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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10261
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN MARTINEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20826-FAM-1
____________________
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2 Opinion of the Court 21-10261
Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judge.
PER CURIAM:
Melvin Martinez pleaded guilty to and was convicted of car-
jacking and aiding and abetting carjacking. On appeal, Martinez,
for the first time, challenges the knowing and voluntary nature of
his guilty plea, as well as the district court’s failure to continue his
sentencing hearing sua sponte to give him time to consult new
counsel. He also asserts that his 120-month sentence is substan-
tively unreasonable. We reject each of these arguments and affirm.
I
As detailed in his factual proffer, Martinez and another indi-
vidual (K.C.) approached a Mercedes-Benz G550 at a gas station
one night in October 2019. They “each pointed firearms at the
driver,” and “demanded that [she] exit the [v]ehicle, which [she] did
in fear [for] her life.” Martinez then snatched a rather expensive
chain from the woman’s neck, and his accomplice entered the Mer-
cedes and drove away in the vehicle. A couple of hours later, police
recovered the car unoccupied, and determined that two finger-
prints on the Mercedes matched those of Martinez. The woman
later identified Martinez “as one of the men who pointed a firearm
at her at the gas station and took her necklace.” Text messages
from Martinez’s phone also revealed that he was with K.C. when
they “lost” the Mercedes, and Martinez explained “that’s why we
park em to see if [the] feds [are] already on it.”
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21-10261 Opinion of the Court 3
Martinez pleaded guilty to carjacking and aiding and abet-
ting carjacking. After accounting for an acceptance-of-responsibil-
ity adjustment, the district court determined—and the parties did
not dispute—that the advisory Guidelines range was 57 to 71
months’ imprisonment. Before his sentence was imposed, how-
ever, Martinez provided a statement. Despite his earlier represen-
tations that he was pleased with counsel, Martinez complained that
his counsel “pressured” him into signing a bad plea, and he averred
that he “really didn’t have nothing to do with this carjacking.” Fur-
ther, he claimed that he hadn’t seen his written plea until three
months after it was entered. Martinez clarified that he did not want
to withdraw his plea, but he hoped that the sentencing judge would
“take into consideration” the concerns he had raised.
The sentencing judge found that Martinez’s statements
were “inconsistent with acceptance of responsibility and a show of
remorse.” On top of that, the judge was troubled by Martinez’s
lack of appreciation for the seriousness of his offense, as well as a
string of thefts in Martinez’s past for which he hadn’t “really been
penalized.” Relying most heavily on the need to protect the public,
the sentencing judge decided to depart upward from the Guide-
lines’ recommendation—to a sentence of 120 months. He also or-
dered Martinez to pay $10,581 in restitution for the items stolen
during the carjacking, including the necklace.
Martinez’s appeal raises three issues. First, he argues that
the district court failed to comply with Rule 11. Second, he insists
that the district court should have sua sponte continued his
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4 Opinion of the Court 21-10261
sentencing hearing after he complained about his counsel’s repre-
sentation. And third, he contests the substantive reasonableness of
his sentence.
II
We turn first to his Rule 11 arguments. Martinez asserts that
the district court’s plea colloquy was deficient insofar as the
court: (1) did not determine that his plea was free from coercion,
(2) failed to apprise Martinez that he was waiving certain rights,
(3) neglected to advise him that he could be held liable for restitu-
tion, and (4) failed to determine whether Martinez understood the
nature of the charge against him. Because he “did not assert these
Rule 11 violations in the district court, our review is only for plain
error.” United States v. Puentes-Hurtado,
794 F.3d 1278, 1285
(11th Cir. 2015); see Fed. R. Crim. P. 52(b). To show plain error,
Martinez has the heavy burden of identifying an (1) error, (2) that
was obvious or clear, (3) that affected his substantial rights. Greer
v. United States,
141 S. Ct. 2090, 2096–97 (2021). Only “if the above
three prongs are satisfied” do we then have “the discretion to rem-
edy the error—discretion which ought to be exercised only if the
error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Puckett v. United States,
556 U.S. 129,
135 (2009) (alteration in original) (emphasis omitted) (quoting
United States v. Olano,
507 U.S. 725, 736 (1993)). Applying this
standard, we conclude that none of Martinez’s purported errors en-
titles him to relief.
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21-10261 Opinion of the Court 5
A
As to the first, Martinez urges that the district court failed to
ensure that his plea was “voluntary and did not result from force,
threats, or promises” beyond those contained in his plea agree-
ment. Fed. R. Crim. P. 11(b)(2). Martinez is right that the district
court did not ask whether his plea was the product of coercion. But
to demonstrate that this error affected his substantial rights, Mar-
tinez “must show a reasonable probability that, but for the error,
he would not have entered the plea.” United States v. Dominguez
Benitez,
542 U.S. 74, 83 (2004). He has not done so here.
Martinez relies primarily on his contention at the sentencing
hearing that he felt “pressured into signing a bad plea” because his
attorney advised him that he could face additional charges if he
didn’t plead guilty. But this overlooks the fact that “[a]ll pleas of
guilty are the result of some pressures or influences on the mind of
the defendant.” United States v. Buckles,
843 F.2d 469, 472 (11th
Cir. 1988) (quotation omitted). “A defendant cannot complain of
coercion where his attorney, employing [her] best professional
judgment, recommends that the defendant plead guilty.” Id.; see
United States v. Castro,
736 F.3d 1308, 1315 (11th Cir. 2013) (per
curiam). After all, plea decisions are inherently “suffused with un-
certainty.” Premo v. Moore,
562 U.S. 115, 124 (2011). In this case,
Martinez’s statement shows only that his counsel provided advice
and helped him understand the risks of choosing to plead not
guilty. He has thus failed to demonstrate that if the district court
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6 Opinion of the Court 21-10261
asked him whether his plea was the product of coercion, there is a
reasonable probability that he would’ve changed his plea.
To the contrary, Martinez thrice represented under oath his
desire to plead guilty at the initial colloquy. And he did not protest
when the district court expressed its finding that Martinez’s “guilty
plea [was] freely and voluntarily entered.” Moreover, even after
later alleging that his counsel pressured him to enter the guilty plea
at the sentencing hearing, Martinez repeatedly insisted that he did
not want to withdraw his plea. See Doc. 58 at 33 (“Your Honor,
I’m not stating this because I want to withdraw my plea.”);
id. at
34–35 (“[N]ow that it’s too late and I’m already here at sentencing,
I would like to move forward so I can get back out there to my
family.”); id. at 44 (“I never said that I wanted to move backwards
or withdraw my plea, Your Honor.”). As Martinez assured the dis-
trict court, he raised his concerns simply because he believed that
it would help him at sentencing. In light of these facts, Martinez
“ha[s] not carried the burden of showing that” any error by the dis-
trict court “affected [his] substantial rights.” Greer, 141 S. Ct. at
2097.
B
For similar reasons, Martinez fares no better on his conten-
tion that the district court neglected to inform him that he was
waiving certain rights by pleading guilty. The district court advised
Martinez of all the rights and matters specified in Rule 11, except it
did not mention his right to plead not guilty, to continue to be rep-
resented by counsel at trial, and to cross-examine adverse witnesses
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21-10261 Opinion of the Court 7
and compel the attendance of witnesses. See Fed. R. Crim. P.
11(b)(1)(B), (D), (E). As the government concedes, that was error.
Nevertheless, Martinez “offers no reason why he would not
have pled guilty if he had received more thorough instructions un-
der Rule 11.” United States v. Moriarty,
429 F.3d 1012, 1020 n.5
(11th Cir. 2005); see also United States v. Monroe,
353 F.3d 1346,
1357 (11th Cir. 2003). As explained above, Martinez repeatedly ex-
pressed his desire to persist in a guilty plea—both at the plea collo-
quy and at the sentencing hearing. At the same time, we see “noth-
ing in the record [that] indicates that, but for the district judge’s
error, [Martinez] would not have entered his guilty plea.” Mori-
arty, 429 F.3d at 1020. 1
1 Martinez identifies one instance where he equivocally said at the sentencing
hearing, “If I would have seen [the plea] in person or went over it in person,
then I would be able to probably withdraw my plea.” But Martinez admitted
that his attorney “went through” the plea agreement over the phone with him.
And the referenced statement was in no way tied to the district court’s Rule
11 errors here, which concern the waiver of rights not listed in the plea agree-
ment. Instead, Martinez expressed his concerns as to (1) the appellate waiver
contained in the plea and (2) his involvement in the carjacking. With respect
to the former, the district court went over the appellate waiver at the initial
plea hearing, and Martinez affirmed that he still wanted to plead guilty even
knowing of his limited ability to appeal. Further, because the court varied
upwards—and thereby rendered the waiver inapplicable—any potential error
is harmless. See Fed. R. Crim. P. 11(h). With respect to Martinez’s involve-
ment in the carjacking, the district court relied on Martinez’s previous sworn
admission that the facts contained in the proffer (and read at his plea hearing)
were true. As we explain below, that was permissible.
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8 Opinion of the Court 21-10261
To be sure, we have in the past permitted a defendant to
withdraw a guilty plea based on a district court’s failure to mention
some of the rights listed in Rule 11. See United States v. Hernan-
dez-Fraire,
208 F.3d 945, 951 (11th Cir. 2000). But “the defendant
in Hernandez-Fraire expressed confusion during the plea colloquy
as to the nature of his rights.” Moriarty, 429 F.3d at 1020 n.5; see
Hernandez-Faire, 208 F.3d at 951 (“I really don’t know about this
plea, because I don’t know what my rights are.”). “No such confu-
sion appeared in [Martinez]’s plea colloquy.” Moriarty, 429 F.3d at
1020 n.5. And it bears repeating that the presence of plain error
alone is not sufficient to warrant vacatur. Because Martinez has
failed to demonstrate a reasonable probability that he wouldn’t
have pleaded guilty absent the Rule 11 errors, he is not entitled to
relief. See Dominguez Benitez,
542 U.S. at 83.
C
Martinez also complains that the district court failed to ad-
vise him of its “authority to order restitution.” Fed. R. Crim. P.
11(b)(1)(K). The court explained the maximum punishments that
it could impose, including “a quarter of a million dollar fine.”
Then, after Martinez confirmed his understanding, the court asked
whether there was any “expected restitution,” to which the gov-
ernment responded “[n]ot at this time.”
Even assuming it was error for the court not to clarify that
restitution could still be ordered at sentencing, Martinez’s claim
lacks merit. As we’ve held in the past, even a wholesale failure to
warn of the possibility of restitution does not affect “a defendant’s
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21-10261 Opinion of the Court 9
substantial rights where he was warned of a potential fine larger
than the actual amount of restitution ordered.” United States v.
Morris,
286 F.3d 1291, 1294 (11th Cir. 2002). As in Morris, the res-
titution order of $10,581 here “was considerably less than the fine
[Martinez] was warned of at the time of his guilty plea.”
Id. Hence,
he cannot make the third showing necessary for plain-error relief.
D
Martinez’s final alleged Rule 11 error is that the district court
didn’t adequately explain the “nature of [the] charge” to which he
pleaded guilty. Fed. R. Crim. P. 11(b)(1)(G). He maintains that the
court never set forth the elements of carjacking or explained the
aiding-and-abetting theory of liability. We again find no reversible
error.
“There is no rigid formula or mechanical rule for determin-
ing whether the district court adequately informed the defendant
of the nature of the charges.” United States v. Presendieu,
880 F.3d
1228, 1238 (11th Cir. 2018) (quotation marks omitted). Nor does
anything in Rule 11’s text “specify that a district court must list the
elements of an offense.”
Id. “Rather, what constitutes an adequate
plea colloquy varies from case to case depending on the complexity
of the charges and the defendant’s intelligence and sophistication.”
Id.
Here, the district court was not faced with a “complex
case[],” such as one involving “esoteric terms or concepts unfamil-
iar to the lay mind.” Id. at 1239 (quotation omitted). We think that
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10 Opinion of the Court 21-10261
carjacking “is ordinarily a relatively simple charge easily under-
stood by a person” of Martinez’s intelligence. See United States v.
DePace,
120 F.3d 233, 237 (11th Cir. 1997); United States v. Diaz,
248 F.3d 1065, 1096 (11th Cir. 2001) (listing the elements of the of-
fense). At the very least, even though it would have been prefera-
ble for the district court to list the elements of the offense, it was
not plain error for it to instead rely on the factual proffer. See Pres-
endieu, 880 F.3d at 1240. The district judge first confirmed that
Martinez “want[ed] to plead guilty to Count 1 which is carjacking
and aiding and abetting carjacking.” The judge went on to say that
the prosecutor would explain “what [Martinez was] charged with,
[and] what [he was] pleading guilty to.” And the prosecutor recited
the proffer in full. That proffer stated that Martinez and K.C. ap-
proached the Mercedes and “each pointed firearms at the
driver . . . with the intent to cause death or serious bodily harm and
demanded that [she] exit the vehicle.” After the driver exited the
car “in fear [for] her life,” K.C. “entered the driver’s seat and drove
away in the vehicle.” The proffer then went on to explain that the
Mercedes “was manufactured outside the state of Florida and pre-
viously had been transported, shipped or received in interstate or
foreign commerce.” Accordingly, the factual proffer explicitly
touched on—often verbatim—all the elements necessary to sustain
the charge against Martinez. See Diaz,
248 F.3d at 1096. And Mar-
tinez confirmed that he “agree[d] with everything the prosecutor
ha[d] stated about what [he] did in this case.” We cannot say that
this colloquy resulted in plain error—that is, a “total or abject
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21-10261 Opinion of the Court 11
failure” to ensure that Martinez “underst[ood] the nature of the
charge[] against him.” Presendieu, 880 F.3d at 1239.
Similarly, “[w]hile a brief explanation of the aiding and abet-
ting theory would have been preferable, we cannot find that its
omission undermined [Martinez]’s understanding to a degree that
would invalidate the district court’s acceptance of the guilty plea.”
DePace,
120 F.3d at 238. As in DePace, “[t]he degree of complexity
added by the aiding and abetting theory is minimal” under these
facts.
Id. at 237. Martinez admitted at the plea colloquy that he
pointed a gun at the victim to help force her out of the car so that
his accomplice could drive away in the stolen vehicle. A lay person
of Martinez’s intelligence “would likely understand his liability for”
brandishing a firearm in those circumstances.
Id. It certainly
wasn’t plain error to so find—particularly not where Martinez “was
represented by counsel and had ample opportunity to express any
confusion [he] might have had.” United States v. Camacho,
233
F.3d 1308, 1317 (11th Cir. 2000). Indeed, Martinez confirmed that
he “went over everything” with his lawyer and represented that
there wasn’t anything that he didn’t understand.
Even so, Martinez protests that some of the statements that
he made at the sentencing hearing indicate that he didn’t under-
stand the concept of aiding and abetting. Yet in that same conver-
sation, Martinez also claimed that there was “no gun involved in
my case.” He does not dispute that if there were a gun, he didn’t
understand how brandishing it would amount to aiding and abet-
ting the carjacking. In essence, then, Martinez’s argument
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12 Opinion of the Court 21-10261
amounts to a simple disagreement with the district court’s finding
that he pointed a gun at the driver to help steal the Mercedes.
There is, however, a “strong presumption” that his admissions to
those very facts during the plea colloquy were true. United States
v. Medlock,
12 F.3d 185, 187 (11th Cir. 1994). And Martinez fell far
short of rebutting that presumption; the district court was entitled
to accept Martinez’s sworn admissions over his later, self-serving
repudiation of his involvement in the carjacking. See United States
v. Rogers,
848 F.2d 166, 168 (11th Cir. 1988) (per curiam). That
being the case, the district court did not plainly err in its attempt to
ensure that Martinez understood the nature of the charges against
him.
Accordingly, we see no reversible Rule 11 error.
III
Next, Martinez insists that, after he lodged complaints about
his attorney, the district court should have continued the sentenc-
ing hearing to permit him to consult new counsel. Normally, we’d
review the denial of a motion to continue sentencing for abuse of
discretion. United States v. Edouard,
485 F.3d 1324, 1350 (11th Cir.
2007). But, as Martinez acknowledges, he never moved for a con-
tinuance. “[B]ecause [he] did not raise this issue below, the plain
error standard applies.” United States v. Cingari,
952 F.3d 1301,
1305 (11th Cir. 2020); see also, e.g., United States v. Scott,
877 F.3d
42, 51 (1st Cir. 2017); United States v. Rivas-Macias,
537 F.3d 1271,
1281 (10th Cir. 2008); United States v. Carrera,
259 F.3d 818, 824
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21-10261 Opinion of the Court 13
(7th Cir. 2001); United States v. Kizzee,
150 F.3d 497, 501 (5th Cir.
1998). 2
“As we have repeatedly recognized, an error cannot meet
the ‘plain’ requirement of the plain error rule if it is not clear under
current law.” United States v. Chau,
426 F.3d 1318, 1322 (11th Cir.
2005) (per curiam) (quotation marks omitted). Martinez does not
identify any case similar to this one, where we or the Supreme
Court have found that a district court abused its discretion in refus-
ing to continue a proceeding so that the defendant could obtain
new counsel. Nor could we find any. That is fatal to Martinez’s
claim. See United States v. Leon,
841 F.3d 1187, 1196 (11th Cir.
2016) (“In this circuit, a district court’s error is not plain or obvious
if there is no precedent directly resolving the issue.” (cleaned up)).
2 Seeking to escape plain-error review, Martinez cites to our decision in United
States v. Wingo,
789 F.3d 1226, 1236 (11th Cir. 2015). But that case applied an
abuse-of-discretion standard to “a district court’s failure to sua sponte order a
hearing on the defendant’s competency under [
18 U.S.C. § 4241].”
Id. Our
application of the abuse-of-discretion standard turned on the unique circum-
stance of an allegedly incompetent defendant and the language of § 4241,
which imposes a specific “duty on the district court to inquire sua sponte into
a defendant’s mental competency.” Id. at 1236 n.10; see also id. at 1235–38.
Here, Martinez does not identify any similar reason why his claim isn’t subject
to the ordinary mandate that “unpreserved errors must be analyzed for plain
error under Rule 52(b).” Greer, 141 S. Ct. at 2099; see Puckett,
556 U.S. at
135–36. Simply put, then, the issue wasn’t “properly preserved for appeal in
order to warrant abuse-of-discretion review.” United States v. Akwuba,
7
F.4th 1299, 1316–17 (11th Cir. 2021).
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14 Opinion of the Court 21-10261
In any event, we see no abuse of discretion. The matters
Martinez complained of for the first time at sentencing—irregular-
ities with the plea agreement, counsel’s alleged deficiencies, and his
insistence that he wasn’t directly involved in the carjacking—were
all known to him well before sentencing. Thus, Martinez was not
“diligen[t] in his efforts” to bring his complaints to the court’s at-
tention, and a “continuance would have inconvenienced the court
and the opposing party.” DeJesus v. Lewis,
14 F.4th 1182, 1202
(11th Cir. 2021). In addition, Martinez expressed the opposite sen-
timents at his plea hearing, confirming under oath that he commit-
ted the acts described in the factual proffer and was pleased with
his counsel, who concededly “went over everything” together with
him. Even at sentencing, when the district judge asked Martinez
“what should I do with” the complaints he raised, Martinez never
asked for new counsel or sought a continuance. He simply asked
the judge to “please sentence me and take into consideration what
I stated,” which the judge did. Given the foregoing circumstances,
we cannot say that the district court erred in proceeding with the
sentencing hearing—let alone plainly.3
3 Martinez’s trial counsel withdrew after the sentencing hearing because of the
complaints that Martinez raised with respect to her performance. To the ex-
tent Martinez bases his claim on his counsel’s alleged deficient performance,
we decline to consider such a theory at this juncture. “The preferred means
for deciding a claim of ineffective assistance of counsel is through a
28 U.S.C.
§ 2255 motion.” United States v. Patterson,
595 F.3d 1324, 1328 (11th Cir.
2010). Martinez may pursue that potential avenue for relief in the future if he
so chooses.
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21-10261 Opinion of the Court 15
IV
Last up is Martinez’s challenge to his sentence. We review
the substantive reasonableness of a defendant’s sentence under a
“deferential abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 41 (2007). When, as here, the sentence imposed is
above that recommended by the Guidelines, we “may consider the
extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors” justify the upward de-
parture. Id. at 51. “Although there is no proportionality principle
in sentencing, a major variance does require a more significant jus-
tification than a minor one—the requirement is that the justifica-
tion be ‘sufficiently compelling to support the degree of the vari-
ance.’” United States v. Irey,
612 F.3d 1160, 1196 (11th Cir. 2010)
(en banc) (quoting Gall,
552 U.S. at 50). At the same time, we may
not substitute our own judgment for that of the district court.
United States v. Rosales-Bruno,
789 F.3d 1249, 1257 (11th Cir.
2015). The challenger can prevail only if he shows that the district
court’s sentence was entirely outside “the ballpark of permissible
outcomes.”
Id. (quotation omitted).
That’s not the case here. The district court emphasized the
“very serious” nature of Martinez’s offense, which included point-
ing a gun at someone—and thereby threatening her life—in order
to steal her car. See
18 U.S.C. § 3553(a)(1), (a)(2)(A). In addition,
the court stressed that Martinez hadn’t “really been penalized for
what [he had] done in the past.” “District courts have broad leeway
in deciding how much weight to give to prior crimes the defendant
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16 Opinion of the Court 21-10261
has committed.” Rosales-Bruno, 789 F.3d at 1261. And in this case,
Martinez had a history that included grand theft, burglary, and lar-
ceny, among other crimes. See
18 U.S.C. § 3553(a)(1). This pattern
of criminal behavior, the district court explained, helped to show
that Martinez did not appreciate the severity of his misconduct.
And one case in particular troubled the sentencing judge. There,
Martinez’s girlfriend instructed someone to park his car in a dimly
lit area so that she could perform sexual acts on him. When the
man complied, Martinez entered the car and attacked him from be-
hind. As Martinez pistol-whipped the victim, his girlfriend used the
diversion to steal the man’s phone and money. After the victim
escaped to confront Martinez’s girlfriend, Martinez took the oppor-
tunity to drive his car to the other end of the parking lot so that he
could rummage through it. When the victim returned, Martinez
“again attacked” him. Martinez was sentenced only to probation
and was ordered to pay deferred restitution. Because of the simi-
larities between that crime and the instant offense—as well as Mar-
tinez’s lack of appreciable punishment for the former—the district
court thought that a stiff sentence was needed to “protect the pub-
lic.” See
id. § 3553(a)(2)(C); United States v. Shaw,
560 F.3d 1230,
1239–40 (11th Cir. 2009). That determination was reasonable.
What’s more, the court observed that Martinez wasn’t re-
morseful and hadn’t “fully accept[ed]” responsibility for his actions,
as he contested his role in the carjacking and his possession of the
firearm at the sentencing hearing. This was despite him previously
admitting to the veracity of the factual proffer under oath. Those
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21-10261 Opinion of the Court 17
factors, too, support the district court’s upward variance. See
United States v. Kapordelis,
569 F.3d 1291, 1318 (11th Cir. 2009).
Finally, we note that “an additional sign of the upward variance’s
reasonableness” is the fact that Martinez’s sentence was a full 5
years below the statutory maximum. United States v. Riley,
995
F.3d 1272, 1280 (11th Cir. 2021); see
18 U.S.C. § 2119(1).
In the end, “[w]e are not left with the definite and firm con-
viction that the district court committed a clear error of judgment
in weighing the § 3553(a) factors by arriving at [this] sentence.”
United States v. Gibson,
708 F.3d 1256, 1283 (11th Cir. 2013) (quo-
tation marks omitted). It was within “the range of reasonable sen-
tences dictated by the facts of the case.”
Id. (quotation omitted).
Accordingly, Martinez’s sentence is due to be affirmed.
* * *
We AFFIRM both Martinez’s conviction and his sentence.
