IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2009
No. 08-10158
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSCAR JOEL MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:07-CR-43-ALL
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Oscar Joel Martinez appeals from his guilty plea conviction of receiving
child pornography and aiding and abetting. Martinez contends that his
sentence, which was within the relevant guideline sentencing range, was
unreasonable because the relevant guideline sentencing provision, U.S.S.G.
§ 2G2.2, is irrational and was not the result of careful study and deliberation but
rather was the result of Congressional fiat; that the district court failed to
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10158
provide adequate reasons for his sentence; and that the district court sentenced
him as if the Sentencing Guidelines were mandatory.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for “reasonableness.” United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005). Under the now-discretionary guidelines scheme, the sentencing court
has a duty to consider the factors of 18 U.S.C. § 3553(a) and to correctly
determine the applicable guidelines range. Mares, 402 F.3d at 518-19. Pursuant
to Gall v. United States, 128 S. Ct. 586, 596-97 (2007), this court must determine
whether the sentence imposed is procedurally sound, including whether the
calculation of the advisory guidelines range is correct, and whether the sentence
imposed is substantively reasonable. Review is for abuse of discretion. Id. at
597.
Martinez raises his issues for the first time on appeal. Our review is for
plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.),
cert. denied, 129 S. Ct. 625 (2008). To show plain error, an appellant must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
A sentence imposed within a properly calculated guideline sentencing
range is entitled to a rebuttable presumption of reasonableness. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see Rita v. United States, 127 S. Ct.
2456, 2462 (2007). “In appropriate cases, district courts certainly may disagree
with the Guidelines for policy reasons and may adjust a sentence accordingly.
But if they do not, we will not second-guess their decisions under a more lenient
standard simply because the particular Guideline is not empirically-based.”
United States v. Mondragon-Santiago, F.3d , 2009 WL 782894, *9 (5th
Cir. Mar. 26, 2009). This court “will presume a sentence within the current
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No. 08-10158
version of the Guidelines to be reasonable, and the defendant must rebut that
presumption to demonstrate substantive unreasonableness.” Id. Martinez has
shown no error, plain or otherwise, as to whether his sentence is entitled to a
presumption of reasonableness.
The district court at sentencing had before it the presentence report (PSR),
Martinez’s motion for a departure or variance, and the Government’s response
to that motion. The district court adopted the calculations and reasoning of the
PSR and listened to Martinez’s particular arguments for a departure or
variance. The district court said nothing about the motion for a departure or
variance, but did state that the sentence served the goals of punishment and
deterrence. The district court’s reason for the sentence was explained
adequately. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir.), cert.
denied, 129 S. Ct. 624 (2008).
Martinez does not direct this court to any particular statements by the
district court suggesting that it was sentencing him under a mistaken belief that
the Sentencing Guidelines were mandatory, and his contention has no basis in
fact. The district court said nothing at the sentencing hearing suggesting that
it viewed the Guidelines as mandatory, and it admonished Martinez at his
rearraignment that the Guidelines were advisory only.
AFFIRMED.
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