     Case: 08-40999     Document: 00511258626          Page: 1    Date Filed: 10/08/2010




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

                                                 FILED
                                                                           October 8, 2010
                                     No. 08-40999
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ROBERTO ORTEGA MARTINEZ, also known as Robert Ortega Martinez,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:06-CR-1089-6


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Roberto Ortega Martinez appeals both his guilty plea convictions and
within-guidelines sentence of 412 months’ imprisonment for attempting to
possess, with intent to distribute, approximately two kilograms of cocaine in
June 2006 and using and carrying a firearm during the commission of that drug-
trafficking offense. He contends: the district court committed plain error in
misadvising him of the applicable penalties, resulting in a guilty plea that was
not knowing, voluntary, and intelligent; his sentence was procedurally

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40999     Document: 00511258626 Page: 2         Date Filed: 10/08/2010
                                  No. 08-40999

unreasonable;      and   the   court   committed    clear    error   by   including
methamphetamine and cocaine stolen in July 2006 as part of its drug-quantity
calculations for sentencing purposes.
      We review only for plain error two issues that Martinez did not raise in
district court:     his guilty plea was involuntary, and his sentence was
procedurally unreasonable. See United States v. Vonn, 535 U.S. 55, 59 (2002).
Under plain-error review, we may reverse if, inter alia: there is error; it is clear
or obvious; and it affects defendant’s substantial rights. E.g., United States v.
Molina, 469 F.3d 408, 411 (5th Cir. 2006).
      For showing reversible plain error for his plea, Martinez must show a
reasonable probability that, but for the error, he would not have entered the
plea. Id. at 411–12. In contending his convictions must be vacated, Martinez
claims an incorrect possible-penalties admonition rendered his guilty plea
involuntary.      Even assuming the district court committed plain error in
misadvising him of the applicable penalties, Martinez points to no record
evidence showing the error affected his decision to plead guilty. See id. at 412;
see also United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Accordingly,
Martinez fails to meet his burden under plain-error review.
      For the two sentencing issues, we engage in a bifurcated review of the
sentence imposed by the district court. Gall v. United States, 552 U.S. 38, 50–51
(2007). Although the substantive reasonableness of the sentence is ultimately
reviewed under an abuse-of-discretion standard, we must first ensure that the
district court committed no “significant procedural error”, such as imposing a
sentence based on clearly erroneous findings of fact. Id. at 51. 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);
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      We likewise reject Martinez’ assertion that the district court committed
procedural error by attributing drug quantities to Martinez that were not proven

                                         2
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                                 No. 08-40999

to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). Because Martinez’ drug-offense sentence was within the advisory
Guidelines sentencing range, the district court was required to find evidence of
the drug quantity only by a preponderance of the evidence, and it was not plain
error to do so. United States v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000).
Moreover, Martinez’ within-guidelines sentence is entitled to a presumption of
reasonableness which Martinez has not rebutted. Gall, 552 U.S. at 51.
      Finally, Martinez fails to show the district court committed clear error by
including, as part of its drug-quantity calculations, methamphetamine and
cocaine stolen in July 2006. See United States v. Posada-Rios, 158 F.3d 832, 878
(5th Cir. 1998). In determining the amount of drugs attributable to defendant,
the sentencing court may consider any relevant information, without regard to
its admissibility, as long as the court concludes that it has sufficient indicia of
reliability. Id. Consequently, the district court did not commit clear error in
relying on the presentence investigation report and testimony from the trial of
Martinez’ codefendants to make its drug-quantity finding. See United States v.
Ramirez, 963 F.2d 693, 708 (5th Cir. 1992). Although Martinez asserts the
district court did not provide him adequate notice of its intent to rely upon that
trial evidence, he did not object on this basis at sentencing and has not shown
that the lack of notice affected the outcome of the district court proceedings. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      AFFIRMED.




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