Case: 20-10434 Document: 00515729673 Page: 1 Date Filed: 02/02/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-10434 February 2, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Martinez,
Defendant—Appellant,
consolidated with
_____________
No. 20-10438
_____________
United States of America,
Plaintiff—Appellee,
versus
Luis Miguel Martinez,
Defendant—Appellant.
Case: 20-10434 Document: 00515729673 Page: 2 Date Filed: 02/02/2021
No. 20-10434
c/w No. 20-10438
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-362-4
USDC No. 4:15-CR-232-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Luis Martinez appeals the 188-month above-guidelines sentence
imposed following his guilty plea conviction for conspiracy to possess with
intent to distribute a controlled substance in violation of 21 U.S.C. § 846. He
also appeals the 16-month revocation sentence imposed on the related
revocation of his term of supervised release on an earlier conviction for felony
possession of a firearm. See 18 U.S.C. § 3583(e). The district court ordered
that these sentences be served consecutively. We AFFIRM both sentences
but REMAND for the limited purpose of correcting a clerical error in the
revocation judgment.
With respect to his drug conviction, Martinez argues that the district
court erred in varying upward to 188 months because it did not adequately
base its decision on the facts or the 18 U.S.C. § 3553(a) factors, because it did
not explain the sentence, and because it was based solely on his criminal
history. He argues that certain statements by the district court indicate that
it was unfamiliar with his case. Martinez also argues that the district court
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
2
Case: 20-10434 Document: 00515729673 Page: 3 Date Filed: 02/02/2021
No. 20-10434
c/w No. 20-10438
erred in ordering his sentences to run consecutively and in failing to explain
why consecutive sentences addressed the § 3553(a) factors.
We review an original sentence for reasonableness in light of the
sentencing factors of § 3553(a). See Gall v. United States, 552 U.S. 38, 46, 49-
50 (2007). In reviewing for reasonableness, we “merely ask[] whether the
trial court abused its discretion.” Rita v. United States, 551 U.S. 338, 351
(2007); see United States v. Fraga, 704 F.3d 432, 437 (5th Cir. 2013). We
ordinarily review a revocation sentence to determine if it is plainly
unreasonable in light of certain sentencing factors set forth in § 3553(a),
asking whether the district court abused its discretion. See United States
v. Miller, 634 F.3d 841, 843-44 (5th Cir. 2011).
However, when a defendant fails to preserve his argument by raising
it in the district court, plain error review applies. See Puckett v. United States,
556 U.S. 129, 135 (2009). Under plain error review, we determine if there
was a clear or obvious legal error which affected the defendant’s substantial
rights. See id. If he makes this showing, we have the discretion to remedy
the error “only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal punctuation, quotation
marks, and citation omitted).
Because Martinez did not argue before the district court that it failed
to adequately explain the above-guidelines sentence or its decision to run the
sentences consecutively, that procedural objection is reviewed for plain
error. See United States v. Coca-Ortiz, 801 Fed. App’x 285, 286 (5th Cir.
2020). The record confirms there is no clear or obvious error. Puckett, 566
U.S. at 135. Even assuming, however, that the district court committed a
clear or obvious error, Martinez has not shown that his substantial rights were
affected as nothing in the record suggests that more thorough explanations
would have resulted in a shorter sentence for the drug conviction or in an
3
Case: 20-10434 Document: 00515729673 Page: 4 Date Filed: 02/02/2021
No. 20-10434
c/w No. 20-10438
order running the sentences concurrently. See id.; United States v. Rivera,
784 F.3d 1012, 1018 (5th Cir. 2015).
In sentencing Martinez to 188 months for the drug conviction, an
upward variance from the recommended 130 to 162-month guidelines range,
the district court listened to Martinez’s arguments in mitigation, but it was
concerned about recidivism because of Martinez’s “terrible” criminal
history and his failure to be dissuaded from further criminal activity by
previously imposed “light” sentences. It also concluded that the 188-month
sentence adequately and appropriately addressed all of the § 3553(a) factors.
“[A] district court may rely upon factors already incorporated by the
Guidelines to support a non-Guidelines sentence.” United States v. Brantley,
537 F.3d 347, 350 (5th Cir. 2008). Moreover, under the totality of the
circumstances, including the significant deference that is given to the district
court’s consideration of the § 3553(a) factors, the extent of the variance, and
the district court’s reasons for its sentencing decision, the above-guidelines
sentence was substantively reasonable. See Fraga, 704 F.3d at 439-40;
Brantley, 537 F.3d at 348-50; United States v. Smith, 440 F.3d 704, 709 (5th
Cir. 2006).
The decision to impose consecutive sentences was also within the
discretion of the district court, and that decision was authorized by statute
and recommended by the Guidelines. See 18 U.S.C. § 3584(a); U.S.S.G.
§ 7B1.3(f). Given the deference owed the district court, we will not disturb
the district court’s exercise of discretion in imposing consecutive sentences.
Finally, we note that the district court orally pronounced a revocation
sentence of 16 months, but the written judgment states that the revocation
sentence is 15 months. We sua sponte remand this case for the limited
purpose of correcting the clerical error in the written revocation judgment.
See Fed. R. Crim. P. 36; United States v. Illies, 805 F.3d 607, 610 (5th Cir.
4
Case: 20-10434 Document: 00515729673 Page: 5 Date Filed: 02/02/2021
No. 20-10434
c/w No. 20-10438
2015); United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).
AFFIRMED; REMANDED for the limited purpose of correcting the
clerical error in the revocation judgment.
5