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

                                                                            FILED
                                                                           June 26, 2008
                                     No. 07-11100
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

JORGE ALBERTO MARTINEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:07-CR-3-1


Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Jorge Alberto Martinez was convicted of one count of conspiracy to
distribute 50 kilograms or more of marijuana and to possess this same type and
quantity of drugs with intent to distribute. In October 2007, the district court
sentenced him to serve 188 months in prison. Martinez appeals his sentence.
Martinez argues that his sentence is unreasonable because his prior convictions
occurred 15 years ago, because he debriefed, and because his codefendant



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11100

Sanchez got a significantly shorter sentence. He also argues that the district
court erred by not giving sufficient reasons to support the sentence.1
       Appellant was a career offender under section 4B1.1 of the guidelines by
reason of two prior adult federal felony controlled substance offense convictions.2
The guidelines address the age of such convictions by providing that the prior
sentence (exceeding one year and one month imprisonment) must either have
been imposed within fifteen years from the commencement of the instant offense
or that the defendant remained incarcerated thereunder within that fifteen year
period. Section 4A1.2(e)(1); section 4B1.2(c) (other prior sentences must have
been imposed within ten years of the commencement of the instant offense,
section 4A1.2(e)(2)).
       The count to which appellant pled guilty charged him with conspiracy with
Sanchez and others known and unknown. The PSR reflects that in July 2007
Sanchez had been convicted (whether by guilty plea or otherwise is not reflected)
of misprision of felony (18 U.S.C. § 4) (presumably in relation to the instant
offense, though it is not expressly so stated) and sentenced to 36 months’
imprisonment (the statutory maximum) and 12 months’ supervised released.
Appellant’s counsel’s unsworn and unsupported objections to the PSR and
memorandum in support, and counsel’s unsworn assertion at sentencing
(appellant declined to allocute at sentencing), state that Sanchez “had a prior


       1
        No objection whatever on this basis was made below but we assume, arguendo only,
that review is under FED. R. CRIM. P. 52(a), rather than 52(b).
       2
        One of these was for possession with intent to distribute more than 50, but less than
100, kilograms of marijuana in the Western District of Louisiana in February 1990, for which
the defendant was convicted and sentenced in May 1991, to 57 months’ imprisonment (followed
by supervised release); he remained in prison under this sentence until January 1995 (the
sentence on this offense was made concurrent with the below referenced January 1991
sentence). The other prior federal controlled substance felony offense conviction was for
conspiracy to possess with intent to distribute more than 100 kilograms of marijuana in June
1990 in the Southern District of Texas, for which he was convicted and sentenced in January
1991 to 63 months’ imprisonment (followed by supervised release); he remained in prison
under this sentence until January 1995. These offenses were committed when defendant was
aged 23 and 24 respectively.

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                                       No. 07-11100

conviction,” but there is no indication what offense (or type of offense) that
conviction was or when it occurred, and there is nothing to indicate that Sanchez
had more than one prior conviction.3 The PSR indicates that the underlying
transaction referenced in the instant indictment was a December 2006 sale by
appellant to a confidential informant (whom appellant knew when they had been
in prison together) of some 65 kilograms (144 pounds) of marijuana at $325 a
pound. The sale was arranged in numerous telephone conversations between
appellant and the informant. The marijuana, which appellant apparently had
in his possession in Laredo, Texas, was to be shipped by commercial carrier to
Abilene, Texas, where the confidential informant was; Sanchez was hired by
appellant for $4,000 to collect the purchase money from the informant when he
took the latter to the shipping company when the marijuana arrived there.
Appellant told the informant Sanchez would take him to the marijuana and he
was to give the money to Sanchez; Sanchez told the informant he had personally
packed the marijuana and weighed it.
       No evidence was introduced at sentencing.4
       At sentencing, appellant’s counsel stated “we’re not asking for him to get
anything close to what Mr. Sanchez did get, but we’re asking . . . I think it’s 72
months . . . anywhere between 72 and 82 . . .”. The court responded, stating:
       “All right, sir. If you’re asking for a downward variance or a
       downward departure, that request is denied.
       The Court will adopt as the Court’s findings those matters set forth
       in the presentence report, not only as it relates to the background


       3
        Appellant’s new counsel on appeal states in his brief, without citation to the record,
that “both defendants,” referring to appellant and Sanchez, “had prior drug related
convictions,” but nothing in the record suggests that Sanchez had more than one prior
conviction or that it was drug related. The mentioned appellate brief also states that “[b]oth
defendants,” appellant and Sanchez, “pled guilty to count one of the indictment . . .”. There
is nothing in the record to support the assertion that Sanchez pled guilty to any count of the
instant indictment.
       4
        There is no showing as to the relative helpfulness or forthcoming nature of any
“debriefing” by Sanchez or appellant.

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                                   No. 07-11100

      data and information, but also the analysis made under the
      sentencing guidelines.”5

      The court then sentenced appellant to 188 months’ imprisonment, stating
“I believe this sentence does adequately address the sentencing objectives of
punishment and deterrence.” The court also granted appellant’s request that it
recommend FCI Three Rivers as the place of confinement. In its written
statement of reasons the court states: “This sentence will accomplish sentencing
objectives of punishment and deterrence pursuant to 18 U.S.C . §§ 3553 and
3661.”
      The instant record does not suffice to support a finding that appellant’s
188 month sentence constitutes, in light of Sanchez’s 36 month sentence, an
“unwarranted sentence disparit[y] among defendants with similar records who
have been found guilty of similar conduct” within the meaning of 18 U.S.C. §
3553(a)(6); nor does the record reflect any abuse of discretion on the part of the
district court, or any reason particularly applicable to this appellant or this
offense why a sentence consistent with the career offender provisions of the
advisory guidelines would be unreasonable or otherwise improper.
      Our review of the record shows no error in connection with Martinez’s
sentence. The district court committed no procedural error at sentencing, and
the sentence imposed is substantively reasonable. See Gall v. United States, 128
S. Ct. 586, 594 (2007). The judgment of the district court is
                                   AFFIRMED.




      5
        The PSR reflects that the advisory guideline range was 151 to 188 months. This
calculation has not been challenged here or below and is plainly correct.

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