United States v. Eduardo Martinez-Trejo

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10940 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 12, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:09-cr-80131-KLR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO MARTINEZ-TREJO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(October 12, 2010)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
 Eduardo Martinez-Trejo appeals his 70-month sentence imposed after he

pled guilty to illegally re-entering the United States after having been deported, in

violation of 8 U.S.C. § 1326(a), (b)(2). After review, we affirm.

I. BACKGROUND

In 2002, Martinez-Trejo, a native and citizen of Mexico, was convicted of

possession of cocaine while living in the United States. In 2004, Martinez-Trejo

was convicted of aggravated assault on a police officer and fleeing and eluding at

high speed. He was deported in 2006, following the latter convictions. On

September 4, 2009, Martinez-Trejo was again arrested on state criminal charges in

Palm Beach County, Florida. There was no record that either the Attorney

General or the Secretary for Homeland Security had consented to Martinez-Trejo’s

re-entry into the United States.

Because Martinez-Trejo was not given permission to re-enter the United

States, the government charged him with illegal reentry, in violation of 8 U.S.C.

§ 1326(a) & (b)(2), to which he pled guilty. Martinez-Trejo’s presentence

investigation report (“PSI”) assigned a base offense level of 8, pursuant to

U.S.S.G. § 2L1.2(a), and a 16-level increase for his previous deportation after his

aggravated assault conviction, pursuant to U.S.S.G. § 2L1.2(b)(1)(A). After a

three-level reduction for acceptance of responsibility, pursuant to U.S.S.G.

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§ 3E1.1, Martinez-Trejo’s total offense level was 21. With a criminal history

category of V,1 Martinez-Trejo’s resulting advisory guidelines range was 70 to 87

months’ imprisonment. Martinez-Trejo did not object to the PSI’s factual

statements or guidelines calculations.2

At sentencing, the parties agreed on the advisory guidelines calculations and

that the resulting advisory guidelines range was 70 to 87 months’ imprisonment.

Martinez-Trejo asked the district court for a downward variance to a 46-month

sentence. He admitted his aggravated assault conviction was a crime of violence,

thereby putting him within the operation of the 16-level increase under

§ 2L1.2(b)(1)(A). However, Martinez-Trejo argued that the nature of that offense

(he struck an officer’s patrol car not intentionally but while driving recklessly)

was not as serious as burglary or murder and thus the sentencing range resulting

from the full 16-level increase was unreasonably high. He further contended that

the 16-level increase was meant to apply to prior convictions such as burglary or

1
Martinez-Trejo’s criminal history points came from: (1) his 2002 convictions for cocaine
possession; (2) a 2002 conviction for grand theft; (3) another 2002 conviction for possession of
cocaine and other controlled substances; (4) his 2004 convictions for aggravated assault and
fleeing and eluding at high speed; and (5) his 2009 convictions for possession of cocaine and
other offenses.
2
Martinez-Trejo initially objected to two of his criminal-history points, claiming that the
instant offense occurred more than two years from his release from custody. He dropped this
objection at sentencing.

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murder, not a relatively insignificant offense like his. Martinez-Trejo contended

that a 46-month sentence (which would be a low end of the guidelines sentence

had he received a 12-level, instead of a 16-level, increase) was reasonable.3

The government opposed Martinez-Trejo’s request for a variance. The

government referred to Martinez-Trejo’s criminal record and stated that he “seems

to have a pension [sic] for narcotics. But more importantly, it seems that he likes

to drive cars in reckless manners.” Referencing Martinez-Trejo’s aggravated

assault conviction, the government pointed out that Martinez-Trejo had recklessly

driven his car at a high rate of speed at the police officer’s car while the officer

was inside. To avoid collision, the officer swerved out of his lane. Contrary to

Martinez-Trejo’s assertions, the government stressed “the potential for dangerous

injury, for bodily injury was still there and apparent.” Accordingly, the

government asserted that a guidelines sentence was appropriate for Martinez-

Trejo, and that he should be given a sentence in the middle-to-high end of the

advisory guidelines range.

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Martinez-Trejo asked for an additional variance because of the disparity of sentences
between fast-track and non-fast-track districts, but conceded this Circuit’s precedent foreclosed
the district court from granting such a request. See United States v. Vega-Castillo, 540 F.3d
1235, 1238-39 (11th Cir. 2008), cert. denied, 129 S. Ct. 2825 (2009) (concluding that district
courts are prohibited from considering the disparities created by “fast track” programs in
deciding whether to impose a downward variance). This argument is raised, but not developed,
in this appeal.

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 Before imposing a sentence, the district court rejected Martinez-Trejo’s

argument that it should vary from the advisory guidelines range:

I don’t see any basis for changing the guideline. This man’s criminal
record is atrocious . . . . In fact, after reading the PSI I debated about
going up in the guideline. But 70 months seems to be sufficient to get
his attention. But I don’t know -- these people come into this country
and just commit all of these crimes and we see this day after day. They
somehow have got to get the message that they just can’t come in here
and run wild.

The court stated that it had “considered the statements of all parties, the

presentence report which contains the advisory guidelines and the statutory

factors,” and then imposed a 70-month sentence, with three years’ supervised

release.

II. DISCUSSION

Martinez-Trejo argues that his 70-month sentence is unreasonable. We

review the reasonableness of a sentence for abuse of discretion using a two-step

process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We look

first at whether the district court committed any significant procedural error and

then at whether the sentence is substantively reasonable under the totality of the

circumstances. Id. The party challenging the sentence bears the burden to show it

is unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United

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States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).4 We ordinarily expect

that a sentence within the advisory guidelines range will be reasonable. United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

Here, the district court did not commit any procedural sentencing error. The

court explicitly stated that it “considered the statements of all parties, the

presentence report which contains the advisory guidelines and the statutory

factors.” Under United States v. Smith, 568 F.3d 923 (11th Cir. 2009), “the

district court must consider the § 3553(a) factors, [but] it commits no reversible

error by failing to articulate specifically the applicability – if any – of each of the

section 3553(a) factors, as long as the record demonstrates that the pertinent

factors were taken into account by the district court.” Id. at 927 (quotation marks

omitted). The record adequately demonstrates that the district court did consider

the § 3553(a) factors as to Martinez-Trejo. Moreover, the parties agree that the

district court’s advisory guidelines calculation was correct. Thus, the district court

committed no procedural error.

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The § 3553(a) factors are: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

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 Martinez-Trejo also has not shown that his 70-month sentence, at the low

end of the advisory guidelines range, is substantively unreasonable. Contrary to

his arguments, the district court did not place unwarranted emphasis on Martinez-

Trejo’s advisory guidelines range and criminal history. By considering Martinez-

Trejo’s “atrocious” criminal history, the district court properly considered the

history and characteristics of the defendant.

Martinez-Trejo alleges that the district court’s comment about sending a

message to illegal immigrants demonstrates reliance on an impermissible “non-

factor.” We disagree because that comment in context is fairly characterized as

discussing the § 3553(a) factors of the needs for deterrence, to promote respect for

the law and to protect the public from further crimes.

We also reject Martinez-Trejo’s argument that the application of the 16-

level increase under U.S.S.G. § 2L1.2(b)(1)(A) created an unwarranted sentencing

disparity. Specifically, Martinez-Trejo asserts that his aggravated assault

conviction is not the kind of violent crime that the authors of the guidelines had in

mind when they created the 16-level increase. This argument is wholly

unpersuasive. Section 2L1.2(b)(1)(A) takes into account differences between

prior convictions by placing them along “a graduated sentencing enhancement

scheme.” United States v. Ortega, 358 F.3d 1278, 1280 (11th Cir. 2003) (citing

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U.S.S.G. app. C, amend. 632); see also U.S.S.G. § 2L1.2(b)(1)(A)-(E) (providing

for enhancements ranging from 4 to 16 levels depending upon the type of prior

conviction). The Sentencing Commission also determined that a prior conviction

for a violent crime warranted a 16-level enhancement. U.S.S.G. §

2L1.2(b)(1)(a)(ii). The conduct underlying Martinez-Trejo’s aggravated assault

conviction involved his driving his car recklessly toward a law enforcement

officer’s car at a high rate of speed, thereby endangering that officer’s safety.

Thus, we cannot say the 16-level enhancement for Martinez-Trejo’s aggravated

assault conviction created an “unwarranted” sentencing disparity requiring a

downward variance.

Martinez-Trejo also contends that U.S.S.G. § 2L1.2 is inherently

unreasonable in that it double counts criminal history. Specifically, he says that

his sentence was unreasonable because his prior conviction was used both to

determine his offense level under U.S.S.G. § 2L1.2(b)(1)(A) and his criminal

history category under U.S.S.G. § 4A1.1. However, the Sentencing Commission

intended prior felony convictions to count in determining both the criminal history

category and the offense level under § 2L1.2. See U.S.S.G. § 2L1.2 cmt. n.6 (“A

conviction taken into account under subsection (b)(1) is not excluded from

consideration of whether that conviction receives criminal history points . . . .”).

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Further, these two guidelines provisions serve different purposes. United States v.

Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992) (explaining that the criminal

history category serves “to punish likely recidivists more severely,” and §

2L1.2(b)(1)(A) serves “to deter aliens who have been convicted of a felony from

re-entering the United States”). In this case, both of these purposes are served by

the district court’s using the aggravated assault conviction to calculate both

Martinez-Trejo’s criminal history and his offense level. As a result, the district

court’s use of Martinez-Trejo’s aggravated assault conviction to compute his

criminal history score and his offense level did not render his sentence

substantively unreasonable.

Given Martinez-Trejo’s criminal history and the nature of his underlying

offense, and the fact that he was sentenced at the low end of the advisory

guidelines range, we cannot say that the district court abused its discretion by

imposing the 70-month sentence, or that the sentence is procedurally or

substantively unreasonable.

AFFIRMED.

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