United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-40235
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-252-6)
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Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Andres Martinez pleaded guilty to
conspiracy to possess with intent to distribute more than 500 grams
of methamphetamine. Martinez appeals his 168 month sentence,
arguing that the district court abused its discretion when it
denied his motion to continue the sentencing hearing so that the
government could evaluate the information that he had provided on
the morning of sentencing, and to allow him time to provide
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
additional information in hopes of securing a motion for downward
departure pursuant to U.S.S.G. § 5K1.1.
The government was not obligated to file a motion for downward
departure under § 5K1.1 if, in its evaluation and discretion,
Martinez had not provided substantial assistance. Martinez was
afforded several opportunities to cooperate with government. His
cooperation, however, came too late, and the government determined
that the information provided by Martinez was not useful. In any
event, Martinez was not prejudiced by the denial of his motion,
because, under Rule 35(b) of the Federal Rules of Criminal
Procedure, the government was permitted to file a post-sentencing
motion for a reduction in Martinez’s sentence based on his
assistance. FED. R. CRIM. P. 35(b). Accordingly, Martinez has not
proven that the district court abused its discretion and that he
suffered prejudice resulting from the denial of his motion to
continue. United States v. Peden, 891 F.2d 514, 519 (5th Cir.
1989).
Martinez also appeals his 168 month sentence on the grounds
that the district court made insufficient findings to support the
total drug quantity attributed to him under U.S.S.G. §§ 2D1.1 and
1B1.3, and that it erred when it denied him a two-level reduction
in his base offense level under U.S.S.G. § 3B1.2 for his minor role
in the offense.
Martinez filed written objections to the presentence report
challenging the accuracy of the drug quantity calculation and his
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role in the offense. At the sentencing hearing, Martinez informed
the district court that he was not pursuing the written objections
to the presentence report, that the presentence report was
correctly written in all respects, and that the district court
could rely upon the presentence report in determining his sentence.
Martinez has thus waived any challenge to the accuracy of the drug
quantity calculation and his role in the offense, and his argument
is not reviewable on appeal. See United States v. Musquiz, 45 F.3d
927, 931 (5th Cir. 1995); United States v. Olano, 507 U.S. 725, 733
(1993).
The judgment of the district court is
AFFIRMED.
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