United States v. Martinez , 383 F. App'x 363 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4184
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIELENA LEDY MARTINEZ,
Defendant - Appellant.
No. 09-4185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIELENA LEDY MARTINEZ,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Spartanburg. Henry F. Floyd, District
Judge. (7:05-cr-00253-HFF-4; 7:08-cr-00112-HFF-2)
Submitted: May 24, 2010 Decided: June 18, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Regan Alexandra Pendleton,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In February 2006, the district court sentenced
Marielena Ledy Martinez to four years of probation after she
pleaded guilty to being an accessory after the fact to
possession with intent to distribute fifty grams or more of
cocaine base, in violation of 18 U.S.C. § 3 (2006). In July
2008, Martinez pleaded guilty to conspiracy to murder a federal
law enforcement official with intent to retaliate for the
performance of official duties, in violation of 18 U.S.C.
§ 115(a)(1)(A) (2006). As a result of her arrest on the
conspiracy charge, Martinez was charged with a violation of her
probation, which she admitted. The district court sentenced
Martinez to 216 months of imprisonment for the conspiracy
conviction, plus a consecutive term of eighteen months for her
probation violation. Martinez appeals. Her attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
raising four issues but stating that there are no meritorious
issues for appeal. Martinez was informed of her right to file a
pro se supplemental brief but did not do so. We affirm in part,
vacate in part, and remand.
In the Anders brief, counsel first questions whether
the district court complied with the requirements of Federal
Rule of Criminal Procedure 11. Prior to accepting a guilty
plea, a trial court, through colloquy with the defendant, must
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inform the defendant of, and determine that she understands, the
nature of the charges to which the plea is offered, any
mandatory minimum penalty, the maximum possible penalty she
faces, and the various rights she is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b). The court also must determine
whether there is a factual basis for the plea. Id.; United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). The
purpose of the Rule 11 colloquy is to ensure that the plea of
guilt is entered into knowingly and voluntarily. See United
States v. Vonn, 535 U.S. 55, 58 (2002).
Because Martinez did not move in the district court to
withdraw her guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Martinez]
must show that an error occurred, that the error was plain, and
that the error affected [her] substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Martinez satisfies these requirements, “correction of the error
remains within our discretion, which we should not exercise
. . . unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(internal quotation marks and citation omitted). Because our
review of the transcript reveals substantial compliance with the
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requirements of Rule 11, we conclude that Martinez pleaded
guilty knowingly and voluntarily.
Counsel next questions whether the district court’s
sentence for the conspiracy conviction was reasonable. We
review a sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th
Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we
first examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
[g]uidelines range, treating the [g]uidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. This court then “‘consider[s] the substantive
reasonableness of the sentence imposed.’” United States v.
Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 552 U.S. at
51), cert. denied, 129 S. Ct. 476 (2008). If the sentence is
within the guidelines range, we apply a presumption of
reasonableness. United States v. Green, 436 F.3d 449, 457 (4th
Cir. 2006); see Rita v. United States, 551 U.S. 338, 346-59
(2007) (upholding presumption of reasonableness for
within-guidelines sentence).
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Moreover, a district court must conduct an
“individualized assessment” of the particular facts of every
sentence, whether the court imposes a sentence above, below, or
within the guidelines range. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). While “[t]his individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case at hand and
adequate to permit meaningful appellate review.” Carter, 564
F.3d at 330 (internal quotation marks and citation omitted). In
addition, “[w]here [the parties] present[] nonfrivolous reasons
for imposing a . . . sentence [outside the advisory guidelines
range,] . . . a district judge should address the party’s
arguments and explain why he has rejected those arguments.”
Carter, 564 F.3d at 328 (internal quotation marks and citation
omitted).
As long as a defendant “draw[s] arguments from § 3553
for a sentence different than the one ultimately imposed, an
aggrieved party sufficiently alerts the district court of its
responsibility to render an individualized explanation
addressing those arguments, and thus preserves its claim.”
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). When
the claim is preserved, this court reviews the claim for an
abuse of discretion. Id. at 576, 579. If the district court
abused its discretion, this court will “reverse unless . . . the
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error was harmless.” Id. at 576. Where the district court
commits error, the Government bears the burden of demonstrating
that the error was harmless. Id. at 585.
Here, Martinez preserved this issue for appellate
review as she requested a sentence below the advisory guidelines
range. The district court failed to address Martinez’s
nonfrivolous reasons for a below-guidelines sentence and to
adequately explain the chosen sentence. Furthermore, as the
Government elected not to file a brief, it has failed to carry
its burden of demonstrating that the error was harmless.
Accordingly, Martinez’s sentence is procedurally unreasonable
and must be vacated.
Counsel next questions whether the district court
erred in revoking Martinez’s probation. Appellate courts review
a district court’s decision to revoke probation for abuse of
discretion. See Burns v. United States, 287 U.S. 216, 222
(1932); United States v. Bujak, 347 F.3d 607, 609 (6th Cir.
2003); Gov’t of the Virgin Islands v. Martinez, 239 F.3d 293,
301 (3d Cir. 2001). The district court need only find a
violation of a term of probation by a preponderance of the
evidence. Bujak, 347 F.3d at 609. Here, Martinez admitted that
she violated the terms of her probation and pleaded guilty to
the new criminal conduct that formed the basis for the charged
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violation. We therefore conclude that the district court did
not abuse its discretion in revoking Martinez’s probation.
Finally, counsel questions whether the district
court’s sentence upon revocation of probation was plainly
unreasonable. Upon a finding of a probation violation, the
district court may revoke probation and resentence the defendant
to any sentence within the statutory maximum for the original
offense. 18 U.S.C. § 3565(a) (2006); United States v. Schaefer,
120 F.3d 505, 507 (4th Cir. 1997). This court “review[s]
probation revocation sentences, like supervised release
revocation sentences, to determine if they are plainly
unreasonable.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007). We first assess the sentence for unreasonableness,
“follow[ing] generally the procedural and substantive
considerations that we employ in our review of original
sentences.” United States v. Crudup, 461 F.3d 433, 438-39 (4th
Cir. 2006). However, “[t]his initial inquiry takes a more
‘deferential appellate posture concerning issues of fact and the
exercise of discretion’ than reasonableness review for
guidelines sentences.” Moulden, 478 F.3d at 656 (quoting
Crudup, 461 F.3d at 438). Only if a sentence is found
procedurally or substantively unreasonable will we “decide
whether the sentence is plainly unreasonable.” Crudup, 461 F.3d
at 438.
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Although a district court must consider the policy
statements in Chapter Seven of the sentencing guidelines along
with the statutory requirements of 18 U.S.C. § 3553(a), “‘the
court ultimately has broad discretion to revoke its previous
sentence and impose a term of imprisonment up to the statutory
maximum.’” Crudup, 461 F.3d at 439 (quoting United States v.
Lewis, 424 F.3d 239, 244 (2d Cir. 2005)) (internal quotation
marks omitted); see also Moulden, 478 F.3d at 656-57. Such a
sentence is substantively reasonable if the district court
stated a proper basis for concluding that the defendant should
receive the sentence imposed. Crudup, 461 F.3d at 440. “The
court must provide a statement of reasons for the sentence
imposed, as with the typical sentencing procedure, but this
statement ‘need not be as specific as has been required’ for
departing from a traditional guidelines range.” Moulden, 478
F.3d at 657 (quoting Crudup, 461 F.3d at 438). A sentence is
plainly unreasonable if it is clearly or obviously unreasonable.
Id. at 439. We have thoroughly reviewed the record and conclude
that the district court did not commit reversible error in
sentencing Martinez on the revocation of probation charge.
We have examined the entire record in accordance with
the requirements of Anders and have found no other meritorious
issues for appeal. We therefore affirm Martinez’s convictions,
affirm the sentence imposed after revocation of probation, and
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vacate the sentence imposed for the conspiracy conviction and
remand for resentencing. This court requires that counsel
inform Martinez, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Martinez requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Martinez. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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