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

                                                                  FILED
                                                                 June 18, 2008
                                No. 05-40393
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DANIEL VALLES MARTINEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                          USDC No. 1:04-CR-73-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Daniel Valles Martinez appeals from his jury-trial
conviction for conspiracy to possess with intent to distribute 500 grams or more
of methamphetamine. Martinez has filed (1) a pro se motion to relieve his
appointed counsel and proceed pro se and (2) a pro se motion to appoint
substitute counsel, or in the alternative, proceed pro se. Those pro se motions
are denied because Martinez has failed to make a sufficient showing under
Section 5(b) of the Fifth Circuit Plan under the Criminal Justice Act and because

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 05-40393

they are untimely. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.
1998). Martinez’s counsel’s motion for leave to file a supplemental argument
brief which supersedes in whole his original argument brief is granted.
      Martinez asserts that the application of United States v. Booker, 543 U.S.
220 (2005), to his sentence violated the Sixth Amendment and ex post facto
principles because he committed the instant offense prior to the issuance of
Booker. That assertion is foreclosed by Booker, 543 U.S. at 268, and by our
holding in United States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005).
      Martinez contends that the district court erred by attributing an
additional 2.05 kilograms of methamphetamine to him as relevant conduct when
the jury specifically held that he was responsible for only 907.2 grams of
methamphetamine. The record indicates that the trial testimony regarding the
additional 2.05 kilograms of methamphetamine was not offered as part of the
conspiracy charge, and the jury was therefore not able to make a finding as to
that additional amount. Martinez’s argument that the district court erred in
finding by a preponderance of the evidence that the additional 2.05 kilograms
of methamphetamine was attributable to him as relevant conduct is foreclosed
by our holding in United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Martinez has failed to provide support for his insistence that the trial testimony
regarding the additional 2.05 kilograms of methamphetamine lacked sufficient
indicia of reliability. See United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.
1990).
      Martinez advances that he was denied the opportunity for allocution at
sentencing, conceding, however, that his failure to object on this basis in district
court warrants only plain-error review. See United States v. Olano, 507 U.S.
725, 731-36 (1993). Our examination of the sentencing transcript reveals that
Martinez was denied his right to allocution, as required by Rule 32(i)(4)(A)(ii) of
the Federal Rules of Criminal Procedure. See United States v. Echegollen-
Barrueta, 195 F.3d 786, 789 (5th Cir. 1999). And, as Martinez was sentenced to

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                                 No. 05-40393

the middle of the applicable guidelines range, we presume that his substantial
rights were affected by this error. United States v. Magwood, 445 F.3d 826, 829
(5th Cir. 2006). Martinez has failed, however, to meet his burden of showing
“some objective basis that would have moved the trial court to grant a lower
sentence.” Id. at 830 (internal quotation marks and citation omitted). Moreover,
a thorough review of the record, as required by United States v. Reyna, 358 F.3d
344, 353 (5th Cir. 2004) (en banc), indicates that, based on the facts of this
particular case, we should not exercise our discretion to correct this error. See
Olano, 507 U.S. at 735-36.
      Accordingly, the district court’s judgment is affirmed.
    PRO SE MOTION TO RELIEVE APPOINTED COUNSEL AND
PROCEED PRO SE DENIED; PRO SE MOTION TO APPOINT SUBSTITUTE
COUNSEL, OR IN THE ALTERNATIVE, PROCEED PRO SE DENIED;
MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; AFFIRMED.




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