     Case: 09-41157     Document: 00511209974          Page: 1    Date Filed: 08/20/2010




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

                                                  FILED
                                                                           August 20, 2010
                                     No. 09-41157
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARTIR ADIEL MARTINEZ-GAMES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1314-3


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Martir Adiel Martinez-Games appeals the sentence imposed following his
jury trial conviction for illegal reentry following deportation in violation of 8
U.S.C. § 1326(a). He argues that the district court plainly erred 1 in sentencing




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
         Martinez-Games argues that he should not be faulted for failing to object to the
upward variance because his counsel was “dumbstruck” by the variance. While we conclude
that plain error review is appropriate here, we note that this case does not turn on the
standard of review.
   Case: 09-41157    Document: 00511209974 Page: 2          Date Filed: 08/20/2010
                                 No. 09-41157

him above the recommended guidelines range.2 Specifically, he argues that the
district court failed to give him adequate notice of its intent to impose an above-
guidelines sentence and that his sentence was unreasonable because it was
based upon conduct that he was acquitted of by the jury. He also argues that his
sentence is unreasonable because it failed to take into account that his offense
was not serious, that his offense was not violent, that he was not a danger to
humanity, and that a harsher sentence would not stem the tide of illegal aliens
coming into this country. He additionally contends that the district court did not
state sufficient reasons to justify the above-guidelines sentence because it did
not identify what relevant conduct was the basis for the higher sentence.
      Because Martinez-Games appellate arguments are raised for the first time
before this court, our review is for plain error. See United States v. Lopez-
Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain
error, Martinez-Games must show a forfeited error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009). If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      Martinez-Games’s arguments that the district court erred by failing to give
advance warning of its intent to impose a non-Guidelines sentence and in
considering conduct of which he was acquitted by the jury are without merit.
See Irizarry v. United States, 553 U.S. 708, 128 S. Ct. 2198, 2202-04 (2008)(the
notice requirements of Federal Rule of Criminal Procedure 32(h) do not apply to
variances); United States v. Watts, 519 U.S. 148, 157 (1997)(acquittal does not
preclude a finding by a preponderance of the evidence in sentencing proceeding



      2
         The guidelines range was 0-6 months. Martinez-Games received a sentence of 24
months in prison followed by a period of supervised release.

                                          2
   Case: 09-41157   Document: 00511209974 Page: 3        Date Filed: 08/20/2010
                                No. 09-41157

that conduct was committed); United States v. Mejia-Huerta, 480 F.3d 713, 722
(5th Cir. 2007)(variances, as opposed to guidelines departures, are not subject
to the notice requirements of Rule 32(h)).        Moreover, the district court
articulated sufficient reasons for the sentence and thus did not commit clear or
obvious procedural error in sentencing Martinez-Games. See United States v.
Key, 599 F.3d 469, 474 (5th Cir. 2010).       The district court noted that it
remembered the trial, which, as summarized by the presentence report (PSR),
included the testimony of several witnesses that identified Martinez-Games as
a person involved in a human smuggling organization that was keeping
undocumented aliens at a safe house in Laredo, Texas. In addition, the district
court noted the undisputed post-trial admissions made by Martinez-Games to
the probation officer that he was involved in the organization. Finally, the
district court stated that the upward variance was based upon its review of the
18 U.S.C. § 3553(a) factors and it specifically cited the factors of promoting
respect for the law and deterring future criminal conduct.
      Although the district court’s variance is significant, we have affirmed
substantial variances and departures in other cases based upon the specific facts
of those cases. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.
2008)(variance from guideline maximum of 51 months to a sentence of 180
months); United States v. Smith, 440 F.3d 704, 706, 708 n.5, 709-10 (5th Cir.
2006)(variance from 27 months to 60 months); United States v. Saldana, 427
F.3d 298, 312 (5th Cir. 2005)(variance to a sentence that was “quadruple” the
maximum under the guidelines); United States v. Rosogie, 21 F.3d 632, 633-34
(5th Cir. 1994)(variance of 400% from guideline maximum). Accordingly, the
district court’s judgment is AFFIRMED.




                                       3
