United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-20084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW DANIEL MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(4:04-CR-380-1)
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Andrew Daniel Martinez appeals the
concurrent 68-month sentences imposed following his guilty-plea
conviction for conspiracy and aiding and abetting the possession
with the intent to distribute between 1400 and 2000 grams of
methylenedioxymethampehetamine. He argues that the sentences
imposed, each of which constituted a downward deviation from the
advisory guideline range of 78-98 months of imprisonment, are
unreasonable. Martinez contends that the district court
*
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this opinion should not be published and is not precedent except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.
erroneously refused to consider all the factors mandated by
18 U.S.C. § 3553(a) when declining to depart further downward based
on Martinez’s adverse childhood circumstances.
The district court thoroughly articulated its reasons for
imposing non-Guideline sentences in this case. See United States
v. Duhon, 440 F.3d 711, 715 (5th Cir. 2006). In fashioning the
sentences, the district court properly considered the advisory
guideline range and the sentencing factors set forth in § 3553(a).
Id. The sentences imposed do not fail to account for any
sentencing factor that should have received significant weight.
Id. The district court did not rely on any irrelevant or improper
factors in determining the appropriate sentences. Id.
Furthermore, the district court’s balancing of the sentencing
factors set forth in § 3553(a) does not represent a clear error of
judgment. Id. Accordingly, the non-Guideline sentences imposed in
this case are reasonable.
Martinez also argues, for the first time on appeal, that the
district court lacked jurisdiction to convict and sentence him
because 21 U.S.C. § 841 is unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000). Martinez acknowledges that he is
raising this issue to preserve it for Supreme Court review. This
issue is foreclosed by our opinion in United States v. Slaughter,
238 F.3d 580, 582 (5th Cir. 2000).
AFFIRMED.
2