     Case: 13-41292   Document: 00513502848        Page: 1   Date Filed: 05/12/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-41292                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            May 12, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JULIAN MARTINEZ-RODRIGUEZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Julian Martinez-Rodriguez (“Martinez”) appeals his sentence. Martinez
contends that the district court committed reversible error by failing to remove
a two-level sentencing enhancement after determining that the required
predicate for its imposition did not apply.        Martinez also argues that his
sentence was substantively unreasonable under 18 U.S.C. § 3553(a). For the
reasons that follow, we VACATE Martinez’s sentence and REMAND for
resentencing.
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                                    No. 13-41292
                                          I.
        Martinez pled guilty to one count of possession with intent to distribute
crystal methamphetamine in violation of 21 U.S.C. § 841(a)(l).
        His presentence report (“PSR”) recommended, in part, that Martinez
receive a two-level sentencing enhancement under U.S.S.G. § 3B1.1 (as an
organizer/leader), as well as a two-level enhancement under U.S.S.G.
§ 2D1.1(b)(14)(B)(i) (for involving a minor in the crime as an organizer/leader). 1
Including both enhancements, Martinez’s total calculated offense level was 44
(with criminal history category of III), which resulted in an advisory guideline
range of life in prison.
        Martinez filed an objection to the PSR, arguing that he was not an
organizer/leader, thus negating the enhancement under § 3B1.1. Martinez
further argued that he was unaware that his son had accompanied a
codefendant to a narcotics negotiation and that enhancement under
§ 2D1.1(b)(14)(B)(i) was unsupported by the facts. Martinez did not argue,
however, that if enhancement under § 3B1.1 was not imposed, then
enhancement under § 2D1.1(b)(14)(B)(i) was also precluded.
        At his sentencing hearing, the district court noted that because some of
Martinez’s objections had been addressed in chambers, it would “just skip
ahead to the [§ 3B1.1] role issue.” Martinez did not object. After finding that
Martinez was not an organizer/leader, the district court granted Martinez’s
§ 3B1.1 objection and removed the two-level enhancement from his total
offense level. Martinez was then asked: “Is there anything else you wanted to
add?”       Martinez did not mention or object to enhancement under



        1Martinez was sentenced under the 2012 Sentencing Guidelines. Under the plain
language of the Guidelines, U.S.S.G. § 2D1.1(b)(14)(B)(i) only applies if the defendant
receives an enhancement under U.S.S.G. § 3B1.1. Compare U.S.S.G. § 2D1.1(b)(14)(B)(i)
(2012) with U.S.S.G. § 3B1.1 (2012).
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                                  No. 13-41292
§ 2D1.1(b)(14)(B)(i), but instead began addressing other objections.           The
district court then applied the enhancement under § 2D1.1(b)(14)(B)(i), but
granted Martinez an additional three-level reduction for acceptance of
responsibility and a two-point deduction from his criminal history score. After
the adjustments, Martinez’s total offense level was 41 (with a criminal history
category of II), which resulted in an advisory guideline range of 360 months to
life in prison. Martinez was sentenced at the bottom of that range to 360
months in prison and five years of probation.
      Martinez moved for reconsideration of the sentence, arguing that the
360-month sentence was greater than necessary to comply with the
requirements of 18 U.S.C. § 3553(a). His motion was denied.
      Martinez appealed to this Court, contending that the district court’s
failure to remove the § 2D1.1(b)(14)(B)(i) enhancement constituted reversible
error and that his sentence was substantively unreasonable under § 3553(a).
                                        II.
      “Where a defendant preserves error by objecting at sentencing, we
review the sentencing court’s factual findings for clear error and its
interpretation or application of the Sentencing Guidelines de novo.” United
States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015).
      We review unpreserved sentencing objections, however, “only for plain
error.” United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). Moreover,
our review for plain error is limited, as we “may not correct an error the
defendant failed to raise in the district court unless there is ‘(1) error, (2) that
is plain, and (3) that affects substantial rights.’” Id. (citing United States v.
Cotton, 535 U.S. 625, 631 (2002)). Furthermore, “[i]f all three conditions are
met [we] may then exercise [] discretion to notice a forfeited error but only if
(4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.
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                                   No. 13-41292
                                        III.
                                         A.
      Before determining the merits of Martinez’s first argument—that his
enhancement under § 2D1.1(b)(14)(B)(i) constitutes reversible error—we first
consider the scope of our review.
      The facts in this appeal are stipulated. Both parties agree that the
district court committed procedural error by applying the enhancement to
Martinez’s sentence under § 2D1.1(b)(14)(B)(i). The first question we must
address, however, is whether Martinez preserved the specific objection he now
raises—that § 2D1.1(b)(14)(B)(i) applies only if an enhancement under § 3B1.1
is imposed.
      Martinez argues that under United States v. Neal, 578 F.3d 270, 272–73
(5th Cir. 2009), his written objection to § 2D1.1(b)(14)(B)(i) was specific, clear,
and sufficient to direct the district court’s attention to the objection he makes
currently.    Furthermore, Martinez argues that even if, at his sentencing
hearing, he failed to properly object to § 2D1.1(b)(14)(B)(i) on the basis he now
raises on appeal, because his objection was in writing, it thus is “nevertheless
preserved for appeal.” Id. Accordingly, Martinez contends that the district
court’s application of § 2D1.1(b)(14)(B)(i) should be reviewed for clear error.
But Martinez has not pointed to sufficient record evidence to support his
position.
      The “central inquiry [for preservation purposes] is the specificity and
clarity of the initial objection, not the defendant’s persistence in seeking relief.”
Neal, 578 F.3d at 273. Thus, Martinez is correct that if his initial written
objection to § 2D1.1(b)(14)(B)(i) was specific and clear enough “to alert the
district court to the nature of the alleged error and to provide an opportunity
for correction,” then it is preserved for appeal. Id. at 272.


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                                     No. 13-41292
      In his written objection to § 2D1.1(b)(14)(B)(i), however, Martinez argued
only that the enhancement should not apply because he did not know that his
son had accompanied a codefendant to a narcotics negotiation. In other words,
Martinez did not object that the enhancement would not apply in the absence
of an underlying § 3B1.1 enhancement. And, after failing to clearly object in
writing, Martinez did not mention § 2D1.1(b)(14)(B)(i) at his sentencing
hearing or in his motion for reconsideration.              Consequently, Martinez’s
objection was not preserved, and we will review the district court’s application
of § 2D1.1(b)(14)(B)(i) for plain error only.
                                           B.
      Under the plain error analysis, Martinez has the burden to establish:
1) an error; 2) that the error was plain; 3) that his substantial rights were
affected; and 4) that the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Mares, 402 F.3d at 520. Because both
parties agree that the district court erred by applying § 2D1.1(b)(14)(B)(i), and
that the error was plain under the statute, we need not discuss the first two
prongs of our plain error analysis, and instead turn to the third prong—
whether Martinez has shown that his substantial rights were affected.
      To satisfy this prong, in the sentencing context, Martinez must show “a
reasonable probability that, but for the district court’s misapplication of the
Guidelines, he would have received a lesser sentence.” United States v. Pratt,
728 F.3d 463, 481 (5th Cir. 2013) (citation omitted). Although in our precedent
we have shown considerable reluctance in finding that a defendant’s
substantial rights were affected when the correct and incorrect sentencing
guideline ranges overlap, 2 United States v. Blocker, 612 F.3d 413, 416 (5th Cir.


      2 Here, Martinez’s guideline range with the § 2D1.1(b)(14)(B)(i) enhancement was 360
months to life; and without the enhancement it would be 292–365 months. See U.S.S.G.,
Ch.5, Pt. A (Sentencing Guidelines) (2012).
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                                  No. 13-41292
2010), we have allowed defendants to provide “additional evidence” that their
substantial rights were affected. See, e.g., Pratt, 728 F.3d at 482.
      That was then, this is now. The Supreme Court’s recent decision in
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), held that it was
inappropriate to require such additional evidence from defendants “in cases,
like this one, where a district court applies an incorrect range but sentences
the defendant within the correct range.” Id. at 1348. And, because “the record
is silent as to what the district court might have done had it considered the
correct Guidelines range, the court’s reliance on an incorrect range [alone] . . .
suffice[s] to show an effect on [Martinez]’s substantial rights.” Id. at 1347.
Accordingly, Martinez has “satisf[ied] his burden to show prejudice by pointing
to the application of an incorrect, higher Guidelines range and the sentence he
received thereunder,” and is “not [] required to show more.” Id. Thus, with the
third prong of the plain error standard behind us, we move on to the fourth
prong.
      The fourth prong asks whether a sentencing error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Mares, 402
F.3d at 520. This inquiry “is dependent upon the degree of the error and the
particular facts of the case.” United States v. Davis, 602 F.3d 643, 651 (5th Cir.
2010) (emphasis added). Furthermore, “we do not view the fourth prong as
automatic if the other three prongs are met,” as we have not adopted “a blanket
rule that once prejudice is found under the [third prong of plain error], the
error invariably requires correction.” United States v. Escalante-Reyes, 689
F.3d 415, 425 (5th Cir. 2012) (en banc) (citations omitted). Instead, as the
Supreme Court has repeatedly emphasized, “[t]he fourth prong is meant to be
applied on a case-specific and fact-intensive basis.” Puckett v. United States,
556 U.S. 129, 142 (2009). Put bluntly, a “per se approach to plain-error review
is flawed.” Id. (citation omitted). Thus, our decision to “remedy” any error
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                                 No. 13-41292
under the fourth prong is ultimately at our discretion. See id. at 135 (“if the
[other] three prongs [of plain error review] are satisfied, the court of appeals
has the discretion to remedy the error”).
      Accordingly, to evaluate this prong, we consider the particular facts and
degree of error in this case, and compare those factors to other cases that have
turned on the fourth prong.
      “[I]n the sentencing context” we “ha[ve] been generous with remand,
often finding that errors leading to substantial increases in sentences, even
those errors not raised until appeal . . . merited remand.” United States v.
Ellis, 564 F.3d 370, 378 (5th Cir. 2009); see also id. at 378 n.44 (providing a
“survey of cases” noting “generally permissive approach to the third and fourth
prongs . . . especially where a significantly different Guidelines range was
erroneously advised”) (citations omitted).
      For example, in United States v. Price, the correct Guideline range was
92–115 months, the district court erroneously applied a range of 110–120
months, and the defendant was sentenced to 110 months. United States v.
Price, 516 F.3d 285 (5th Cir. 2008). We found it noteworthy that “[a]though
the 110–month sentence that Price received is within [the correct] range,
defendant has demonstrated a probability sufficient to undermine confidence
in the outcome, as a 92–month sentence is substantially lower than a 110–
month sentence” id. at 289 (emphasis added) (alterations and quotation marks
omitted); and that “when acting under the erroneous Guidelines range . . . , the
court sentenced Price to the minimum within that range,” id. at 289 n. 28.
Accordingly, we held that the error in Price “‘seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings’ because it ‘clearly
affected [the] defendant’s sentence.’” Id. at 290 (citation omitted).
      Here, with the § 2D1.1(b)(14)(B)(i) enhancement, Martinez’s sentencing
range under the Guidelines was 360 months to life; and without the
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                                       No. 13-41292
enhancement it would have been 292–365 months.                         Consequently, the
difference between a sentence at the bottom of the incorrect range (360 months)
and a sentence at the bottom of the correct range (292 months) is 68 months—
far greater than that in Price (18 months). Further, like the defendant in Price,
Martinez received the minimum sentence under the incorrect range—360
months.
         Thus, it would appear that Martinez has shown that the degree of the
error he identifies on appeal is significant—a possible 68-month sentencing
disparity. A closer review of the record, however, reveals that the degree of
this error was minimized by another error by the district court. Specifically,
when determining Martinez’s criminal history category, the district court
removed two criminal history points—recommended in Martinez’s PSR
because the instant crimes occurred while he was on probation for other,
unrelated, drug charges—which reduced his criminal history category from III
to II.
         As the Government points out, this was error. See United States v. Jasso,
634 F.3d 305, 308 (5th Cir. 2011) (“The district court lacked authority to alter
Jasso’s criminal history points based on its finding that Jasso’s criminal
history overstated the seriousness of his past criminal conduct.”) (citation
omitted); United States v. Solis, 675 F.3d 795, 801 (5th Cir. 2012) (“[W]hile
U.S.S.G. § 4A1.3 affords a sentencing court discretion to determine whether a
criminal history category accurately reflects a defendant’s criminal history,
nothing in S.G. § 4A1.1 suggests that the sentencing court has any discretion
with respect to the calculation of a defendant’s criminal history score.”)
(citation omitted). 3     This error was harmless, however, in the context of


         We note that the district court could have departed from the criminal history
         3

category recommended in Martinez’s PSR, under U.S.S.G. § 4A1.3(c)(2), and would have been
required to “specify in writing . . . the specific reasons why the applicable criminal history
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                                       No. 13-41292
Martinez’s sentence because the recommended sentencing range under the
Guidelines for a criminal history category of II or III was the same for a total
offense level of 41—that which Martinez received. See U.S.S.G., Ch.5, Pt. A
(2012). But, if Martinez is resentenced at a total offense level of 39—what he
seeks on appeal—then the difference between the two sentencing ranges under
the Guidelines for a criminal history category of II and III would be 292–365
and 324–405, respectively. Id. Thus, Martinez’s “true” correct range, after the
enhancement under § 2D1.1(b)(14)(B)(i) is removed, would be 324–405 (not
292-365).
       And, this second error necessarily cuts against Martinez, as it
significantly reduces the degree of the error he identifies on appeal. 4
       Even under the “true” correct sentencing range, however, the difference
between a sentence at the bottom of the incorrect range (360 months) and a
sentence at the bottom of the “true” correct range (324 months) is still 36
months—double that in Price (18 months). Thus, considering Price, the degree
of the error Martinez identifies seems to provide a reason for us to exercise our
fourth-prong discretion.
       When assessing the fourth prong, however, we must also consider “the
particular facts of the case.” Davis, 602 F.3d at 651.
       Turning to the facts of this case, to qualify for a base offense level of 38
(the highest possible under the Guidelines), Martinez had to have been charged
with an offense involving the drug equivalent of 30,000 kg of marijuana. See
U.S.S.G. § 2D1.1(c)(1) (2012).           Here, Martinez’s base offense level was
calculated based on his involvement with the drug equivalent of 618,258.4 kg



category substantially over-represent[ed] the seriousness of [Martinez’s] criminal history or
the likelihood that [he] w[ould] commit other crimes”; but, it did not.
        4 Martinez’s current sentence (360) is in the bottom half of this range. Furthermore,

Martinez did not respond to this argument, as he did not file a reply brief before this Court.
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                                 No. 13-41292
of marijuana (approximately 45 kg of methamphetamine and 258 kg of
marijuana)—more than 20 times the minimum amount required for a base
offense level of 38. Moreover, when the instant offense occurred, Martinez was
on probation for unrelated charges stemming from his role as the driver in a
hit-and-run accident, which also resulted in the discovery of more than 50, but
less than 2,000, pounds of marijuana in the trunk of his car. And, at Martinez’s
sentencing hearing, the district court noted that: 1) Martinez’s crimes involved
crystal meth, “a terrible drug”; 2) the consequences were “going to be huge”; 3)
Martinez was going “to be in prison for a very long time”; and 4) that it was
doubtful that Martinez would ever see his family again “outside of the prison.”
      Further, we have declined to exercise our discretion to notice sentencing
errors under the fourth prong when these types of facts are involved—e.g.,
recidivistic behavior. See, e.g., Davis, 602 F.3d at 650–51 (declining to notice
error under the fourth prong because the defendant “violated his supervised
release only five months into a five-year sentence,” “was found outside the state
in which he was required to remain and was in possession of a firearm,” and
“was carrying a bank bag and printed notes that strongly suggested that he
intended to resume the same activities for which he initially had been
convicted and imprisoned”); United States v. Flores, 601 F. App’x 242, 247 (5th
Cir. 2015) (declining to notice error under the fourth prong, in part, because
the defendant “confessed to another domestic violence/assault conviction that
occurred just one year prior to the assault conviction at issue”).
      But none of these cases, nor any that we could identify, have involved
the sentencing disparity before us presently.
      Thus, to the point: while we do not speculate how the district court will
weigh these facts in determining Martinez’s sentence on remand, we cannot
ignore the disparity in the sentences that Martinez identifies on appeal. See


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                                       No. 13-41292
Price, 516 F.3d at 289–90. 5 Accordingly, we hold that the district court’s
reliance on § 2D1.1(b)(14)(B)(i), and the sentencing disparity that it caused,
was error that “seriously affects the fairness, integrity, or public reputation of
judicial proceedings”; and we exercise our discretion to notice it.
                                              IV.
       In sum, we find that the district court’s application of § 2D1.1(b)(14)(B)(i)
constitutes reversible error. 6        Consequently, the district court’s judgment
imposing a sentence of 360 months based on § 2D1.1(b)(14)(B)(i) is VACATED
and the case is REMANDED for resentencing in a manner not inconsistent
with this opinion.
                                                           VACATED and REMANDED.




       5  We note that although we rely on Price in reaching this holding, we do not “overread
Price to categorically require remand wherever a reasonable probability of a lesser sentence
is found”; rather it is the extent of the sentencing disparity and the facts in this case that
inform our decision. See Davis, 602 F.3d at 651 n.12; see also United States v. Hernandez,
690 F.3d 613, 625 (5th Cir. 2012) (“This court . . . has [] called into question a broad reading
of Price.”) (Smith, J., dissenting).
        6 Because we remand this case for resentencing, we need not address Martinez’s

second argument—that his 360-month sentence is substantively unreasonable under 18
U.S.C. § 3553(a).
        We also note that on remand, if inclined to depart from the criminal history category
recommended in Martinez’s PSR, the district court should do so under U.S.S.G. § 4A1.3 and
not by deducting criminal history points applicable otherwise.
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