09-3522-cr
USA v. Martinez

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the thirtieth day of August, two thousand and ten.

PRESENT:

          RALPH K. WINTER,
          JOSÉ A. CABRANES,
          DENNY CHIN ,
                               Circuit Judges.
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UNITED STATES OF AMERICA ,

                     Appellee,

                     -v.-                                                                  No. 09-3522-cr

MELVIN MARTINEZ ,

                     Defendant-Appellant.*
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FOR DEFENDANT-APPELLANT:                                      MARSHALL A. MINTZ , New York, NY.

FOR APPELLEE:                                                 MARK D. LANPHER, Assistant United States Attorney
                                                              (Preet Bharara, United States Attorney, on the brief, and
                                                              Katherine Polk Failla, Assistant United States Attorney, of
                                                              counsel), United States Attorney’s Office for the Southern
                                                              District of New York, New York, NY.


            *
                The Clerk of Court is directed to amend the abbreviated caption to conform to the listing of the parties stated
  above.
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        Appeal from an August 17, 2009 judgment of the United States District Court for the Southern
District of New York (Deborah A. Batts, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

        On February 1, 2005, a one count indictment was filed charging defendant-appellant Melvin
Martinez (“defendant” or “Martinez”) with conspiracy to distribute and to possess with intent to
distribute: (1) 50 grams or more of mixtures and substances containing a detectable amount of cocaine
base, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A); (2) mixtures and substances
containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C);
and (3) mixtures and substances containing a detectable amount of marijuana, in violation of 21 U.S.C.
§§ 812, 841(a)(1), and 841(b)(1)(D). On May 19, 2005, Martinez appeared before Judge Richard Owen
and pleaded guilty to these charges without the benefit of a plea agreement. Judge Owen sentenced
Martinez principally to a term of 180 months’ imprisonment, to be followed by a term of five years’
supervised release. On direct appeal, we affirmed Martinez’s conviction but remanded the case for
plenary resentencing in light of Kimbrough v. United States, 552 U.S. 85 (2007). See United States v. Lopez,
314 Fed. Appx. 334 (2d Cir. 2008) (summary order). On remand, Martinez’s case was assigned to Judge
Batts, who, on August 10, 2009, resentenced Martinez principally to 180 months’ imprisonment
followed by five years’ supervised release. Martinez filed a timely appeal. We assume the parties’
familiarity with the remaining factual and procedural history of the case.

                                                      (i)
         On appeal, Martinez argues that the District Court’s failure to authorize more than 15 hours of
investigative services by a “mitigation specialist” prior to sentencing was an abuse of discretion. The
relevant provision of the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1), provides as follows: “Counsel
for a person who is financially unable to obtain investigative, expert or other services necessary for
adequate representation may request them in an ex parte application. Upon finding, after appropriate
inquiry in an ex parte proceeding, that the services are necessary . . . the court . . . shall authorize counsel
to obtain the services.” Here, defense counsel requested the services of a mitigation specialist to assist
with the development of facts regarding Martinez’s upbringing that might be relevant to sentencing
under 18 U.S.C. § 3553(a). Specifically, defense counsel requested that this mitigation specialist be
authorized to work up to 70 hours, at a rate of $100 per hour. After allowing defense counsel the
opportunity to explain why his request was necessary, the District Court agreed to authorize a mitigation
specialist to work up to 15 hours, at a total cost of $1500. The mitigation specialist investigated and
prepared a seven-page report describing Martinez’s personal background. That report was appended to
defense counsel’s sentencing submission.

          Defense counsel subsequently requested that the District Court authorize more work by the
mitigation specialist. The District Court declined to act on the request. We review this ruling,
effectively denying the relief requested, for abuse of discretion. See United States v. Sanchez, 912 F.2d 18,
21-23 (2d Cir. 1990) (applying the “abuse of discretion” standard to a motion under Section 3006A); see
generally Sims v. Blot, 534 F.3d 117, 131-32 (2d Cir. 2008) (stating that a district court abuses its discretion
if it “‘base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence,’ or render[s] a decision that ‘cannot be located within the range of permissible decisions’”)
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(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); Zervos v. Verizon N.Y., Inc., 252 F.3d
163, 169 (2d Cir. 2001)). We find that the District Court did not abuse its discretion by declining the
request for additional services by a mitigation specialist. The 15 hours previously authorized—in
combination with Martinez’s sentencing submission and Martinez’s own opportunity to speak at
sentencing—were more than adequate to allow Martinez to put relevant characteristics about his
background and upbringing before the Court.

                                                      (ii)
          Second, Martinez argues that his sentence was both procedurally and substantively unreasonable.
We review the reasonableness of a district court’s sentencing determinations under a “deferential abuse-
of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A district court commits procedural
error when it “fails to calculate the Guidelines range (unless omission of the calculation is justified),
makes a mistake in its Guidelines calculation, [ ] treats the Guidelines as mandatory[,] . . . does not
consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact. Moreover, [it]
errs if it fails adequately to explain its chosen sentence . . . .” United States v. Cavera, 550 F.3d 180, 190
(2d Cir. 2008) (en banc). Here, there was no procedural error. The District Court properly calculated
the Guidelines range, considered the 3553(a) factors, and reviewed the arguments of the parties. It then
gave Martinez a sentence of 180 months’ imprisonment—55 months below the bottom of the applicable
range—based on those considerations.

         Martinez claims that the Court failed adequately to consider the § 3553(a) factors. To the
contrary, the Court explained that its non-Guidelines sentence was warranted by the factors in § 3553(a),
which, inter alia, permitted it to consider the April 29, 2009 Department of Justice policy statement
recommending a complete elimination of the sentencing disparity between crack cocaine and powder
cocaine.
         Martinez also argues that § 3553(a)(6), in particular, was inadequately considered because the
District Court reimposed the same sentence on Martinez on remand, while it lowered the sentence for
one of his co-defendants. Of course, the District Court was free to weigh the § 3553(a) factors
according to the individual circumstances of each defendant, and free also to weigh those factors
differently than Judge Owen had done previously. Moreover, we “presume, in the absence of record
evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the
statutory factors.” United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). On the record before us,
there is no basis to conclude that Martinez’s sentence was procedurally unreasonable.

        We may consider the substantive reasonableness of a sentence at the same time as we review the
sentence for procedural reasonableness. See, e.g., United States v. Dorvee, 2010 WL 3023799, at *7 (2d Cir.
2010); United States v. Cavera, 550 F.3d 180, 194-97 (2d Cir. 2008) (en banc). The sentence here was not
substantively unreasonable. In assessing substantive reasonableness, the Court employs an abuse of
discretion standard. Cavera, 550 F.3d at 190. A district court’s substantive determination should be set
aside only in exceptional cases where the trial court’s decision “cannot be located within the range of
permissible decisions.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (comparing substantive
unreasonableness to the “manifest injustice” and “shocks-the-conscience” standards employed in other
contexts). Martinez claims that his sentence does not sufficiently reflect the mitigating circumstances
present in his case, such as his attempts at cooperation before the initial sentencing. We reject the
contention that the District Court, which imposed a sentence more than 4.5 years below the Guidelines
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range, failed to depart from the Guidelines range enough to produce a substantively reasonable outcome
in this case.

                                                    (iii)
        Finally, we decline to reverse the judgment based on the District Court’s alleged failure to
comply with the requirements of 18 U.S.C. § 3553(c)(2), which provides that a district court imposing a
sentence outside of the applicable Guidelines range must state its reasons “with specificity in the written
order of judgment and commitment.” Here, the District Court did complete a written Statement of
Reasons (“Statement”), dated August 14, 2009, thoroughly explaining its decision to sentence Martinez
to a term of imprisonment below the Guidelines range. Upon receipt of defendant’s brief and its
notation that the defendant was unable to procure the Statement, the government promptly contacted
the District Court. The District Court, in turn, released to both the government and the defendant a
copy of its Statement of Reasons, which the government also submitted, under seal, to the Clerk’s Office
on May 26, 2010.

         Whatever the basis for this clerical error, we need not decide whether such a mistake violates
Section 3553(c)(2). In this case, the defendant was not prejudiced. First, the District Court elaborated
on its reasons for the sentence at length and in open court on the day of the sentencing, fully explaining
the basis for its departure from the Guidelines range. This adequately informed the defendant of the
basis for the sentence, allowing him to “effectively [ ] pursue an appeal asserting that the sentence [wa]s
unreasonable.” United States v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005). Second, Martinez concedes that
he received the Statement of Reasons prior to submitting his reply brief. But the reply brief does not
suggest that the contents of the Statement would have provided him with a basis for relief. Thus, we
hold that Martinez was not prejudiced by the fact that he did not receive the Statement of Reasons upon
his initial request.

                                        CONCLUSION
       We have considered each of Martinez’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court.


                                               FOR THE COURT,

                                               Catherine O’Hagan Wolfe, Clerk of Court




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