United States v. Erick Martinez , 650 F.3d 667 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3028
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E RICK M ARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 621-5—Amy J. St. Eve, Judge.
A RGUED F EBRUARY 23, 2011—D ECIDED JUNE 16, 2011
Before K ANNE, W OOD , and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Erick Martinez was affiliated
with the Latin Kings street gang throughout an extended
period of his youth. During his time with the gang, Marti-
nez sold crack cocaine in the Humboldt Park area of
Chicago, activity that led to an arrest for crack distribu-
tion and drug conspiracy. In 2003, Martinez pled guilty
to the conspiracy charge pursuant to a plea agreement.
Rather than present himself for sentencing as planned,
2 No. 10-3028
however, Martinez fled. Police caught up with him in
2008, and he again pled guilty—this time to the drug
conspiracy and crack distribution charges. He was ulti-
mately sentenced to 240 months’ incarceration. Martinez
now challenges his sentence, claiming that the obstruc-
tion of justice adjustment he received was improper
and that his term of incarceration is “just too much.”
Because the obstruction adjustment was appropriate
and the district court’s sentence was reasonable, we
affirm Martinez’s sentence.
I. B ACKGROUND
In 1998, Martinez joined the West Town Chapter of
the Latin Kings street gang, an affiliation that would
last until at least 2001. As part of his membership with
the Chapter, Martinez became associated with an inter-
esting cast of characters. Among this cast of malcontents
were Leonard Clark, who was the leader (or “Inca”)
of the Chapter, and Juan Cruz, who was Clark’s chief
lieutenant (or “Cacicque”). Also present were a number
of disreputables who seemingly occupied the low- to mid-
level ranks of the Chapter.1
1
These members (and ultimately co-conspirators) included
Ottis Little, Angel Serrano, David Saez, Jonathan Enriquez, and
Jose Olaquez. Possibly inspired by the cast of villains from
Dick Tracy, these members were known to friend and foe by
their nicknames, specifically “Candyman,” “Rabbit,” “Bones,”
“Babyfat,” and “Green Eyes.”
No. 10-3028 3
Like any other enterprise, the Chapter needed funds
to maintain itself, and it often utilized rank members
like Martinez to make money via the crack cocaine
trade. To facilitate crack distribution, the Chapter held
meetings, where the payment of dues, the sale of drugs,
and the gang’s security operations were coordinated.
Throughout his time with the Chapter, Martinez at-
tended gang meetings, paid his dues (literally), and sold
crack throughout the gang’s area of dominance. On at
least two occasions, Martinez returned some of the pro-
ceeds from his crack sales back to the Chapter. The
various monies handed over to the Chapter by its
members helped to fund something of a social program,
subsidizing gun purchases, bonds for jailed gang mem-
bers, gang security, presumably escalating funeral
costs, and the like.
Unfortunately for Martinez, one of his many drug sales
was to a cooperating witness of the FBI. In June 2003,
Martinez and other Chapter members (the “Inca” and
the “Cacicque,” along with “Candyman,” “Babyfat,” and
others with similarly creative street names) were
arrested and charged with distribution of crack cocaine
and drug conspiracy. By November 2003, Martinez could
tell which way the wind was blowing and decided to
cut his losses. To that end, he pled guilty to the con-
spiracy count of the indictment pursuant to a written
plea agreement, promising to cooperate with the gov-
ernment in the process. Some other members of
the Chapter that were charged in the indictment
followed suit.
4 No. 10-3028
While Martinez initially cooperated with the govern-
ment, his participation soon became fraught with prob-
lems. In early 2004, Martinez’s attendance at trial pre-
paration began to wane. By May 2004, Martinez was
absent from the scene, having failed to show up for his
sentencing hearing. After four years on the lam, Martinez
was re-arrested in July 2008. In March 2010, he pled
guilty to drug distribution and conspiracy, this time
without a plea agreement.
Martinez’s sentencing hearing occurred on August 19,
2010. At the hearing, Martinez agreed that his base
offense level was properly calculated at 36, and that a two-
level upward adjustment for gun possession was appro-
priate. In two steps that essentially cancelled each other
out, the district court applied both a two-level upward
adjustment to Martinez’s offense level for obstruction
of justice (over Martinez’s objection) and a two-level
downward adjustment for acceptance of responsibility
(over the government’s objection). Based on two 2002
driving-while-suspended convictions, the district court
went on to conclude that Martinez should be placed
in criminal history category II; that category—coupled
with his offense level of 38—yielded an advisory range
of 262 to 327 months’ incarceration. After hearing both
sides’ arguments regarding the § 3553(a) factors, the
district court departed downward from the advisory
guidelines range and sentenced Martinez to a term of
240 months’ incarceration.
Martinez timely appealed his sentence.
No. 10-3028 5
II. D ISCUSSION
Properly distilled, Martinez’s challenge rests on two
grounds. He claims that the district court erroneously
applied an obstruction of justice adjustment to his
offense level and that his sentence was generally unrea-
sonable. We will review each claim in turn.
A. Obstruction of Justice Adjustment
Martinez begins by contesting the sentencing adjust-
ment he received for obstruction of justice. The govern-
ment argued for the adjustment at Martinez’s recent
sentencing hearing because he failed to present himself
for his initial sentencing hearing, instead absconding for
several years. Martinez responded that his flight was
motivated by fear of his former gang associates, who
he claimed had made threats to retaliate against him in
prison, and not by any abstract desire to frustrate jus-
tice. As such, Martinez argued that he did not “willfully”
obstruct justice, as required for application of the ad-
justment. The district court agreed that Martinez was
motivated by fear, but found that he still acted willfully
within the meaning of the adjustment because he volun-
tarily and intentionally failed to appear at his sentencing.
On appeal, Martinez challenges the district court’s inter-
pretation of the willfulness requirement, an issue that
we review de novo. United States v. Taylor, 272 F.3d 980,
982 (7th Cir. 2001).
Section 3C1.1 of the Sentencing Guidelines pro-
vides for a two-level upward adjustment if a defendant
6 No. 10-3028
“willfully obstruct[s] or impede[s] . . . the administration of
justice with respect to . . . sentencing of the instant
offense of conviction.” U.S.S.G. § 3C1.1. The section’s
application notes go on to list numerous types of con-
duct that qualify as obstructive and to which the adjust-
ment is intended to apply. U.S.S.G. § 3C1.1 cmt. n. 3 & 4.
Specifically, the notes make clear that “willfully failing
to appear, as ordered, for a judicial proceeding” is “con-
duct to which [the obstruction] adjustment applies.”
U.S.S.G. § 3C1.1 cmt. n. 4(e).
For better or worse, see United States v. Gage, 183 F.3d
711, 717-19 (7th Cir. 1999) (Posner, C.J., concurring), we
have interpreted § 3C1.1’s use of the word “willfully” to
require a specific intent to obstruct justice. United States
v. Nurek, 578 F.3d 618, 623 (7th Cir. 2009); United States
v. McGiffen, 267 F.3d 581, 591 (7th Cir. 2001). In light of
the language used in the application notes, however,
we have also held that engaging in the conduct listed in
the notes (with that conduct’s requisite intent) is often
sufficient—on its own—to permit imposition of the ad-
justment. See, e.g., United States v. Freitag, 230 F.3d
1019, 1026 (7th Cir. 2000) (“[A]ll that is required to
impose the obstruction of justice enhancement on
perjury grounds is that the court make a finding that
encompasses the factual predicates for a finding of per-
jury.” (citing United States v. Dunnigan, 507 U.S. 87, 95
(1993)); United States v. Cotts, 14 F.3d 300, 307-08 (7th
Cir. 1994) (adjustment properly applied so long as the
defendant intentionally engaged in the conduct listed in
note 4(I) of § 3C1.1). For failure to appear cases, we
have concluded that the adjustment is triggered if the
defendant knew that he had to appear in court and volun-
No. 10-3028 7
tarily and intentionally failed to do so. See, e.g., United
States v. Curb, 626 F.3d 921, 928-29 (7th Cir. 2010); United
States v. Bolden, 279 F.3d 498, 502 (7th Cir. 2002).
Martinez seizes on these requirements, arguing that
his failure to appear was neither intentional nor volun-
tary. He first claims that—because he based his decision
to abscond on fear—he could not have behaved inten-
tionally and the adjustment could not be applied.
This argument misapprehends the intent necessary
to trigger the adjustment and flies in the face of our
controlling precedent. As we held in Curb, a defendant’s
personal motivations for not showing up for sentencing
are generally irrelevant to the intent question; rather, it
is enough for intent’s sake that the defendant made a
conscious decision—regardless of the reason—not to
appear, thereby deterring the administration of justice.2
See Curb, 626 F.3d at 929 (defendant’s decision not
to appear was intentional conduct deserving of the ad-
justment even if motivated by “fear” or “any other emo-
tion”). Martinez neither disputes Curb’s reasoning nor
2
A number of our sister circuits have held similarly. See, e.g.,
United States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001)
(holding that the sentencing court “erred in failing to enhance
[the defendant’s] offense level” even if the defendant fled
from sentencing because he was “scared”); United States v.
Aponte, 31 F.3d 86, 88 (2d Cir. 1994) (“It is sufficient . . . that the
defendant intended to fail to appear at a judicial proceeding,
regardless of his reason for desiring to flee.”); United States
v. Taylor, 997 F.2d 1551, 1560 (D.C. Cir. 1993) (observing that
the defendant met the mens rea requirement of the adjust-
ment even if he “fled out of fear”).
8 No. 10-3028
draws a meaningful distinction between the facts here
and the facts in Curb. As such, because Martinez was
aware of his sentencing and deliberately decided not to
attend, Curb dictates our holding that he possessed the
intent necessary to apply the adjustment.
Martinez goes on to argue that the threats made him
against him rose to the level of duress, thus rendering
his flight involuntary. We need not decide in this case
whether the defense of duress applies to an obstruction
of justice adjustment, however, as Martinez has not
made out the elements of duress. For duress to apply,
a defendant must establish that he “reasonably feared
immediate death or serious bodily harm unless [he]
committed the offense” and that “there was no rea-
sonable opportunity to refuse to commit the offense
and avoid the threatened injury.” See United States v.
Sawyer, 558 F.3d 705, 711 (7th Cir. 2009). Martinez did not
flesh out either requirement below, and he does not
present a developed analysis of those requirements in
his brief on appeal. Moreover, even if he had, we are
hard pressed to imagine an argument that could have
been successful on the facts of this case. Martinez
fled for several years, and the notion that he lacked
a reasonable opportunity to cease his obstructionist be-
havior and work to secure safer incarceration conditions
is a tough pill to swallow. We thus reject his voluntari-
ness challenge to the obstruction of justice adjustment.3
3
At oral argument, Martinez also maintained that his border-
line intellectual functioning and poor decision-making abil-
(continued...)
No. 10-3028 9
B. The Reasonableness of Martinez’s Sentence
Martinez’s remaining arguments concern the overall
reasonableness of his 240-month, below-guidelines sen-
tence. Our review of the reasonableness of a sentence
proceeds in two steps. United States v. Brown, 610 F.3d
395, 397 (7th Cir. 2010). First, we must ensure that the
district court committed no significant procedural errors,
such as treating the guidelines as mandatory, failing to
calculate the guidelines range, or failing to provide a
meaningful assessment of the 18 U.S.C. § 3553(a) factors.
Gall v. United States, 552 U.S. 38, 51 (2007). Second, so
long as the procedures employed were sound, we assess
the substantive reasonableness of the sentence in light
of the statutory factors laid out in § 3553(a). Id. We
review the substantive reasonableness of a sentence
imposed for an abuse of discretion, mindful that a below-
guidelines sentence enjoys a presumption of reasonable-
ness on appeal when it is challenged by a defendant for
being too long. United States v. Shamah, 624 F.3d 449, 460
(7th Cir. 2010); United States v. Jackson, 598 F.3d 340, 345
(7th Cir. 2010).
Martinez first complains, somewhat obliquely, that the
district court committed procedural error when it “paid
3
(...continued)
ities vitiated his willfulness, meaning that the obstruction
adjustment could not be applied. This argument was not
raised in his opening brief, and it is therefore waived. United
States v. Haynes, 582 F.3d 686, 704 (7th Cir. 2009); United States
v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007).
10 No. 10-3028
mere lip service to the § 3553(a) factors” and failed to
“articulate any reason why Martinez’s factors in mitiga-
tion were ignored.” The record belies this claim. The
sentencing transcript shows that the district court pro-
vided explicit, reasoned explanations for accepting or
rejecting nearly all of Martinez’s arguments and im-
posed a sentence meaningfully linked to the § 3553(a)
factors, and that is generally enough. See United States
v. Ashqar, 582 F.3d 819, 826-27 (7th Cir. 2009); United
States v. Tahzib, 513 F.3d 692, 69 5 (7th Cir. 2008).
To be sure, the district court must address “all of a
defendant’s principal arguments that ‘are not so weak as
to not merit discussion.’ ” United States v. Villegas-Miranda,
579 F.3d 798, 801 (7th Cir. 2009) (quoting United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). The key
word, however, is principal—non-principal arguments
can be considered and rejected by the district court
without explicit discussion. See, e.g., United States v.
Moreno-Padilla, 602 F.3d 802, 811 (7th Cir. 2010) (noting
that there is “no requirement that a district court exten-
sively address non-principal arguments”); Ashqar, 582
F.3d at 826 (district court need not “state why it
rejects every argument offered by the defendant”);
United States v. Martinez, 520 F.3d 749, 753 (7th Cir. 2008)
(non-substantial arguments can be considered without
comment). The only arguments Martinez identified in
his brief that were not explicitly addressed by the
district court related to his “school difficult[ies]” and
“academic progress.” Those two arguments, however,
were not Martinez’s principal arguments for mitigation;
they were mentioned in a scattershot fashion alongside
No. 10-3028 11
a number of arguments related to his background at
sentencing, and they received a very cursory treatment
in his brief on appeal. As such, the district court did not
err in rejecting those arguments without discussion.
Left without a procedural leg to stand on, Martinez
goes on to attack the general reasonableness of his below-
guidelines sentence. He first argues that his calculated
criminal history category (of two) overstated the serious-
ness of his prior bad acts and that—pursuant to the
policy of U.S.S.G. § 4A1.3—a lower sentence was appro-
priate. The district court considered this argument, recog-
nizing that it could reduce Martinez’s sentence if his
prior convictions were minor and his general criminal
history showed a low risk of recidivism. The district
court, however, saw Martinez’s criminal history in a
different light than he did. The court concluded that
Martinez’s two convictions for driving with a suspended
license were not “minor” crimes warranting a departure,
as the concurrent sentences imposed suggested some
severity. The court also determined that Martinez’s
criminal history did not demonstrate a lack of recidivist
tendencies, given that he was arrested on his prior
charges while being investigated for other crimes. De-
spite Martinez’s claims to the contrary, the district
court’s conclusions regarding his criminal history were
within its discretion, and we accordingly find no merit
to this argument. See United States v. Nicksion, 628 F.3d
368, 378 (7th Cir. 2010); United States v. Turner, 569 F.3d
637, 643 (7th Cir. 2009).
Martinez next argues that his sentence is unreasonable
in light of § 3553(a)(6), which requires sentencing courts
12 No. 10-3028
to avoid unwarranted sentence disparities among de-
fendants with similar records. This argument is merit-
less. Martinez uses the same comparators for a lower
sentence before us that he used before the district
court: the relatively low sentences of some of his gang
associates (specifically “Babyfat” and “Green Eyes”). As
the district court noted, those defendants’ circumstances
were not similar to his, as their sentences were based
in part on their cooperation with the government.
Martinez did not cooperate with the government; he
fled from it. As such, the district court was within its
discretion to conclude that there was no unwarranted
disparity between Martinez’s sentence and the sen-
tences he identified, and thus no basis for a downward
variance under § 3553(a)(6). See United States v. Favara,
615 F.3d 824, 830-31 (7th Cir. 2010); United States v.
Statham, 581 F.3d 548, 556 (7th Cir. 2009).
Martinez finally claims that his sentence is excessive
in light of the disparity between sentences for defendants
who distribute crack cocaine and those who distribute
powder cocaine. The district court acknowledged this
claim and sentenced him below the advisory guidelines
range based upon it, so his argument on appeal boils
down to an assertion that the district court’s downward
variance was just not enough. This argument blithely
ignores two crucial concepts, namely that our review of
the reasonableness of a sentence is deferential and that
the district court’s discretion to craft a sentence in
keeping with the § 3553(a) factors is considerable.
United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008).
Especially in light of the presumption of reasonableness
No. 10-3028 13
afforded a below-guidelines sentence on appeal, merely
claiming that a reduction is “just not enough” is—
put succinctly—just not enough. See United States v.
Whited, 539 F.3d 693, 699 (7th Cir. 2008); United States
v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008). Under an
abuse of discretion review, Martinez’s sentence was
reasonable.
III. C ONCLUSION
For the aforementioned reasons, we A FFIRM Martinez’s
sentence.
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