United States v. Alexander Martinez ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                       No. 99-4090
    ALEXANDER MARTINEZ,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of South Carolina, at Charleston.
    David C. Norton, District Judge.
    (CR-95-568)
    Submitted: September 28, 1999
    Decided: November 9, 1999
    Before WIDENER, WILLIAMS, and KING, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Neil M. Schuster, Miami Beach, Florida, for Appellant. J. Rene Josey,
    United States Attorney, Miller W. Shealy, Jr., Assistant United States
    Attorney, Charleston, South Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Alexander Martinez appeals the 108-month sentence he received
    after he pled guilty to conspiracy to possess with intent to distribute
    and distribute cocaine. See 21 U.S.C.A.§ 846 (West Supp. 1999). He
    disputes the district court's finding that he had an aggravating role in
    the offense, which resulted in a two-level adjustment under U.S. Sen-
    tencing Guidelines Manual § 3B1.1(c) (1995).* Alternatively, he con-
    tends that the district court departed upward without giving him
    adequate notice. We affirm.
    Martinez agreed to buy forty kilograms of cocaine from a drug task
    force undercover agent and a Colombian informant, and suggested
    that he take delivery in Charleston, South Carolina, where he had a
    customer. Martinez and co-defendant Oliver Landaetta arrived in
    Charleston a few days later and were met at the airport by co-
    defendant Wendell Green. Martinez then called the informant and
    asked for more time to collect the money he needed. Later that day
    he and Landaetta came to the motel where the deal was to take place
    for further negotiations. The agent and the informant agreed to wait
    a bit longer. The next day, Martinez came to the motel alone with
    $66,000 in two plastic bags. Landaetta and another man (presumably
    Green) were to bring the rest of the money shortly. Martinez was then
    arrested. Landaetta and Green, who were driving around in the vicin-
    ity of the motel, were apprehended after a high-speed chase. Green
    had $17,350 in a plastic bag.
    Martinez contends that the district court either clearly erred by bas-
    _________________________________________________________________
    *Martinez was sentenced in 1996. No appeal was noted. In 1998, he
    moved to vacate his sentence pursuant to 28 U.S.C.A.§ 2255 (West
    Supp. 1999), alleging that he had asked his attorney to appeal. At an evi-
    dentiary hearing, the government stipulated that§ 2255 relief was appro-
    priate to allow Martinez to appeal the role adjustment. Martinez agreed
    to forego a criminal history issue and any further claims against his attor-
    ney. The district court then re-entered the judgment, see United States v.
    Peak, 
    992 F.2d 39
    , 42 (4th Cir. 1993), and Martinez filed this timely
    appeal.
    2
    ing the adjustment on a finding that he managed"the property, assets,
    or activities" of the conspiracy, or departed without giving him proper
    notice. See United States v. Withers, 
    100 F.3d 1142
    , 1147 (4th Cir.
    1996) (standard of review); U.S.S.G. § 3B1.1, comment. (n.2) (defen-
    dant must exercise authority over another participant to qualify for the
    adjustment, but departure may be warranted for defendant who has
    management responsibility for property, assets, or activities of crimi-
    nal organization).
    The district court mentioned, in making its finding, that the evi-
    dence showed that Martinez exercised management responsibility
    over the property, assets, and activities of the conspirators and, were
    this all it found, the adjustment would be improper. However, the
    court also found that Martinez conducted all the negotiations in Flor-
    ida, suggested Charleston as the place where the sale should take
    place because he had a contact there, and took the lead in negotiations
    even when Landaetta was present. Based on these findings, which
    were supported by the evidence, the adjustment was not clearly erro-
    neous. Because adjustments are mandatory if supported by the evi-
    dence, use of an adjustment is correct if any factor validly supports
    it. See United States v. Ashers, 
    968 F.2d 411
    , 414 (4th Cir. 1992).
    Therefore, the district court did not err in making the adjustment. The
    second issue Martinez raises is without merit; because the district
    court did not depart, advance notice of a possible departure was not
    necessary.
    We therefore affirm the sentence. 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
    3