutively to any sentences imposed upon conviction for any of four pending


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-10506

state charges for aggravated robbery and engaging in organized crime. Martin
challenges the substantive reasonableness of the court’s: ordering his sentence
run consecutively to any sentences imposed in the state cases; and considering
conduct at issue in those cases in determining his present sentence.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). As noted, procedural error is not claimed.
      An above-Guidelines sentence is substantively unreasonable if “it (1)
does not account for a factor that should have received significant weight, (2)
gives significant weight to an irrelevant or improper factor, or (3) represents a
clear error of judgment in balancing the sentencing factors” in 18 U.S.C.
§ 3553(a) (factors for consideration during sentencing). United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006) (citations omitted). In that regard, a court is
required to impose a sentence that is “sufficient, but not greater than
necessary”, to satisfy the needs for the sentence, inter alia, “(A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; [and] (C) to protect the public from further crimes of the defendant”.
18 U.S.C. § 3553(a)(2). The court must also consider, inter alia, “the kinds of
sentences available”, “the need to avoid unwarranted sentence disparities”,



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                                  No. 19-10506

and “the nature and circumstances of the offense and the history and
characteristics of the defendant”.     Id. §§ 3553(a)(1), (3), (6).    Ultimately,
“[w]hether a sentence imposed should run consecutively or concurrently [to an
undischarged state sentence] is committed to the sound discretion of the
district court, subject to consideration of the factors set forth in 18 U.S.C.
§ 3553(a)”.   United States v. Setser, 607 F.3d 128, 130 (5th Cir. 2010)
(alterations in original) (citation omitted), aff’d, 566 U.S. 231 (2012).
      Martin’s sentence was not substantively unreasonable. In ordering his
sentence run consecutively with any sentences imposed in the pending state
cases, the court explicitly concluded that Martin’s sentence was “absolutely
necessary” to “properly” account for the § 3553(a) factors.        In doing so, it
compared Martin’s conduct and characteristics to those of another participant
in the robberies to avoid unwarranted sentencing discrepancies between them,
and it also credited mitigating evidence Martin provided. Additionally, the
court noted the serious nature of the offense, as part of an ongoing series of
robberies, and Martin’s history and characteristics, as illustrated by his
continuing participation in those robberies.        It also considered that the
Government did not plan to charge Martin with certain other criminal conduct
and noted the severity of criminal conduct at issue in the pending state cases.
      Contrary to Martin’s contention, the court did not err in considering
criminal conduct at issue in the pending state cases. This is because Guideline
§ 2B3.1 (robberies) is “[s]pecifically excluded” from Guideline § 3D1.2
(grouping of closely-related conduct), meaning different robberies are not
required to be grouped together for sentencing purposes.              See U.S.S.G.
§ 3D1.2(d). And, because Guideline § 1B1.3 (relevant conduct) does not include
offenses excluded from grouping under Guideline § 3D1.2(d), see id.
§ 1B1.3(a)(2), the mandate in Guideline § 5G1.3 (determining sentence),



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                                 No. 19-10506

requiring a sentence run concurrently to an anticipated state sentence based
on relevant conduct (as identified by Guideline § 1B1.3), does not apply, see id.
§ 5G1.3(c). (To the extent Martin has not waived, for failure to adequately
brief, a challenge to Guideline § 3D1.2(d)’s exclusion of robberies as
undermining federal-sentencing policy, generally unfair, and arbitrary, see
United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (citations
omitted) (holding claims not adequately pressed in briefing waived), any such
claim lacks merit.)
      AFFIRMED.




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