     Case: 12-41272      Document: 00512446776         Page: 1    Date Filed: 11/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-41272
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 19, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

REYNALDO MARTIN MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-87-2


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Reynaldo Martin Martinez was convicted by a jury
of a single count of conspiracy to possess with intent to distribute 1000
kilograms or more of marijuana. See 21 U.S.C. §§ 841 and 846. He was
sentenced within the applicable guidelines range to 135 months of
imprisonment and five years of supervised release. Martinez raises five issues
on appeal.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41272     Document: 00512446776     Page: 2   Date Filed: 11/19/2013


                                 No. 12-41272



1. Sufficiency of the evidence
      Martinez contends that the evidence was insufficient to support his
conspiracy conviction. As he moved for a judgment of acquittal at the close of
the government’s case and renewed that motion at the close of all the evidence,
he preserved this issue for appeal. We review his challenge to the sufficiency
of the evidence de novo. See United States v. Burns, 162 F.3d 840, 847 (5th
Cir. 1998). We must determine whether, “viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). To establish a conspiracy to distribute a
controlled substance, the government must prove: “(1) the existence of an
agreement between two or more persons to violate narcotics laws; (2) the
defendant’s knowledge of the agreement; and (3) his voluntary participation in
the conspiracy.” United States v. Valdez, 453 F.3d 252, 256-57 (5th Cir. 2006).
      We conclude that a rational jury could have found that the essential
elements of the conspiracy offense were established beyond a reasonable doubt.
See Jackson, 443 U.S. at 319. First, Martinez’s co-defendant, Jesus Torres,
testified that Martinez knew that marijuana would be placed in the trailer and
that he would be paid $8,000 on delivery. See United States v. Patino-Prado,
533 F.3d 304, 309 (5th Cir. 2008).         Other evidence, such as Martinez’s
nervousness and the inconsistent documentation he presented when stopped,
further supports a finding that Martinez was aware that the marijuana was in
his trailer and that he was a knowing and willing participant in the conspiracy.
Finally, a defendant’s guilty knowledge may be inferred when the amount of
drugs, which here was valued at more than $2,000,000, is so large that it is not
rational to believe that the drugs would be entrusted to a party who is not a



                                       2
    Case: 12-41272       Document: 00512446776    Page: 3   Date Filed: 11/19/2013


                                   No. 12-41272

member of a drug conspiracy. See United States v. White, 219 F.3d 442, 447-
48 (5th Cir. 2000).
2. Jury misconduct
      Martinez next asserts that the district court should have granted his
motion for a mistrial because the jury engaged in misconduct that potentially
prejudiced him.       “Judges have broad discretion to deal with possible jury
misconduct.” United State v. York, 600 F.3d 347, 356 (5th Cir. 2010). This
discretion is at its widest when evaluating claims of internal jury misconduct.
See id.   We review the denial of a motion for a mistrial based on jury
misconduct for abuse of discretion. Id. at 355.
      Prior to the close of all the evidence, the district court learned that
members of the jury might have engaged in premature deliberations by
discussing the evidence they had heard. With counsel present, the district
court interviewed each juror individually; in addition, the attorneys were
allowed to ask any questions they thought appropriate.             During these
interviews, the district court also learned that Juror #1 had discussed his
experiences as a truck driver in the 1960s, particularly in regard to the
logbooks kept by drivers.
      In light of the limited nature of the jurors’ premature discussions of the
evidence, which most of the jurors described as attempts to clarify what they
had heard, as well as the statements from the jurors that they had not
discussed the merits of the case or reached any decision, Martinez has not
shown that the district court abused its broad discretion by denying his motion
for a mistrial. See York, 600 F.3d at 356.
      When a jury has been exposed to extraneous information, a defendant
“is entitled to a new trial unless there is no reasonable possibility that the
jury’s verdict was influenced by the material that improperly came before it.”



                                        3
    Case: 12-41272    Document: 00512446776     Page: 4   Date Filed: 11/19/2013


                                 No. 12-41272

United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991) (internal quotation
marks and citation omitted).      Although a district court may investigate
whether extraneous evidence has been presented to the jury, it may not inquire
into the effect of such evidence on the mind of the jurors. See United States v.
Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995) (discussing Federal Rule of Evidence
606(b)(2)(A)). Instead, the court should examine “the content of the extrinsic
material, the manner in which it came to the jury’s attention, and the weight
of the evidence against the defendant.” Id. (internal quotation marks and
citation omitted).
      Juror #1 specifically denied telling other jurors that there was anything
“wrong” with Martinez’s logbook and, with one exception, the other jurors
agreed. The district court excused Juror #1 and admonished the jury that they
should disregard anything he might have said about driving trucks or keeping
a logbook. The court also reminded the jury that they should only consider the
evidence presented during the trial. Finally, as discussed above, the weight of
the other evidence supported Martinez’s guilt. The district court did not abuse
its discretion by denying a mistrial because there is no reasonable possibility
that the extraneous information provided by Juror #1 influenced the verdict.
See Ortiz, 942 F.2d at 913.
3. Enhancement for obstruction of justice
      Martinez objected to the imposition of a two-level enhancement for
obstruction of justice, which was based on a finding that he had committed
perjury at trial by denying any knowledge of the marijuana in the trailer. On
appeal, Martinez complains that the district court failed to make the
independent findings required to support the enhancement.
      Section 3C1.1 of the Sentencing Guidelines provides for a two-level
increase if “the defendant willfully obstructed or impeded, or attempted to



                                       4
    Case: 12-41272     Document: 00512446776     Page: 5   Date Filed: 11/19/2013


                                  No. 12-41272

obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction,”
and such conduct relates to the defendant’s offense of conviction. Committing
perjury is one example of conduct to which the enhancement applies. § 3C1.1,
comment. (n.4(B)). For purposes of § 3C1.1, a defendant commits perjury if he
provides “false testimony concerning a material matter with the willful intent
to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory.”      United States v. Dunnigan, 507 U.S. 87, 94 (1993).         A
defendant’s objection to a sentence enhancement resulting from his trial
testimony triggers a duty by the district court to “review the evidence and
make independent findings necessary to establish a willful impediment to or
obstruction of justice, or an attempt to do the same,” under the definition of
perjury. United States v. Perez-Solis, 709 F.3d 453, 469 (5th Cir. 2013). “A
district court’s interpretation or application of the Sentencing Guidelines is
reviewed de novo, and its factual findings, such as a finding of obstruction of
justice, are reviewed for clear error.” United States v. Juarez-Duarte, 513 F.3d
204, 208 (5th Cir. 2008). A factual finding is not clearly erroneous if it is
“plausible in light of the record as a whole.” Id.
      To the extent Martinez claims that the district court failed to make the
required independent findings, he raised no objection that would have alerted
the district court to this issue. Accordingly, any contention regarding the
adequacy of the district court’s reasons is reviewed for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To establish
plain error, the appellant must show a forfeited error that is clear or obvious
and that affects his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If the appellant makes such a showing, we have as the discretion




                                        5
    Case: 12-41272     Document: 00512446776      Page: 6    Date Filed: 11/19/2013


                                  No. 12-41272

to correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
      Although the district court found that Martinez’s testimony regarding
his knowledge of the marijuana was not truthful, it made no specific findings
as to whether his false testimony was material or willful. Therefore, the
district court committed an error that was plain. See Puckett, 556 U.S. at 135.
However, for the reasons discussed below, the record demonstrates that
Martinez’s testimony was false, material, and willful. See Perez-Solis, 709 F.3d
at 469. Therefore, Martinez cannot show that the district court’s failure to
make factual findings regarding materiality and willfulness affected his
substantial rights or that a failure to correct this error would “seriously affect[]
the fairness, integrity, or public reputation of judicial proceedings. See Puckett,
556 U.S. at 135.
      Martinez’s denial of knowledge of the presence of marijuana in the
trailer was squarely contradicted by the earlier testimony of Torres.            In
addition, Martinez’s denial was undercut by circumstantial evidence of his
guilty knowledge, such as his nervousness and his attempts to conceal the
nature of his cargo. See United States v. Jones, 185 F.3d 459, 464 (5th Cir.
1999). Therefore, the district court did not clearly err in finding that Martinez
testified falsely. In addition, because Martinez’s defense was that he was not
a knowing participant in the conspiracy, his denial of knowledge of the
presence of marijuana in the trailer clearly was material. Finally, because his
denial was unequivocal and it occurred after the government already had
presented evidence that Martinez did know of the marijuana, his testimony
clearly was willful, rather than the result of confusion or mistake. Martinez
has not shown that the district court clearly erred in applying the obstruction
of justice enhancement.



                                         6
    Case: 12-41272     Document: 00512446776      Page: 7    Date Filed: 11/19/2013


                                  No. 12-41272

4. Reasonableness of sentence
      Martinez next contends that his within-guidelines 135-month sentence
was unreasonable because it was greater than necessary to achieve the goals
of 18 U.S.C. § 3553(a). We review the reasonableness of the sentence imposed
for an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). A
within-guidelines sentence is presumed to be reasonable. See United States v.
Brown, 727 F.3d 329, 342 (5th Cir. 2013). To rebut that presumption, Martinez
had to show that the sentence did not account for a factor that should have
received significant weight, gave significant weight to an irrelevant or
improper factor, or represented a clear error of judgment in balancing the
sentencing factors. See id. Martinez did not challenge the reasonableness of
his sentence in the district court, so we review for plain error. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      As noted, Martinez’s sentence of 135 months was within the calculated
guidelines range of 120 to 135 months, and he concedes that it is presumptively
reasonable. He nevertheless urges that a presumption of reasonableness gives
too much weight to a single factor, the applicable guidelines range.            His
challenge to the presumption of reasonableness is foreclosed.          See Rita v.
United States, 551 U.S. 338, 347 (2007).
      Martinez argues that the factors cited by the district court in explaining
its choice of a sentence at the high end of the guidelines range were already
taken into account by the Guidelines. After properly calculating the applicable
guidelines range, a district court must consider the § 3553(a) factors when
selecting the exact sentence. See Gall, 552 U.S. at 49-50. In the instant case,
the district court cited the quantity of marijuana involved, Martinez’s perjury
at trial, his criminal history, and his history of alcohol abuse. The district court
also stated that the sentence imposed would provide just punishment, promote



                                         7
    Case: 12-41272     Document: 00512446776     Page: 8   Date Filed: 11/19/2013


                                  No. 12-41272

respect for the law, and deter future criminal violations. All of these were
appropriate factors for consideration under § 3553(a). Martinez also argues
that his sentence was unreasonable because the district court did not provide
any significant and meaningful consideration of mitigation factors. He does
not, however, identify any such mitigating factors in his brief, and no such
factors other than his minor role in the offense (for which he received an offense
level reduction), were identified in the PSR or at sentencing.
      Martinez has not shown that the sentence imposed failed to account for
a factor that should have received significant weight, gave significant weight
to an irrelevant or improper factor, or represented a clear error of judgment in
balancing the sentencing factors. See Brown, 727 F.3d at 342. He thus has not
shown that the district court plainly erred.
5. Imposition of a term of supervised release
      Martinez finally asserts that, because he is likely to be deported, the
district court’s imposition of a term of supervised release was procedurally and
substantively unreasonable. This contention is based on U.S.S.G. § 5D1.1(c),
which states that a “court ordinarily should not impose a term of supervised
release in a case in which supervised release is not required by statute and the
defendant is a deportable alien who likely will be deported after
imprisonment.” Martinez concedes that this issue is foreclosed by our decision
in United States v. Becerril-Pena, 714 F.3d 347 (5th Cir. 2013), but he states
he raises this issue to preserve it for further review.
      Martinez was convicted of an offense involving more than 1,000
kilograms of marijuana, so his sentencing was governed by the provisions of
§ 841(b)(1)(A)(vii).   That subsection requires the imposition of a term of
supervised release of “at least 5 years.” § 841(b)(1)(A). By its own terms, the
provisions of §5D1.1(c) do not apply when a term of supervised release is



                                        8
    Case: 12-41272   Document: 00512446776     Page: 9   Date Filed: 11/19/2013


                                No. 12-41272

required by statute. See § 5D1.1(c). The district court’s imposition of a term
of supervised release was not erroneous.
      AFFIRMED.




                                      9
