United States v. Martinez-Hernandez , 139 F. App'x 512 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4867
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELESIO MARTINEZ-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-280)
Submitted: June 22, 2005 Decided: July 18, 2005
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Warren Sparrow, Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Angela H. Miller, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Melesio Martinez-Hernandez appeals his conviction and
sixty-six month sentence imposed after he pleaded guilty to one
count of reentry by a deported alien after conviction of an
aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2)
(2000). On appeal, Martinez-Hernandez asserts that he was
improperly sentenced under a mandatory guidelines1 scheme in
violation of the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005). Because we find no plain error in
the determination or imposition of Martinez-Hernandez’s sentence,
we affirm.
In Booker, the Supreme Court applied the rationale of
Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal
sentencing guidelines and held that the mandatory guidelines scheme
that provided for sentence enhancements based on facts found by the
court violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48,
755-56 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing and excising the statutory
provisions that mandate sentencing and appellate review under the
guidelines, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court). Subsequently, in United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court
held that a sentence imposed under the pre-Booker mandatory
1
U.S. Sentencing Guidelines Manual (“USSG”) (2003).
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sentencing scheme and enhanced based on facts found by the court,
not by a jury (or, in a guilty plea case, admitted by the
defendant), constitutes plain error. This error affects the
defendant’s substantial rights and warrants reversal under Booker
when the record does not disclose what discretionary sentence the
district court would have imposed under an advisory guideline
scheme. Hughes, 401 F.3d at 546-56. We directed sentencing courts
to calculate the appropriate guideline range, consider that range
in conjunction with other relevant factors under the guidelines and
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a
sentence. If a sentence outside the guideline range is imposed,
the district court should state its reasons for doing so. Id. at
546.
Because Martinez-Hernandez withdrew his objections to the
sentence calculations included in the presentence report and
adopted by the district court, we review the district court’s
sentence for plain error. United States v. Olano, 507 U.S. 725,
732 (1993); Hughes, 401 F.3d at 547. Under the plain error
standard, Martinez-Hernandez must show: (1) there was error; (2)
the error was plain; and (3) the error affected his substantial
rights. Olano, 507 U.S. at 732-34. Even when these conditions are
satisfied, we may exercise our discretion to notice the error only
if the error “seriously affect[s] the fairness, integrity or public
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reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted).
In determining whether error occurred in
Martinez-Hernandez’s sentencing, we note that Hughes also
recognized “that after Booker, there are two potential errors in a
sentence imposed pursuant to the pre-Booker mandatory guidelines
regime: a Sixth Amendment error, . . . and an error in failing to
treat the guidelines as advisory.” Hughes, 401 F.3d at 552. On
appeal, Martinez-Hernandez does not raise any specific argument
that his sentence was affected by a Sixth Amendment error, but
asserts error in the application of the guidelines as a mandatory
sentencing determinant. In United States v. White, 405 F.3d 208(4th Cir. 2005), this court determined that “even in the absence of
a Sixth Amendment violation, the imposition of a sentence under the
former mandatory guidelines regime rather than under the advisory
regime outlined in Booker is error” that is plain. Id. at 216-17.
We also concluded that, to satisfy the third prong of the plain
error test, an appellant must demonstrate actual prejudice. Id. at
217-24. White could not satisfy this requirement, however, because
he could not establish that the application of the guidelines as
mandatory had an effect on “‘the district court’s selection of the
sentence imposed.’” Id. at 223 (quoting Williams v. United States,
503 U.S. 193, 203 (1992)).
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Our review of the district court’s remarks at the
sentencing hearing leads us to conclude that the district court’s
statements do not support Martinez-Hernandez’s argument, but would
rather require speculation by this court to determine whether the
district court would have imposed a lesser sentence by treating the
guidelines as advisory. White, 405 F.3d at 223-25. Accordingly,
Martinez-Hernandez cannot demonstrate that the district court’s
error2 in sentencing him pursuant to a mandatory guidelines scheme
affected his substantial rights.
We therefore affirm Martinez-Hernandez’s conviction and
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
2
We of course offer no criticism of the district court judge,
who followed the law and procedure in effect at the time of
Martinez-Hernandez’s sentencing.
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