UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4845
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL MARTINEZ-MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00290-MR-1)
Submitted: April 27, 2010 Decided: May 14, 2010
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Steven Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raul Martinez-Martinez pleaded guilty to illegal
reentry of a deported alien who was an aggravated felon and
received an eighty-nine-month sentence. Counsel has filed an
Anders v. California, 386 U.S. 738 (1967), brief stating that he
has discerned no meritorious issues, but that the sentence may
be procedurally unreasonable because the court did not
adequately explain its reasoning for the sentence, including the
refusal to grant a downward variance based on the community,
family, and cultural connections Martinez-Martinez established
in the United States and the danger he would encounter in
returning to his home country of El Salvador. We agree that
there is procedural error in determining the sentence and remand
for resentencing, but affirm the conviction.
Counsel asserts that the district court did not
adequately consider the mitigating issues raised by
Martinez-Martinez before imposing sentence. The advisory
Sentencing Guidelines range was 77-96 months of imprisonment.
The district court heard from Martinez-Martinez’s counsel that
it would be dangerous for Martinez-Martinez to return to El
Salvador and that he has attempted to be law abiding while in
the United States. The court heard from the Government that
Martinez-Martinez has illegally reentered the United States
three other times, that his previous sentence for the same type
2
of offense of seventy-eight months did not deter
Martinez-Martinez from repeating the same behavior, and that
Martinez-Martinez was arrested on this occasion after driving
while severely drunk and hitting three cars, and fleeing the
site of the accident. After hearing argument by counsel and a
statement by Martinez-Martinez, the court denied
Martinez-Martinez’s motion for a downward variance without
comment. The court then pronounced its sentence and reasoning,
stating only that it had considered all the factors of 18 U.S.C.
§ 3553(a) (2006) in determining the sentence.
After United States v. Booker, 543 U.S. 220 (2005),
this court reviews a sentence for reasonableness, using an abuse
of discretion standard of review. Gall v. United States, 552
U.S. 38, 51 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
3
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse if
such an abuse of discretion is found unless the court can
conclude “that the error was harmless.” United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010). For instance, “the district
court must state in open court the particular reasons supporting
its chosen sentence [and] set forth enough to satisfy the
appellate court that [the sentencing judge] has considered the
parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal citations and
quotation marks omitted). If “an aggrieved party sufficiently
alerts the district court of its responsibility to render an
individualized explanation” by drawing arguments from § 3553
“for a sentence different than the one ultimately imposed,” the
party sufficiently “preserves its claim.” Lynn, 592 F.3d at
578. When counsel requests a sentence at the bottom of the
Guidelines range or below, the error is preserved. Id. at 581.
In a post-Lynn case, United States v. Thompson, 595 F.3d 544
(4th Cir. 2010), we explained that "a defendant need only ask
for a sentence outside the range calculated by the court prior
to sentencing in order to preserve his claim for appellate
review." 595 F.3d at 546.
4
We conclude that, under Lynn, Martinez-Martinez’s
arguments in the district court preserved his claim of
procedural sentencing error on appeal. Lynn, 592 F.3d at 581.
In particular, Martinez-Martinez’s counsel requested a downward
variance from the Guidelines range. These arguments
“sufficiently alert[ed] the district court of its responsibility
to render an individualized explanation addressing those
arguments.” Id. at 578. Therefore, we review any procedural
sentencing error for abuse of discretion and reverse unless the
error was harmless. Id. at 579.
The district court erred because it failed to explain
why it imposed the chosen sentence. See id. at 581-82. The
court stated, without discussion, that it took into account the
§ 3553 sentencing factors. It did not address the mitigating
factors raised by Martinez-Martinez, nor provide any other
reason for choosing the sentence imposed. Moreover, this court
cannot presume that the district court simply adopted the
Government’s arguments. The error was not harmless because the
district court’s lack of explanation for imposing this condition
resulted in “a record insufficient to permit even routine review
for substantive reasonableness.” Id. at 582 (citation and
quotation marks omitted).
We therefore affirm the conviction, but vacate the
sentence and remanding for resentencing. In accordance with
5
Anders, we have reviewed the record in this case and have found
no other meritorious issues for appeal. 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 IN PART;
VACATED AND REMANDED IN PART
6