UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4962
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN LUIS MARTINEZ-MARTINEZ, a/k/a Jose Lopez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00300)
Submitted: June 15, 2007 Decided: July 12, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Thomas Tullidge Cullen, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Luis Martinez-Martinez pled guilty to illegal
reentry of a deported alien, 8 U.S.C. § 1326(a), (b)(2) (2000), and
was sentenced to a term of eighty-five months imprisonment.
Martinez-Martinez contends on appeal that the sixteen-level
enhancement applied by the district court under U.S. Sentencing
Guidelines Manual § 2L1.2(b)(2)(A) (2005), for a prior felony
firearms conviction was inconsistent with a stipulation in his plea
agreement, and the enhancement was not properly applied in his
case. We affirm.
Paragraph 5 of the plea agreement provided that “the
Court has the final discretion to impose any sentence up to the
statutory maximum for each count,” and that “[t]he defendant
further understands that no recommendations or agreements by the
United States are binding upon the Court.” Paragraph 6 provided
that, pursuant to Fed. R. Crim. P. 11(c)(1)(B), the parties
stipulated and agreed that the applicable base offense level was 8,
under USSG § 2L1.2(a), and an 8-level enhancement for a prior
aggravated felony conviction would be applied under subsection
(b)(1)(C) “if probation and the Court find this adjustment legally
appropriate,” resulting in an offense level of 16.* Paragraph 6(c)
stated that Martinez-Martinez might receive an adjustment for
*
An agreement by the government under Rule 11(c)(1)(B) to
“recommend, or agree not to oppose the defendant’s request, that a
particular sentence is appropriate or that a particular . . .
sentencing factor does or does not apply” is not binding on the
sentencing court. An agreement under Rule 11(c)(1)(C) is binding
on the court once the plea agreement is accepted.
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acceptance of responsibility, but that “the defendant understands
that any reduction in offense level is ultimately for the Court’s
determination.” Paragraph 6(f) stated that “[t]he parties agree
that no other enhancements or reductions apply.” At the Rule 11
hearing, both the government attorney and defense counsel discussed
the stipulation concerning the eight-level enhancement.
Despite the parties’ stipulation, the probation officer
recommended a sixteen-level enhancement for Martinez-Martinez’s
1994 Texas conviction for possession of a sawed-off shotgun, under
§ 2L1.2(b)(1)(A)(ii) (prior crime of violence), and (iii) (prior
firearms offense). Martinez-Martinez objected that the terms of
his plea agreement did not give the district court discretion to
vary from the stipulated guideline calculation once the plea was
accepted, and that a sixteen-level enhancement would render his
plea agreement void. Martinez-Martinez also argued that the
sixteen-level enhancement should not apply because the prior
conviction was a juvenile conviction. Under Application Note
1(A)(iv), no enhancement under § 2L1.2(b)(1) may be applied “to a
conviction for an offense committed before the defendant was
eighteen years of age unless such conviction is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted.” Martinez-Martinez pointed out that the
1994 arrest report stated that Martinez-Martinez turned over to the
Hidalgo Police Department for arrest “due to the fact that he was
a minor.” However, after reviewing the Texas indictment and
judgment, the district court determined that Martinez-Martinez was
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prosecuted and sentenced as an adult in the Texas criminal justice
system.
On appeal, to the extent that Martinez-Martinez maintains
that he was misinformed about the non-binding nature of the
stipulation at the Rule 11 hearing, his claim is reviewed for plain
error because he did not seek to withdraw his guilty plea in the
district court. United States v. Martinez, 277 F.3d 517, 523 (4th
Cir. 2002). The plea agreement clearly stated that the parties’
stipulation was made pursuant to Rule 11(c)(1)(B). Therefore, it
was not binding on the district court and the court did not plainly
err in so finding. The court was free to adopt the probation
officer’s recommendation for a sixteen-level enhancement without
violating the terms of the agreement.
The district court’s determination that the prior
conviction was an adult conviction is a legal decision that is
reviewed de novo. United States v. Mason, 284 F.3d 555, 558 (4th
Cir. 2002). Martinez-Martinez relies on the fact that he was
seventeen at the time of the 1994 offense, pointing out that, in
the U.S. Customs report concerning the arrest, the Customs agent
was advised by his supervisor that Martinez-Martinez should be
turned over to the local police because he was a minor.
However, even though the federal agents may have regarded
Martinez-Martinez as a minor, Texas law treats a seventeen-year-old
as an adult. See Tex. Family Code § 51.02 (Vernon 2007) (giving
juvenile court jurisdiction over persons under seventeen years
old); Benavidez v. State, 655 S.W.2d 233, 235 (Tex. Ct. App. 1983)
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(seventeen-year-olds are tried as adults in Texas). We conclude
that the enhancement was properly applied.
Accordingly, we affirm the sentence imposed by the
district court. 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
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