     Case: 16-50190      Document: 00514144967         Page: 1    Date Filed: 09/06/2017




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

                                      No. 16-50190
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                             September 6, 2017

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

v.

CESAR GERARDO MARTINEZ-SAAVEDRA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:07-CR-410-1


Before JOLLY, ELROD, Circuit Judges, and STARRETT, District Judge. *
KEITH STARRETT, District Judge: **
       In 2009, Appellant Cesar Gerardo Martinez-Saavedra (“Martinez”) was
convicted of four drug-trafficking crimes and sentenced to concurrent
sentences of 151 months. In April 2014, the U.S. Sentencing Commission
approved the amended guideline which reduced across the board the drug
quantity table by two levels. 1 On March 27, 2015, after consulting with the


       * District Judge of the Southern District of Mississippi, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 This has since become known as “Drugs Minus Two” and has had the effect of

lowering the guideline range for most people previously sentenced for a drug crime. In July
2014, the Commission voted to make the amendment retroactive, which meant that
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                                    No. 16-50190
Government, Martinez filed an Agreed Motion for a Sentence Reduction. After
a short hearing on the motion on February 11, 2016, the district court denied
relief.     Martinez argues that the district court erroneously relied on
impermissible factors and erroneously refused to consider his post-sentencing
conduct.       Because the reasons behind this denial are not adequately
articulated, we REMAND the case to the district court with instructions to
clarify whether the district court considered impermissible factors.                We
AFFIRM as to the district court’s refusal to consider Martinez’s post-
sentencing conduct.
                                           I.
          On May 2, 2007, Custom and Border Protection (“CBP”) discovered 12.04
kilograms of cocaine in Martinez’s minivan as he and his passenger, Jacobo
Alba-Barba, attempted entry to the United States through the United States
Port of Entry in Del Rio, Texas. Martinez was referred to secondary inspection
when CBP officers noted black mesh blocking the van’s front-dash vent.
Martinez denied knowledge of anything illicit in the van. He was taken into
custody and advised of his rights when CBP officers removed 13 packages of
cocaine out of a hidden compartment in his dash. Martinez waived his rights
and provided a sworn statement, in which he stated that a person named
“Fausto” had borrowed his van and that Martinez believed that he had hidden
money in it. He further stated that Fausto had threatened him and his family
if he refused to drive the van into the United States.
          Martinez’s border crossing history subsequently revealed that he had
crossed into the United States on April 29, 2007, three days prior to the
incident. Testimony at trial was that this first crossing was for a family



previously sentenced offenders, such as Martinez, could petition to have their sentences
reduced.
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                                  No. 16-50190
shopping trip, but the Government argued at trial that the real purpose was
to “probe the border.”
      Martinez was charged in a four-count indictment on May 23, 2007, in the
Western District of Texas. The first two counts of the indictment were for
conspiracy to possess with intent to distribute 5 kilograms or more of cocaine,
and conspiracy to import the same, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846, 952(a), 960(a)(1), and 963. Counts three and four were for
possession with intent to distribute 5 kilograms or more of cocaine, and the
unlawful importation of the same, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 952(a), 960(a)(1), and 960(b)(1).
      The district court transferred the case to United States District Judge
William Wayne Justice for trial. On October 11, 2007, after a two-day trial,
the jury returned a guilty verdict against Martinez on all four counts.
      The case was transferred back to the original judge for sentencing, which
was held on March 2, 2009. The Pre-Sentence Report reflected a base offense
level of 32 and a Criminal History Category of I, which yielded a guideline
range of 121 to 151 months incarceration. The Government moved for a two-
level obstruction-of-justice enhancement, which the district court denied.
Ultimately, Martinez was given a guideline-range sentence of 151 months
imprisonment, five years of supervised release, and a $400 special assessment.
      Martinez appealed, and this Court affirmed his conviction and sentence.
On June 26, 2012, he filed a Motion under Title 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody, which the district
court denied as untimely.
                                       II.
      On March 27, 2017, an Agreed Motion for Reduction of Sentence was
filed pursuant to 18 U.S.C. § 3582(c)(2). In this motion, the parties asked that
a two-level reduction in Martinez’s base offense level, from 32 to 30, be applied
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in accordance with the recent drug sentencing guideline amendments, made
retroactive by the U.S. Sentencing Committee. See U.S.S.G. App. C., amend.
No. 782; U.S.S.G. § 1B1.10, p.s. (eff. Nov. 1, 2014). This reduction would have
changed Martinez’s guideline-sentencing range from 121 to 151 months to 120 2
to 121 months. The motion asked that the sentence be modified to 121 months.
In a hearing held on the motion on February 11, 2016, the district court stated
the following:
      This was a jury trial. I remember this from the jury trial. It was
      hard fought. I’m not inclined to grant this one. And I remember
      that part of it was the defendant – I’m trying to remember. It was
      -- he did not testify, but the argument was that he didn’t know
      what was in there, even though he had given a statement,
      somewhat, to that effect. And the jury heard quite a bit on this
      case. If I remember correctly, too, there was testimony that this
      was not the first time.

Subsequently, the district court entered an order that same day denying the
motion. Martinez timely appealed.
                                          III.
      The Court reviews a denial of a motion to reduce a sentence under 18
U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Henderson, 636
F.3d 713, 717 (5th Cir. 2011). “A district court abuses its discretion if it bases
its decision on an error of law or a clearly erroneous assessment of the
evidence.” Id.
      Section 3582(c)(2) states that
      in the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently
      been lowered by the Sentencing Commission . . . , upon motion of
      the defendant . . . , the court may reduce the term of
      imprisonment, after considering the factors set forth in section


      2 The mandatory-minimum sentence for the offense is set by statute to be ten years.
See 21 U.S.C. § 841(b)(1)(A).
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       3553(a) to the extent that they are applicable, if such a reduction
       is consistent with applicable policy statements issued by the
       Sentencing Commission.

18 U.S.C. § 3582(c)(2). “The district court must conduct a two-step inquiry”
when addressing motions under § 3582(c)(2): (1) it must “determine whether
the prisoner is eligible for a sentence modification and the extent of the
reduction authorized;” 3 and (2) it must “consider any applicable § 3553(a)
factors and determine whether, in its discretion, the reduction authorized . . .
is warranted in whole or in part under the particular circumstances of the
case.” Henderson, 636 F.3d at 717 (citation omitted). The factors of § 3553(a)
include, among others, “the nature and circumstances of the offense” and “the
history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The
district court also “may consider post-sentencing conduct of the defendant that
occurred     after     imposition      of    the     term      of    imprisonment        in
determining . . . whether a reduction in the defendant’s term of imprisonment
is warranted.” United States v. Coleman, 678 F.App’x 262, 263 (5th Cir. 2017)
(per curiam) (quoting U.S.S.G. § 1B1.10, cmt. (n.1(B)(iii))) (alteration in
original). Where the district court has explicitly based its rulings on erroneous
factors, its implicit consideration of the factors from § 3553(a) is not sufficient
to support its ruling. See United States v. Levay, 76 F.3d 671, 674 (5th Cir.
1996).
                                            A.
       Martinez first argues that the district court based its rulings on
erroneous factors. Because the record is unclear as to what factors the district




       3Though this first step was not addressed by the district court, the court implicitly
held that Martinez was eligible for a reduction by proceeding to the second step. No party
disputes that Martinez was eligible for the reduction.
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                                   No. 16-50190
court relied on when denying the agreed motion, we remand on this issue for
further clarification.
      The district court’s statement that there was a “hard fought” jury trial
suggests that it may have impermissibly considered the fact that defendant
exercised his right to a trial in making its decision. We have previously held
that a denial of a motion under § 3582(c)(2) on this basis is an abuse of
discretion. See Coleman, 678 F.App’x at 264.
      Martinez further argues that the district court’s observations about his
testimony at trial should be interpreted as the court impermissibly revisiting
its denial of an obstruction-of-justice enhancement, which was argued and
denied at his original sentencing.        Under U.S.S.G. § 1B1.10(b)(1), when
determining if and to what extent a reduction is warranted under § 3582(c)(2),
the district court must “leave all other guideline application decisions
unaffected.”   Therefore, if the district court’s statements did amount to a
reconsideration    of    its   previous   denial   of   the   obstruction-of-justice
enhancement, it would have abused its discretion because its decision would
be based on an error of law. See Henderson, 636 F.3d at 717.
      There is also uncertainty as to what the district court’s comment that
this was “not the first time” alludes. Martinez contends that the district court
mistakenly believed that he had a past criminal history, but the Government
argues that the court meant only that it was not the first time Martinez had
crossed the border.
      Because the district court’s articulation of its reasons for denial is vague,
we cannot definitively say whether it relied on impermissible factors. As such,
we remand for clarification.
                                          B.
      Martinez also argues that the district court erred in not considering his
post-sentencing conduct. Though a district court may consider post-sentencing
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                                 No. 16-50190
conduct, we have previously held that it “is not required to consider post-
sentencing conduct when making a determination as to a sentence reduction.”
Coleman, 678 F.App’x at 263 (emphasis in original); see also United States v.
Larry, 632 F.3d 933, 936 (5th Cir. 2011) (holding that a district “may” consider
post-sentencing conduct); United States v. Robinson, 542 F.3d 1045, 1052 (5th
Cir. 2008) (stating that the district court is “allow[ed]” to consider post-
sentencing conduct). Because it is not required that the district court consider
post-sentencing conduct, we affirm the district court’s decision to not consider
such conduct in this case.
                                      IV.
      For the reasons stated above, we AFFIRM the district court’s refusal to
consider Martinez’s post-sentencing conduct. We further REMAND the case to
the district court for clarification of the reasons for its denial of the Agreed
Motion for a Sentence Reduction under 18 U.S.C. § 3582(c)(2).




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