United States v. Edgardo Martinez-Martinez

FILED NOT FOR PUBLICATION MAR 08 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-30139 Plaintiff - Appellee, D.C. No. 6:09-cr-60088-MRH v. MEMORANDUM * EDGARDO MARTINEZ-MARTINEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Oregon Michael R. Hogan, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Edgardo Martinez-Martinez appeals from the 30-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Martinez-Martinez contends that the district court procedurally erred by * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). impermissibly considering his rejection of the government’s fast-track plea offer and the sentence that would have resulted therefrom. We review for plain error. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir. 2010). Martinez- Martinez fails to demonstrate that the district court’s inquiry into whether he rejected a plea offer was plain error that affected his substantial rights. See United States v. Dallman, 533 F.3d 755, 761-62 (9th Cir. 2008). Martinez-Martinez also contends that the sentence imposed is substantively unreasonable due to the age of the prior violent felony conviction that triggered a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The district court specifically considered the 18 U.S.C. § 3553(a) sentencing factors, in conjunction with the staleness of the conviction, prior to granting a downward variance from the advisory Guidelines range. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-56 (9th Cir. 2009). The below-Guidelines sentence is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007). AFFIRMED. 2 10-30139