FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 13, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2071
(D.C. No. 2:15-CR-00568-JB-1)
JOSE ERIBERTO MARTINEZ, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________
Joseph Eriberto Martinez, an El Salvadoran citizen, appeals from a sentence
imposed for illegally reentering the United States in violation of 8 U.S.C. § 1326.
The district court rejected Martinez’s fast-track plea agreement and sentenced
Martinez to twenty-four months’ imprisonment, the upper limit of the Guidelines
sentencing range. Martinez argues that the district court erred by rejecting his fast-
track plea agreement and by over-emphasizing deterrence in determining his
sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
Border patrol agents encountered Martinez on a Greyhound bus at a
checkpoint near Las Cruces, New Mexico. Martinez admitted that he was a citizen of
El Salvador and that he did not have legal authorization to enter or remain in the
United States. After border patrol agents arrested Martinez, the government charged
him with illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326.
At the time of his arrest, Martinez was on supervised release from a prior
conviction for illegal reentry. In 2011, the Western District of Texas court sentenced
Martinez to twenty-four months’ imprisonment and three years of supervised release
for illegal reentry of a removed alien. Before 2011, Martinez also had a drug-
trafficking conviction in Orange County, California.
Despite his prior convictions, the government and Martinez agreed to propose
to the district court a fast-track plea agreement under Fed. R. Crim. P. 11(c)(1)(C),
providing Martinez a four-offense-level reduction and a two-level reduction for
accepting responsibility. If the district court accepted the Rule 11(c)(1)(C) plea
agreement, it would be bound to a sentencing range between eight to fourteen
months. Martinez pleaded guilty before a magistrate judge but reserved his right to
change his plea in case the district court rejected the plea agreement. At Martinez’s
first sentencing hearing, the district court expressed concern about the plea agreement
because it didn’t give the court “enough range to adequately reflect some of the
3553(a) factors, particularly respect for the law and specific deterrence.” R. Vol. III
at 20. Because of an issue with Martinez’s earlier deportation date, the Court
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continued the sentencing hearing without announcing its sentence to allow the Parties
to correct the earlier deportation date.
At the second sentencing hearing, the district court rejected the plea agreement
and told Martinez that he could withdraw his guilty plea. The district court explained
that it had considered all of the § 3553(a) factors, including deterrence and noted that
Martinez’s previous twenty-four month sentence hadn’t deterred him from illegally
reentering the United States. The district court concluded that the plea agreement did
not provide the district court with enough flexibility to consider all of the factors
under 18 U.S.C. § 3553(a) and therefore, it rejected the fast-track plea agreement.
Martinez later pleaded guilty without a plea agreement. The Guidelines
sentencing range without the fast-track plea agreement was eighteen to twenty-four
months. At the final sentencing hearing, Martinez argued for a sentence below the
Guidelines sentencing range of eighteen to twenty-four months. Martinez argued that
if the fast-track program had been available in the Western District of Texas in 2011,
his sentence at that time would likely have been substantially less than the twenty-
four months’ imprisonment he received. Additionally, Martinez argued that economic
desperation and rampant violence in El Salvador caused Martinez to leave the
country and seek work in the United States. The government also argued for a
sentence in accordance with the Parties’ fast-track plea agreement. The district court
rejected the Parties’ arguments and sentenced Martinez to twenty-four months’
imprisonment.
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The district court carefully explained its decision, including the factors under
§ 3553. For example, the district court explained that it considered the nature and
circumstances of the offense, including the difficult conditions Martinez faced in El
Salvador. The Court explained that “while understanding the situation in El Salvador
is not a good one, the Court’s not sure how returning him to El Salvador sooner
rather than later helps him.” R. Vol. III at 73. The district court discussed Martinez’s
history, including his prior convictions for illegal reentry and drug trafficking. The
district court expressed its discomfort with Martinez’s having killed a man in
California, which Martinez claims was self-defense. The district court further
explained that a twenty-four month sentence was necessary for deterrence because
the previous sentence had not deterred Martinez from illegally reentering the United
States. The district court explained that the sentence was necessary “to promote
respect for the law, provide a just punishment, afford adequate deterrence, both at a
specific and a general level,” and to protect the public. Id. at 74–75.
In response to an objection from Martinez, the district court explained that it
considered all of the other § 3553(a) factors, but that deterrence was especially
important in this case. After the third sentencing hearing, the district court issued a
fifty-five page opinion carefully analyzing the section 3553(a) factors. The district
court noted that “[b]ecause Martinez returned to the United States after serving a 24
month prison sentence, the Court concludes that a sentence of 8 months, or even a
sentence at or below the low end of the guidelines range of 18 to 24 months, will not
be sufficient to comply with § 3553(a)'s directives.” R. Vol. I at 49. After providing a
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detailed analysis of all the § 3553(a) factors and fully considering and addressing
Martinez’s arguments, the district court concluded that a high-end sentence was
appropriate and sentenced Martinez to twenty-four months.
On appeal, Martinez argues that the district court’s sentence is substantively
unreasonable. Martinez argues that the sentence is unreasonable because the district
court focused solely on deterrence and excluded all of the other factors under
§ 3553(a).
STANDARD OF REVIEW
We review the substantive reasonableness of a sentence imposed by a district
court for abuse of discretion. United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir.
2013). “A district court abuses its discretion when it renders a judgment that is
arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.
Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011) (quoting United States v. Alvarez-
Bernabe, 626 F.3d 1161, 1165 (10th Cir. 2010)). To determine the substantive
reasonableness of a sentence, we look at the totality of the circumstances. Id.
DISCUSSION
“When evaluating the substantive reasonableness of a sentence, we afford
substantial deference to the district court, and determine whether the length of the
sentence is reasonable given all the circumstances of the case and in light of the
factors [provided] in 18 U.S.C. § 3553(a).” Balbin-Mesa, 643 F.3d at 788 (quoting
Alvarez-Bernabe, 626 F.3d at 1167). We presume a sentence is reasonable if it is
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within the properly calculated guideline range. United States v. Chavez, 723 F.3d
1226, 1233 (10th Cir. 2013).
Martinez acknowledges that his sentence is within the properly calculated
Guidelines sentencing range of eighteen to twenty-four months. The district court
imposed a sentence of twenty-four months’ imprisonment. Thus, we presume the
district court’s sentence is reasonable and that the district court didn’t abuse its
discretion.
Martinez fails to rebut this presumption. First, Martinez claims the district
court overemphasized deterrence to the exclusion of all other the § 3553(a) factors.
But the district court addressed the § 3553(a) factors, not just deterrence.
Specifically, at sentencing, the district court discussed the nature and circumstances
of the offense, including the difficult conditions faced by Martinez in El Salvador.
The Court explained that “while understanding the situation in El Salvador is not a
good one, the Court’s not sure how returning him to El Salvador sooner rather than
later helps him.” R. Vol. III at 73. The district court also addressed Martinez’s
history and said that it found Martinez’s criminal history troubling.
The district court followed up its sentencing discussion with a detailed fifty-
five page opinion discussing the 3553(a) factors. The Court explained why it found
deterrence particularly important in this case. See R. Vol. I at p. 91 (“In a situation
where the defendant has not demonstrated any situational differences between his last
reentry and this reentry, or, as here, the reasons are even less compelling in this case,
the Court has no sound reason to conclude that a shorter sentence will deter him
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now.”). And contrary to Martinez’s claims, the district court didn’t ignore the other
3553(a) factors. See id. (“In addition to promoting deterrence, § 3553(a) directs
courts to promote respect for the law and provide for just punishment.”); id. at 92
(“Regarding the need to protect the public, the Court is concerned about Martinez['s]
drug trafficking conviction, his prior immigration conviction and deportation in 2012,
and the fact that he killed someone in the United States.”). The district court
specifically discussed Martinez’s background and history, and the events that caused
him to reenter the United States. The Court concluded that “while this fact – the
dangerous situation in El Salvador – is sad, it does not put downward pressure on the
sentence.” Id. at 92–93.
Finally, the district court explained that the 24-month sentence avoided
unwarranted sentencing disparities. The district court explained that “a 24-month
sentence avoids any unwarranted disparities among defendants with similar records
who have been found guilty of similar conduct, thereby complying with the precedent
from both the Ninth and Tenth Circuits.” Id. at 94.
After reviewing the district court’s analysis, the district court did not abuse its
discretion in sentencing Martinez to twenty-four months’ imprisonment. See Balbin-
Mesa, 643 F.3d at 788 (twenty-eight month sentence for illegal reentry was not
substantively unreasonable). Instead, the district court properly consider Martinez’s
arguments, considered the factors under § 3553(a), and sentenced Martinez within the
guideline range. Martinez fails to overcome the presumption of reasonableness.
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Martinez also suggests the district court erred by rejecting the fast-track plea
agreement. But a district court is not required to accept a fast-track plea agreement.
U.S.S.G. 5K3.1 (“the court may depart downward not more than 4 levels pursuant to
an early disposition program.”). “Rule 11 vests district courts with the discretion to
accept or reject plea agreements,” and “so long as district courts exercise sound
judicial discretion in rejecting a tendered plea, Rule 11 is not violated.” United States
v. Robinson, 45 F.3d 1423, 1437 (10th Cir. 1995). As we described in detail above,
the district court did not abuse its discretion when it rejected the fast-track plea
agreement. Therefore, the district court’s refusal to accept the binding fast-track plea
agreement is not reversible error.
CONCLUSION
For these reasons, we affirm the substantive reasonableness of Martinez’s
sentence.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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