                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2374
                                    ___________

United States of America,                *
                                         *
              Appellee,                  *
                                         * Appeal from the United States
         v.                              * District Court for the
                                         * District of North Dakota.
Jose Reynaldo Martinez, Jr.,             *
also known as Beans,                     *
                                         *
              Appellant.                 *
                                    ___________

                               Submitted: December 8, 2008
                                  Filed: February 20, 2009
                                   ___________

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

       Jose Reynaldo Martinez appeals his 264-month sentence imposed by the district
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court following his conviction by a jury for conspiracy to possess with intent to
distribute and distribution of a substance containing methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.




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       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
      Evidence presented in the three-day trial generally showed that Martinez
conspired with others to arrange for the transfer of methamphetamine from California
to Minnesota and North Dakota and for distribution. As relevant to this appeal,
Martinez recruited Israel Flores to sell the methamphetamine in the Fargo, North
Dakota area. Flores testified at the trial that he had obtained a .40 caliber handgun
from a third individual as payment for a drug debt. According to Flores, he gave the
gun to Martinez, and in return, Martinez excused debt Flores owed for
methamphetamine. Witness Aaron Mendez, who was receiving methamphetamine
from Flores, testified that on one occasion he traveled to Willmar, Minnesota with
Flores to obtain methamphetamine from Martinez. On that trip, Mendez observed
Flores hand the .40 caliber handgun to Martinez.

       Over Martinez’s objection, the district court applied a two-level enhancement
to his base offense level under United States Sentencing Commission, Guidelines
Manual, § 2D1.1(b)(1) for possession of a firearm. The district court calculated a
Guidelines sentencing range of 292 to 365 months but imposed a below-Guidelines
sentence of 264 months imprisonment, taking into consideration Martinez’s lack of
criminal history, his ability to live a law-abiding life, and the sentences imposed on
coconspirators.

       On appeal, Martinez argues that the district court erred in applying the two-
level enhancement under section 2D1.1(b)(1) and that the sentence was substantively
unreasonable because the district court failed to consider adequately the factors set
forth in 18 U.S.C. § 3553(a) such that this court could not conduct a meaningful
review of the reasonableness of the sentence.

       “We review all sentences, whether inside or outside the Guidelines range, under
a deferential abuse of discretion standard.” United States v. Pepper, 518 F.3d 949,
951 (8th Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 597 (2007)). Our
first obligation is to ensure that the district court did not commit a significant

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procedural error. Such errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence–including an explanation for any deviation
from the Guidelines range.” Gall, 128 S. Ct. at 597. Only after we perform that
review do we address any claim of substantive unreasonableness. If the sentence is
outside the Guidelines range, either above or below, we “may consider the extent of
the deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id.

       First, Martinez challenges the calculation of his Guidelines range. Section
2D1.1(b)(1) provides that the base offense level in a drug-possession conviction be
increased by two levels “[i]f a dangerous weapon (including a firearm) was
possessed.” USSG § 2D1.1(b)(1). The commentary explains “[t]he adjustment
should be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” Id. § 2D1.1(b)(1), comment. (n.3). We
have previously held that the trade of a firearm for drugs warrants the specific offense
enhancement. See United States v. Newton, 184 F.3d 955, 958 (8th Cir. 1999)
(“[T]he acceptance of unloaded weapons in exchange for drugs satisfies the
‘connected with’ requirement of section 2D1.1(b)(1).”). We reject Martinez’s
contention that the district court clearly erred in determining that Martinez possessed
the firearm and that its possession was related to the underlying drug offense. See
United States v. Braggs, 317 F.3d 901, 904 (8th Cir. 2003) (“We review a district
court’s finding that a defendant possessed a firearm during a drug trafficking offense
for clear error.”). The district court based its determination largely on Flores’s
testimony at trial that he delivered the firearm to Martinez and that Martinez excused
a drug debt in return. This is sufficient information upon which the district court
could rely to impose the enhancement. See United States v. Quintana, 340 F.3d 700,
702 (8th Cir. 2003) (this court defers to sentencing judge’s credibility determinations).



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       Second, appellant challenges the substantive reasonableness of his sentence.
Based on his brief, however, appellant misunderstands the distinction between the
procedural requirements mandated in Gall and the question of substantive
reasonableness. Although Martinez claims a substantive reasonableness error, he
argues procedural error in his brief, specifically that the district court did not
adequately consider the section 3553(a) factors and did not express in open court the
reasons for imposing the sentence. “A failure to explain adequately the chosen
sentence can amount to a significant procedural error in the sentencing process.”
United States v. Lee, No. 07-3738, 2009 WL 48222, at *1 (8th Cir. Jan. 9, 2009)
(citing Gall, 128 S. Ct. at 597). Because Martinez did not object at sentencing to the
adequacy of the district court’s consideration of the section 3553(a) factors or
explanation of the sentence imposed, we review his objection on appeal for plain
error. See United States v. Gray, 533 F.3d 942, 945 (8th Cir. 2008).

        As a procedural matter, the sentencing transcript shows that the district court
considered the section 3553(a) factors, including the grounds presented by Martinez’s
counsel concerning Martinez’s criminal history, family circumstances, and health
issues. The court clearly identified “the only significant reason” to impose a sentence
below the Guidelines range was because Martinez “had a law-abiding life and there
is reason to believe that when he completes his sentence that he could return to being
a law-abiding person.” “The appropriateness of brevity or length, conciseness or
detail, when to write, what to say, depends upon circumstances,” and “[t]he law leaves
much, in this respect, to the judge’s own personal judgment.” Rita v. United States,
127 S. Ct. 2456, 2468 (2007). Although brief, this explanation for a 28-month
downward variance was sufficient to meet the procedural requirements of Gall.

      We affirm Martinez’s sentence.




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BRIGHT, Circuit Judge, concurring.

      I concur but write separately to comment on one point presented in the
supplemental briefs, which were requested by the court.

      Judge Shepherd’s opinion observes that our cases have held that the acceptance
of unloaded weapons for drugs can trigger the two-level sentencing enhancement of
section 2D1.1(b)(1) of the Sentencing Guidelines. Here, the district court applied the
enhancement. Slip op. at 3.

      For me, a question arises about the scope of the Supreme Court’s recent
decision in Watson v. United States, 128 S. Ct. 579 (2007), which held that a person
who sells drugs in exchange for a firearm does not “use” a firearm under 18 U.S.C.
§ 924(c)(1)(A).

      Although I recognize that this case involves a different provision, U.S.S.G. §
2D1.1(b)(1), it seems to me that Watson’s reasoning may extend beyond §
924(c)(1)(A).

       As noted, we asked for supplemental briefing on whether Watson affects the
sentencing procedure here. The parties disagree in their supplemental briefs on the
merits. But as the government correctly notes, the issue is not properly before us,
inasmuch as appellants did not raise that issue in the district court or in their opening
briefing with this court. However, I call attention to this matter, which may arise in
other cases.
                        ______________________________




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