United States v. Jose Martinez , 608 F. App'x 446 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1454
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose Luis Martinez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: July 21, 2015
Filed: July 31, 2015
[Unpublished]
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Before SHEPHERD, BYE, and KELLY, Circuit Judges.
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PER CURIAM.
Jose Martinez directly appeals after he pled guilty to a drug offense and the
district court1 sentenced him to a term of imprisonment within the Guidelines range
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
that was calculated in part based on a U.S.S.G. § 5K1.1 downward departure. His
counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), generally arguing that the district court abused its discretion in
sentencing Martinez, and specifically suggesting that the court procedurally erred in
calculating Martinez’s criminal-history points.
Upon careful review, we conclude that the district court committed no
procedural error, much less plain error in sentencing Martinez, and that no abuse of
discretion occurred. See United States v. Feemster, 572 F.3d 455, 461-62, 464 (8th
Cir. 2009) (en banc) (describing appellate review of sentencing decisions); see also
United States v. Phelps, 536 F.3d 862, 865 (8th Cir. 2008) (if defendant fails to timely
object to procedural sentencing error, error may only be reviewed for plain error);
United States v. Berni, 439 F.3d 990, 993 (8th Cir. 2006) (per curiam) (addressing
reasonableness of sentence involving § 5K1.1 downward departure).
Accordingly, we affirm. As for counsel’s motion to withdraw, we conclude
that allowing counsel to withdraw at this time would not be consistent with the Eighth
Circuit’s 1994 Amendment to Part V of the Plan to Implement the Criminal Justice
Act of 1964. We therefore deny counsel’s motion to withdraw as premature, without
prejudice to counsel refiling the motion upon fulfilling the duties set forth in the
Amendment.
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