United States v. Nicky Martinez

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 29, 2005

No. 05-10382

THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 04-20285-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICKY MARTINEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

Nicky Martinez appeals his sentence for drug and firearm violations and

argues, for the first time, that the district court erred under United States v. Booker,

– U.S. –, 125 S. Ct. 738 (2005), when it treated the Sentencing Guidelines as

mandatory at sentencing. The government concedes that the district court plainly

erred and that the sentence should be vacated and this case remanded for

resentencing. During sentencing, the district court expressed an unequivocal desire

to impose a sentence lower than the minimum sentence mandated by the

Guidelines. Because the district court committed plain error when it applied the

Sentencing Guidelines as mandatory and that error affected Martinez’s substantial

rights, we vacate and remand for resentencing.

I. BACKGROUND

In September 2004, Nicky Martinez pleaded guilty to two counts of a ten-

count indictment: conspiracy to possess with intent to distribute at least five

kilograms of cocaine in violation of 21 U.S.C. sections 846 and 841(b)(1)(A), and

using or carrying a firearm in furtherance of a violent and drug-related crime in

violation 18 U.S.C. section 924(c)(1)(A). Because Martinez had two previous

convictions for crimes of violence, he qualified for an enhanced sentence as a

career offender. The career offender guideline provided for a Criminal History

Category of VI. The resulting sentencing range under the Guidelines was 262 to

327 months’ imprisonment for the cocaine charge, with 60 months to run

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consecutively for the weapons charge.

At the sentencing hearing on January 6, 2005, Martinez stated that he did not

“see any factual errors” in the Pre-Sentence Investigation report, “had not made

any objections,” and agreed that the Guidelines range was correct as calculated.

Martinez did, however, move for a downward departure in the Criminal History

Category because the two previous felony convictions that qualified Martinez as a

career offender occurred ten years earlier, when he was only 19. Martinez made no

other argument for reducing his sentence, and Martinez’s counsel noted that,

“[o]ther than [the downward departure], I don’t believe there is really anything the

Court can do [to reduce the sentence], unless the Court sees something that I

don’t.” The district court granted the downward departure and recalculated the

applicable Guideline range for the cocaine charge at 235 months to 293 months.

During the hearing, the court repeatedly expressed a concern that the

Guideline range was too high, asking rhetorically “[a]m I using a sledge hammer

when a hammer would be just as effective.” The transcript recorded numerous

statements of the district court indicating frustration with the Guideline minimum

sentence:

[A]lthough the government may take me up on appeal, I think that this

is a case that warrants the exercising of the discretion to not give him

the straight career criminal category, but to go down. Unfortunately

the Sentencing Guidelines limit me to just going down one level. So I

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have done that. I understand he is trying to cooperate with the

government. I don’t have as much room to play here as I–and I am

getting no–

...

I exercised my discretion and went downward from where I would

have started at, 262 [months], to 235 [months]. If I could go [farther],

I might consider doing that. But I have talked with [the probation

officer]. The two of us have studied the books to see if there is any

way that we can do it legally. And we, as [defense counsel] said, and

he has done it too, we can’t find any other way.

...

The Court has considered the statements by all of the parties and

reviewed the Presentence Investigation Report. The Court will

impose a sentence within the guidelines, at the very bottom of the

guidelines, since the term of imprisonment is more than sufficient

punishment and deterrent.

...

MS. LAGOA: And, Your Honor, also to be clear on the record, the

government has no objection to the sentence imposed.”

THE COURT: Oh, thank God. Is there any way we can make it

shorter?

MS. LAGOA: No.

THE COURT: I hope that you are able to be back here for a Rule 35

in some way shape or another, Mr. Martinez, because I do feel that

you have the abilities to make a very positive contribution.

The court imposed no fine, sentenced Martinez to 235 months for the cocaine

charge and 60 months for the firearms charge, and recommended an intensive drug

treatment program “so that he will be eligible for an additional year off his

sentence....”

Martinez filed a notice of appeal on January 18, 2005. Before Martinez filed

his initial brief on appeal, he filed a “Motion for Temporary Relinquishment of

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Jurisdiction to the Trial Court,” in which Martinez requested that we return his case

to the district court for reconsideration of his sentence in the light of the decision of

the Supreme Court in Booker. Martinez’s unconventional motion is now before

us, and we construe it as a motion for summary reversal. See N.L.R.B. v.

Amalgamated Clothing Workers of Am., AFL-CIO, Local 990, 430 F.2d 966, 971

n.13 (5th Cir. 1970) (citing Groendyke Transp., Inc., v. Davis, 406 F.2d 1158,

1161 n.6 (5th Cir. 1969)). We then directed the government to file a letter brief

regarding the merits of Martinez’s appeal.

II. DISCUSSION

Because Martinez did not object to the conclusion of the district court that it

was bound by the Guidelines as mandatory, our review is for plain error. We “may

not correct an error the defendant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights. If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005) (internal quotations and citations omitted). As the

government concedes, Martinez prevails even under this circumscribed review.

Martinez easily satisfies the first and second prongs of the plain error test.

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The district court erred when it sentenced Martinez because it considered the

Guidelines to be mandatory. United States v. Shelton, 400 F.3d 1325, 1330-31

(11th Cir. 2005). Although the error was not plain at the time of sentencing,

“where the law at the time of trial was settled and clearly contrary to the law at the

time of appeal ... it is enough that the error be ‘plain’ at the time of appellate

consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544,

1549 (1997). Under Booker, application of the Guidelines as mandatory is now

plainly error.

The third prong requires Martinez to show that the plain error “affects [his]

substantial rights,” and that the error “actually did make a difference.” Rodriguez,

398 F.3d at 1298. “[I]n applying the third prong, we ask whether there is a

reasonable probability of a different result if the guidelines had been applied in an

advisory instead of binding fashion by the sentencing judge in this case.” Id. at

1300. Martinez satisfies this exacting standard.

As recounted above, the district court made repeated comments during the

sentencing hearing that displayed frustration with its inability to impose a sentence

lower than the Guideline minimum. The court did not merely state that it “might

consider” imposing a lower sentence if not precluded by the Guidelines; rather, the

court asked if there was “any way we can make [the sentence] shorter,” stated that

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the court had unsuccessfully “studied the books to see if there is any way that we

can [reduce the sentence] legally,” and expressed regret that “[u]nfortunately the

Sentencing Guidelines limit me to just going down one level. ... I don’t have as

much room to play here as I–....” These comments establish that there is a

reasonable probability that the district court would have imposed a more lenient

sentence if the court had considered the Guidelines to be advisory.

“Finally, under the fourth prong of plain-error review, we consider whether

the ‘plain error’ at sentencing ‘seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.’” Shelton, 400 F.3d at 1333 (citations omitted).

Shelton provides that Martinez prevails under this prong:

The district court in this case indicated an express desire to impose a

sentence lesser than the low end of the Guidelines range of 130

months’ imprisonment, and the Supreme Court in Booker plainly

indicated that the district court now has the discretion to do so,

provided the resulting sentence is reasonable in light of the § 3553(a)

factors. Under these circumstances, defendant Shelton has carried his

burden to establish the fourth prong and has shown that the plain error

that affected his substantial rights also seriously affected the fairness,

integrity or public reputation of the judicial proceedings in his

particular case.

Id. at 1333-34. Because the district court expressed a clear desire to impose a more

lenient sentence and Booker provides that the district court had the authority to

consider the Guidelines as advisory, the plain error of applying the Guidelines in a

mandatory fashion seriously affected the fairness, integrity or public reputation of

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Martinez’s sentencing.

III. CONCLUSION

Martinez’s motion for summary reversal is GRANTED. Martinez’s

sentence is VACATED in its entirety and this matter is REMANDED to the

district court for a new sentencing hearing. At the new sentencing hearing, the

district court must consider the Guidelines range along with the statutory factors

contained in 18 U.S.C. section 3553(a).

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