660 Fed.Appx. 499 (9th Cir. 2016), 15-10251, United States v. Martinez

Docket Nº:15-10251
Citation:660 Fed.Appx. 499
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERTO MARTINEZ, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Michael Lee, Assistant U.S. Attorney, Todd Mitchell Allison, Assistant U.S. Attorney, Mark J. Wenker, USPX - Office of the U.S. Attorney, Phoenix, AZ. For GILBERTO MARTINEZ, Defendant - Appellant: Marc J. Victor, Marc J. Victor PC, Chandler, AZ.
Judge Panel:Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,[***] District Judge.
Case Date:August 15, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 499

660 Fed.Appx. 499 (9th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

GILBERTO MARTINEZ, Defendant-Appellant

No. 15-10251

United States Court of Appeals, Ninth Circuit

August 15, 2016

Submitted August 11, 2016, [**] San Francisco, California

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the District of Arizona. D.C. No. 2:14-cr-00495-SRB-1. Susan R. Bolton, District Judge, Presiding.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Michael Lee, Assistant U.S. Attorney, Todd Mitchell Allison, Assistant U.S. Attorney, Mark J. Wenker, USPX - Office of the U.S. Attorney, Phoenix, AZ.

For GILBERTO MARTINEZ, Defendant - Appellant: Marc J. Victor, Marc J. Victor PC, Chandler, AZ.

Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,[***] District Judge.

MEMORANDUM[*]

Defendant Gilberto Martinez appeals his convictions, after a jury trial, for possessing five kilograms or more of cocaine with intent to distribute; possessing 100 kilograms or more of marijuana with intent to distribute; possessing 50 grams or more of methamphetamine with intent to distribute; using, carrying, or possessing a firearm in furtherance of a drug-trafficking crime; and being a felon in possession of firearms and/or ammunition, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(B)(vii) & (b)(1)(A)(viii); 18 U.S.C. § 924(a)(2) & (c)(1)(A)(i); and 18 U.S.C. § 922(g)(1). We affirm.

1. On de novo review, United States v. Duenas, 691 F.3d 1070, 1079 (9th Cir. 2012), we hold that the district court properly denied the motion to suppress. Probable cause and exigent circumstances justified the warrantless entry and limited search of the home, see Hopkins v. Bonvicino, 573 F.3d 752, 766-67 (9th Cir. 2009) (stating those two requirements for warrantless entry). At approximately 2:50 a.m. on March 31, 2014, an anonymous 911 caller reported that he saw four or five males--at least one of whom was armed--break into a nearby duplex by kicking down the door. After the door was kicked in, the caller heard loud yelling and possibly gunshots. The...

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