                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2008

USA v. Martinez
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3008




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Martinez" (2008). 2008 Decisions. Paper 782.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/782


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-3008


                           UNITED STATES OF AMERICA

                                            v.

                               RAFAEL MARTINEZ, JR.,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Crim. No. 04-cr-00147-4)
                District Judge: The Honorable Joseph A. Greenaway


                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 27, 2008


                Before: SLOVITER, BARRY and ROTH, Circuit Judges

                              (Opinion Filed: July 29, 2008)


                                        OPINION




BARRY, Circuit Judge

      Rafael Martinez, Jr. appeals his sentence of 121 months’ imprisonment for

conspiring to distribute cocaine. We will affirm.
                                             I.

       Martinez was arrested on February 26, 2004 moments after he and several

associates sold approximately 3.3 kilograms of cocaine to an undercover drug

enforcement officer. Several months later, he entered into a cooperating plea agreement

with the government under which he agreed to plead guilty to one count of conspiracy to

distribute and possess with the intent to distribute more than 500 grams of cocaine,

contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), in violation of 21 U.S.C. § 846, and the

government agreed to move for a downward departure on his behalf were he to render

substantial assistance.

       Subsequent to entering his plea of guilty, but before his sentencing, Martinez was

arrested and convicted in Virginia for conspiracy to distribute and possess with the intent

to distribute 1 kilogram of cocaine. As a result of this Virginia conviction, the

presentence investigation report (“PSR”) recommended that he not receive a downward

adjustment in his offense level for acceptance of responsibility because “[h]is conduct is

not illustrative of an individual who is truly remorseful for the crimes with which he has

been charged.” Martinez’s attorney objected in two letters to the Court, arguing that

       [t]he conduct for which he was arrested in Virginia was undertaken by him
       in furtherance of [his plea] agreement. Even though the Government did
       not authorize it, he was attempting to secure the confidence of a potential
       target [named “Victor”]—one whose name and contact information he had
       shared with DEA agents.

(App. at 6) (emphasis added.)



                                             2
       Martinez’s attorney continued this argument at the sentencing hearing, and

asserted, for the first time, that phone records would support his contention that Martinez

had spoken with his DEA handlers about “Victor” in the days leading up to his arrest in

Virginia. The government disputed Martinez’s assertion that he had previously provided

it with information about “Victor,” and advised the District Court that Martinez’s

handlers had not heard from him for several months before his arrest. Given the factual

dispute and believing that Martinez was attempting to show that he had purchased the

drugs with the government’s imprimatur, the Court initially believed that the sentencing

hearing should be adjourned so that additional facts could be gathered. After it became

clear that Martinez was not claiming that his handlers had approved the purchase that led

to the Virginia conviction—he was only attempting to show that he had provided the

DEA with information about “Victor” prior to his arrest, a position the Court was “willing

to accept” – the Court concluded that an adjournment was not necessary. The Court

declined, however, to award a downward adjustment for acceptance of responsibility

given that Martinez’s claim that he told the DEA about “Victor” “doesn’t contradict the

fact that he engaged in criminal conduct.”

       With an offense level of 28 and a criminal history category of III, the District

Court calculated Martinez’s range of imprisonment to be 97 to 121 months and imposed a




                                             3
sentence of 121 months’ imprisonment, to be followed by a 5-year period of supervised

release. This timely appeal followed.1

                                             II.

       Martinez argues that: (1) the District Court erred by refusing to adjourn the

sentencing hearing so that he could gather additional evidence in support of his motion

for a downward adjustment for acceptance of responsibility; (2) the Court erred by not

granting him that downward adjustment; (3) the Court failed to give “meaningful

consideration” to the factors set forth in 18 U.S.C. § 3553(a); and (4) the sentence

imposed by the Court was not reasonable.2

A. Adjournment Request

       We have little difficulty concluding that the District Court’s decision to proceed

with sentencing as scheduled did not constitute an abuse of discretion. See Gov’t of V.I.

v. Charleswell, 115 F.3d 171, 174 (3d Cir. 1997) (stating that the decision to grant or

deny an adjournment request “is traditionally within the discretion of the trial judge who

must be given wide latitude in arranging the court’s schedule”). Because the Court


   1
    The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
   2
     Martinez also argues that his attorney’s failure to properly investigate the
circumstances surrounding his arrest and conviction in Virginia and to adequately present
the facts to the District Court at the sentencing hearing constituted ineffective assistance
of counsel. We generally do not entertain claims of ineffective assistance of counsel on
direct appeal, and will not do so now. See, e.g., United States v. Thornton, 327 F.3d 268,
271 (3d Cir. 2003) (stating that “[i]t has long been the practice of this court to defer the
issue of ineffectiveness of trial counsel to a collateral attack”).

                                             4
assumed for purposes of sentencing the only fact that Martinez sought to prove (i.e., that

he had spoken with the agents about “Victor” prior to his arrest), there was no reason that

the sentencing hearing could not move forward.

B. Sentencing Challenges

       “Booker contemplates that the district court will impose a discretionary sentence

after consideration of the [PSR], as well as the advisory Guidelines, the grounds properly

raised by counsel, the defendant’s allocution, any victim statements, and other relevant

evidence.” United States v. Gunter, 527 F.3d 282, ___ n.2 (3d Cir. 2008). To accomplish

this goal, the district court must sentence defendants using a three-step process. First, it

“must begin the process by correctly calculating the applicable Guidelines range.” United

States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008). Next, it must formally rule on any

motions for departure. Id. “Finally, after giving both sides the chance to argue for the

sentences they deem appropriate, the court must exercise its discretion by considering all

of the § 3553(a) factors and determining the appropriate sentence to impose.” Id. at 216-

17. “If we determine that the district court has committed no significant procedural error,

we then review the substantive reasonableness of the sentence under an abuse-of-

discretion standard, regardless of whether it falls within the Guidelines range.” Id. at 218.

       Martinez contends, first, that he was entitled to a lower offense level based on his

acceptance of responsibility. We review a district court’s decision to grant or deny a

defendant’s motion for a downward adjustment on this ground for clear error. United



                                              5
States v. Bennett, 161 F.3d 171, 196 (3d Cir. 1998) (stating that “the District Court’s

decision whether to grant the adjustment is entitled to ‘great deference’ on review

because ‘the sentencing judge is in a unique position to evaluate a defendant’s acceptance

of responsibility’”) (quoting USSG § 3E1.1 cmt. n.5).

       The application notes indicate that among the considerations a court should take

into account when determining whether a defendant is entitled to a downward adjustment

for acceptance of responsibility is whether the defendant has voluntarily terminated or

withdrawn from criminal conduct, USSG § 3E1.1 cmt. n.1 (2006), and that

       [e]ntry of a plea of guilty prior to the commencement of trial combined with
       truthfully admitting the conduct comprising the offense of conviction, and
       truthfully admitting or not falsely denying any additional relevant conduct
       for which he is accountable . . . will constitute significant evidence of
       acceptance of responsibility for the purposes of subsection (a). However,
       this evidence may be outweighed by conduct of the defendant that is
       inconsistent with such acceptance of responsibility. A defendant who enters
       a guilty plea is not entitled to an adjustment under this section as a matter
       of right.

Id. cmt. n.3 (emphasis added).

       The District Court denied Martinez’s motion for a downward adjustment for

acceptance of responsibility on the ground that his post-guilty plea conviction in Virginia

demonstrated that he had not fully withdrawn from criminal conduct. Although Martinez

tried to explain away his conduct as an attempt—“albeit in a foolhardy and ham-fisted

manner—to merit a downward departure for substantial cooperation” (App. at 23), it is

undisputed that he undertook this criminal activity without the approval of the



                                             6
government. Accordingly, the Court did not clearly err in denying the motion for a

downward adjustment.

       Martinez also contends that the District Court failed to give meaningful

consideration to the factors set forth in 18 U.S.C. § 3553(a) and that his sentence was

otherwise unreasonable. We disagree. In arguing for a term of imprisonment of only 60

months, a sentence far below the applicable Guidelines range of 97 to 121 months’

imprisonment, Martinez highlighted his willingness to plead guilty, that this was his first

felony conviction, that the crime was not a crime of violence, and that he had a wife and

children who relied on him for financial support. Prior to sentencing him to the top of the

recommended range, the Court stated:

               Mr. Martinez has submitted many letters from family members and
       other loved ones on his behalf, all of which paints a wonderful picture of
       him as a person.
               But that is only part of what this Court must take into account in
       arriving at an appropriate sentence. Mr. Martinez is also an accomplished
       drug dealer. He has access to and was involved in deals that were multiple
       kilograms. The [PSR] points that out. The facts of – and, of course, that’s
       relevant conduct the Court should take into account.
               When he pled guilty to – what he pled guilty to was approximately a
       three and a half kilogram deal, and what he shared at the time of the deal
       certainly talked about his ability to do large deals and the fact that he had
       done many large deals before.
               All of this certainly tells this Court that the nature and circumstances
       of the offense and history and characteristics of this particular defendant
       requires this Court to not allow the leniency that counsel has alluded to on
       his client’s behalf.
               Mr. Martinez has a large extended family, but, obviously, this Court
       must consider and take into account those who have no voice, and that is
       those who have been subject to the drugs that Mr. Martinez has brought into



                                              7
       our area. As such, it is my firm desire that this sentence take into account
       those who cannot speak for themselves.

(App. at 74-75.)

       We are more than satisfied that the District Court gave meaningful consideration to

the section 3553(a) factors and conclude that it did not abuse its discretion in sentencing

Martinez to a term of imprisonment of 121 months.

                                            III.

       For the foregoing reasons, we will affirm the judgment of sentence.




                                             8
