United States v. Martinez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 18, 2007

Charles R. Fulbruge III
Clerk
No. 06-20221
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MOHAMMED KAZAM MARTINEZ

Defendant - Appellant

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-523-1
--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Mohammed Kazam Martinez appeals the sentence imposed

following his guilty-plea conviction for conspiracy to possess

with intent to distribute cocaine and aiding and abetting the

possession with intent to distribute cocaine. He argues that the

district court erred in calculating the cocaine quantity

attributable to him pursuant to U.S.S.G. § 1B1.3. Martinez did

not present any rebuttal evidence at the sentencing hearing to

establish that the drug quantity in the Presentence Report (PSR)

was inaccurate. The facts set forth in the PSR have an adequate

*
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this opinion should not be published and is not precedent except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.
 No. 06-20221
-2-

evidentiary basis as they were corroborated by the testimony of

Officer Nelius at the sentencing hearing and by the officers’

investigation of the Ramirezes and seizure of cocaine and large

amounts of cash. Therefore, the district court did not clearly

err in determining that Martinez was responsible for 194

kilograms of cocaine. See United States v. Caldwell, 448 F.3d

287, 290 (5th Cir. 2006); see also United States v. Ocana, 204

F.3d 585, 591 (5th Cir. 2000).

Martinez argues that the district court erred in determining

that he was a leader in the offense and increasing his offense

level by four levels pursuant to U.S.S.G. § 3B1.1(a). Because

Martinez did not present any rebuttal evidence, the district

court did not clearly err in determining that Martinez was a

leader or organizer in the offense, based on the PSR and the

evidence presented at the sentencing hearing showing that

Martinez was involved in a conspiracy involving five persons, he

directed the actions of some of these persons, and he was solely

responsible for determining where, to whom, how, and under what

terms the cocaine was distributed. See United States v.

Villanueva, 408 F.3d 193, 204 (5th Cir.), cert. denied, 126

S. Ct. 268 (2005).

Martinez argues that the sentence imposed by the district

court was unreasonable and that the district court did not

consider all of the 18 U.S.C. § 3553(a) factors, the drug

quantity alleged in the indictment, or his cooperation with
 No. 06-20221
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authorities. The district court gave the following reasons for

the sentence: the nature of the offense involving a large amount

of cocaine, a large amount of drug-related cash, and firearms

(§ 3553(a)(1)); Martinez’s extensive involvement in the offense,

his history of no employment, his acceptance of responsibility,

and his cooperation with the Government (§ 3553(a)(1)); the need

for punishment and deterrence (§ 3553(a)(2)(A) & (B)); and the

statutory sentence range and the guideline sentencing range

(§ 3553(a)(3) & (4)). Martinez has not shown that the district

court misapplied the Guidelines, failed to consider the § 3553(a)

factors, failed to give reasons for the sentence, or considered

improper factors in imposing the sentence. Therefore, Martinez

has not shown that the sentence imposed by the district court was

unreasonable. See United States v. Mares, 402 F.3d 511, 518-20

(5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

Martinez also argues that language in United States v.

Alonzo, 435 F.3d 551 (5th Cir. 2005), violates United States v.

Booker, 543 U.S. 220 (2005). He concedes that we are bound by

our precedent and raises the issue to preserve further review.

We have not, however, relied on Alonzo and its rebuttable

presumption of reasonableness in deciding this appeal.

AFFIRMED.