United States v. Martinez

• Decision Date: 26 September 2017
• Docket Number: No. 16-50643.,16-50643.
• Citation: 872 F.3d 293
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Richard MARTINEZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

872 F.3d 293

UNITED STATES of America, Plaintiff-Appellee

v.Richard MARTINEZ, Defendant-Appellant

No. 16-50643.

United States Court of Appeals, Fifth Circuit.

FILED September 26, 2017

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, Jennifer Sheffield Freel, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, Austin, TX, for Plaintiff-Appellee.

Michael Simons, Vinson & Elkins, L.L.P., Austin, TX, David Currie, Esq., Vinson & Elkins, L.L.P., Houston, TX, for Defendant-Appellant.

Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

In this appeal, Richard Martinez challenges both his conviction and his sentence. Martinez asserts that the district court reversibly erred at trial by denying his motion to reopen the evidence to permit him to testify. With respect to sentencing, Martinez asserts that the district court attributed an erroneous quantity of methamphetamine to him when calculating his base offense level. Further, he contends the district court failed to adequately explain the basis for his sentence. We AFFIRM.

BACKGROUND

Martinez was arrested on December 7, 2015, after a traffic stop in Austin, Texas. Officers stopped Martinez for an unsafe lane change, and they soon discovered liquid methamphetamine hidden in the fuel tank of Martinez's truck.

Trial and denial of motion to reopen

A federal grand jury returned a two-count indictment against Martinez. The indictment charged Martinez with (1) conspiracy to possess with intent to distribute 500 grams or more of methamphetamine ( 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 ) and (2) possession with intent to distribute 500 grams or more of methamphetamine ( 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) ).

Martinez entered a plea of not guilty, and the matter proceeded to a jury trial.

The Government rested in the morning of the second day of trial, at which point Martinez unsuccessfully moved for acquittal pursuant to Fed. R. Cr. P. 29. Martinez then rested, and both the Government and defense closed their cases.

The court informed the jury that it would not hear any more evidence, and placed the jury into recess from 10:10 a.m. until 1:30 p.m. Outside the presence of the jury, counsel briefly discussed the jury charges. Around 10:15 a.m., the court placed itself in recess. When the court returned to the bench at 11:30 a.m., defense counsel immediately informed the court that Martinez wished to reopen the evidence and testify.

The court denied Martinez's oral motion to reopen. From start to finish, the colloquy between the court and counsel regarding the motion lasted only about ninety seconds.¹

The jury ultimately convicted Martinez of possession with intent to distribute and acquitted him of conspiracy to distribute methamphetamine.

Sentencing

Relying upon a law enforcement laboratory report concerning the substances recovered from Martinez's fuel tank, the PSR attributed 22.302 kilograms of methamphetamine (actual) and 879.317 grams of "ice" methamphetamine to Martinez. Under the 2015 U.S. Sentencing Guidelines Manual, this produced a base offense level of 38. No adjustments applied. Combined with Martinez's criminal history category of I, the PSR computed a guideline imprisonment range of 235 months to 293 months.

Martinez submitted a lengthy series of pro se objections to the PSR. The most pertinent, read broadly, contends that his truck's fuel tank could not hold the amount of liquid methamphetamine attributed to him. Specifically, Martinez asserted that, though he did not know "how to weigh or measure" the drugs, there was "no way [he] had all that" methamphetamine because "that [amount] does not fit [in] a gas tank."

Defense counsel also moved for a downward variance "based on a policy disagreement with the present methamphetamine guideline." Counsel asked the court to consider the statutory minimum sentence of ten years.

At the sentencing hearing, the district court overruled Martinez's objections and imposed a 235-month prison sentence, which represented the bottom of the guidelines range. Near the end of the hearing, defense counsel stated that Martinez wished to appeal in part based on a claim of ineffective assistance of counsel. In connection with that possibility, the court indicated that it would permit defense counsel's withdrawal upon filing of the appropriate paperwork, and would then appoint new counsel if Martinez did not hire a lawyer. Defense counsel's last comment at the hearing was this remark: "He [i.e., Martinez's presumptive replacement counsel] would probably object to the reasonableness of the sentence. I will do that on your behalf."

STANDARDS OF REVIEW

Motion to reopen

"Generally, the reopening of a criminal case after the close of evidence lies within the sound discretion of the [district] court." United States v. Walker , 772 F.2d 1172, 1177 (5th Cir. 1985) (quoting United States v. Ramirez , 608 F.2d 1261, 1267 (9th Cir. 1979) ). "The district court's decision whether or not to reopen the evidence will be overturned on appeal only upon a showing that it abused its discretion." Id. (citing United States v. Thetford , 676 F.2d 170, 182 (5th Cir. 1982), cert. denied , 459 U.S. 1148, 103 S.Ct. 790, 74 L.Ed.2d 996 (1983) ).

"In Thetford , we outlined factors which the district court 'must' consider in exercising its discretion," which include "the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion." Id. (quoting Thetford , 676 F.2d at 182 ). "The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief." Id. (quoting Thetford , 676 F.2d at 182 ). "The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused." Id. (quoting Thetford , 676 F.2d at 182 ). "The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party's case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered." Id. (quoting Thetford , 676 F.2d at 182 (quoting United States v. Larson , 596 F.2d 759, 778 (8th Cir. 1979) )).

Procedural reasonableness of sentence

"This court reviews 'the district court's interpretation or application of the sentencing guidelines de novo , and its factual findings for clear error.' " United States v. Groce , 784 F.3d 291, 294 (5th Cir. 2015) (quoting United States v. Scott , 654 F.3d 552, 555 (5th Cir. 2011) ). "We do not afford deference to the district court in the review of mathematical error in a sentencing guideline calculation." United States v. Severin , 221 Fed.Appx. 299, 301 (5th Cir. 2006) (unpublished) (citing Koon v. United States , 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ).

DISCUSSION

I. Motion to reopen

We review the district court's decision to deny the motion to reopen in light of the following four factors: (1) the timeliness of the motion; (2) the character of the testimony the movant wishes to present; (3) the effect of granting the motion; and (4) the reasonableness of the movant's excuse for failing to present the evidence in his case-in-chief. See Walker , 772 F.2d at 1177–84. As discussed below, we conclude that each of the first three factors favor, or do not weigh against, Martinez. However, Martinez's failure to provide the district court with a reasonable explanation for not exercising the opportunity to testify before closing his case persuades us that the district court did not abuse its discretion by denying Martinez's motion.

A. Timeliness of the motion

Martinez moved to reopen just under 1.5 hours after both parties rested and closed the evidence. This period of time is similar to or shorter than several other intervals after which this court has deemed motions timely. See United States v. Parker , 73 F.3d 48, 53–54 (5th Cir. 1996) (concluding that "a delay of one hour, during which the court took its normal lunch break" weighed in favor of the movant), reh'g en banc granted and opinion vacated , 80 F.3d 1042 (5th Cir. 1996), and opinion reinstated in pertinent part on reh'g , 104 F.3d 72 (5th Cir. 1997) ; see also United States v. Rodriguez , 43 F.3d 117, 125–26 (5th Cir. 1995) (concluding that a motion "was timely made" when the parties closed the evidence one evening, and the defendant moved to reopen the following morning, prior to closing argument). In Walker , we stated the delay between the close of evidence on a Friday and the defense's motion to reopen the following Monday "weigh[ed] against [the defendant's] position on appeal," but was "minor" and "not ... such a significant factor as to govern the disposition." 772 F.2d at 1177–78.

Given the short time period between the closing of the evidence and Martinez's motion, and because Martinez moved to reopen before closing arguments and the jury charge, the timing of the motion weighs in Martinez's favor.

B. Character of the testimony

In Walker , we deemed the defendant's "testimony in his own defense ... of such inherent significance that the district court, as a matter of fairness, should have permitted him to testify." 772 F.2d at 1178–79. There, the defendant "had not testified at all," and we reasoned that "his testimony would be of particular interest to the fact finder because he would be testifying as the alleged active participant in the activities which were the focus of the trial." Id. at 1179. "Where the very point of a trial is to determine whether an individual was involved in criminal activity," we stated, "the testimony of the individual himself must be considered of prime importance." Id. ; see also Parker , 73 F.3d at 54 (holding that this factor weighed in favor of a defendant who wished to testify regarding "the one disputed fact in the trial" and who "was the only source of testimony available...