     Case: 18-40068      Document: 00514784313         Page: 1    Date Filed: 01/07/2019




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

                                                                                  FILED
                                    No. 18-40068                            January 7, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SABINO ORLANDO MARTINEZ, also known as Pino,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:15-CR-144-3


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Sabino Orlando Martinez pleaded guilty to one count of conspiracy to
possess with intent to distribute methamphetamine and one count of
conspiracy to possess with intent to distribute cocaine.               A jury convicted
Martinez of one count of conspiracy to commit robbery affecting interstate
commerce, one count of conspiracy to use and carry firearms during and in
relation to a crime of violence, and one count of conspiracy to use and carry


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40068

firearms during and in relation to a drug trafficking offense. The district court
sentenced him below the guidelines range to 960 months of imprisonment.
      Martinez argues there was insufficient evidence to support his conviction
for conspiracy to commit robbery affecting commerce because the Government
did not introduce evidence showing that the crime affected commerce. He also
claims that there was insufficient evidence linking him to the robbery at a
Popeye’s restaurant and establishing a criminal conspiracy.
      Because Martinez did not move for a judgment of acquittal at the close
of the Government’s case or at the close of all evidence, we review this claim
for plain error only. See United States v. Delgado, 672 F.3d 320, 328-31 (5th
Cir. 2012) (en banc). Plain error requires a showing of (1) error, (2) that is clear
or obvious, and (3) that affects substantial rights. Id. at 329 (citation omitted).
If these three prongs are met, we have discretion to correct the error only if it
seriously affects the integrity, fairness, or public reputation of judicial
proceedings. Id. (citation omitted).
      Martinez’s arguments are unavailing. Given the significant amount of
witness testimony connecting Martinez to the robbery of the restaurant and
establishing that it negatively impacted the restaurant in its interstate
business transactions, the record was not devoid of evidence of a conspiracy to
commit robbery affecting interstate commerce. See Delgado, 672 F.3d at 331;
United States v. Box, 50 F.3d 345, 349 (5th Cir. 1995).
      In addition, Martinez argues that Shannon Clark’s death was not
relevant conduct to any of his convictions and, thus, the district court erred in
applying the U.S.S.G. § 2B3.1(c)(1) cross-reference to U.S.S.G. § 2A1.1. He
urges that there was no evidence that he shot Clark with the intent to rob her
or to avoid apprehension in another robbery.
      We review the district court’s application of the Guidelines de novo and
its factual findings for clear error. United States v. Goncalves, 613 F.3d 601,

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                                  No. 18-40068

604-05 (5th Cir. 2010). Martinez has not shown that the district court clearly
erred in finding that Clark’s murder was relevant conduct for purposes of the
cross-reference or in finding that the circumstances of the murder supported
the application of the cross-reference. See § 1B1.3(a)(1)(A), (B); United States
v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
      Martinez also challenges the seven-level enhancement under U.S.S.G.
§ 2B3.1(b)(2)(A) for discharge of a firearm, the six-level bodily injury
enhancement under § 2B3.1(b)(3)(C), and the two-level vulnerable victim
enhancement under U.S.S.G. § 3A1.1(b)(1). Consideration of these claims is
unnecessary.    Given that the district court did not err in applying the
§ 2B3.1(c)(1) cross-reference and a base offense level of 43 under § 2A1.1, any
additional enhancements and adjustments would be inapplicable because “[a]n
offense level of more than 43 is to be treated as an offense level of 43.” U.S.S.G.
Ch.5, Pt.A, comment. (n.2).
      Finally, Martinez urges that the district court imposed a substantively
unreasonable sentence because it relied upon an erroneously-calculated
guidelines range.     Because Martinez did not object to the substantive
reasonableness of his sentence at the time it was imposed, review is limited to
plain error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
      The record in the instant case demonstrates that the district court made
an individualized assessment to determine whether a sentence below the
guidelines range was sufficient but not greater than necessary to achieve the
goals of 18 U.S.C. § 3553(a). See § 3553(a). Martinez has not shown any error,
plain or otherwise, with respect to the substantive reasonableness of his
sentence. See Peltier, 505 F.3d at 391.
      AFFIRMED.




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