U.S. v. Martinez, 96-1878

• Decision Date: 20 August 1997
• Docket Number: No. 96-1878,96-1878
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John W. MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 421

122 F.3d 421

UNITED STATES of America, Plaintiff-Appellee, v. John W. MARTINEZ, Defendant-Appellant.

No. 96-1878.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1997.

Decided Aug. 20, 1997.

Charles E. Ex (argued), Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Plaintiff-Appellee.

Stephen K. Milott (argued), Chicago, Il, for Defendant-Appellant.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

After pleading guilty to possession of a firearm by a felon pursuant to a plea agreement, John Martinez was sentenced to fifteen years in prison. He now appeals, arguing that he was improperly sentenced under the Armed Career Criminal Act because the district court erred in counting an earlier military court-martial as a felony. We affirm.

I.

A three-time convicted felon, John Martinez was arrested after selling firearms to an undercover agent with the Bureau of Alcohol, Tobacco, and Firearms. Still unaware of the undercover agent's true identity, and instead suspecting a friend had turned him in, Martinez instructed the agent to lie to investigators in order to protect Martinez and finger his friend. Based on these events, Martinez was indicted on four felon-in-possession-of-firearms counts (18 U.S.C. § 922(g)) and one witness tampering count (18 U.S.C. § 1512(b)(1)). Pursuant to a plea agreement, Martinez pleaded guilty to one of the firearms counts. In return the government dismissed the remaining counts. Because of prior convictions, among them a general court-martial conviction under the Uniform Code of Military Justice (UCMJ) in 1976, the court sentenced Martinez under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA or Act) to a mandatory minimum of 15 years. According to the presentence investigation report, absent application of this mandatory minimum, Martinez's sentencing range would have been 135 to 168 months (11 years, 3 months to 14 years).

On appeal, Martinez disputes the court's inclusion of his court-martial offense as a prior violent felony under the Act. That UCMJ conviction for "housebreaking" resulted from Martinez's unlawful nighttime entry into, and theft of items from, the Guantanamo Bay Marine Corps Exchange. The district court concluded that "housebreaking" was consistent with "burglary," which is explicitly included as a violent felony under the ACCA. The burglary conviction along with other convictions not under dispute mandates application of the 15-year minimum. Martinez argues the court erred, first by concluding that housebreaking was consistent with burglary, and second by considering a military court a court within the meaning of the Act. Additionally, Martinez argues the district court violated the separation of powers clause by "interpreting" his court-martial conviction.

II.

Before we address the merits of Martinez's appeal, we pause to point out why that should have been unnecessary: Martinez entered into a plea agreement in which he stipulated in paragraph 7(d): "For purposes of applying the guidelines promulgated by the United States Sentencing Commission pursuant to Title 28, United States Code, Section 994, the parties agree ... [that] [p]ursuant to Guideline § 4B1.4(b)(3)(B), the base offense level for the offense is increased to level 33 because defendant is an Armed Career Criminal within the meaning of that Guideline." Martinez now argues that he is not an Armed Career Criminal within the meaning of that Guideline. Either he is or he is not; he cannot have it both ways. While he may believe he has a colorable argument that he is not an Armed Career Criminal, a claim we reject below, Martinez knowingly waived that argument when he entered into the agreement with the government. In return, the government dismissed other charges contained in the indictment. While he reserved a right to correct "errors in calculations or interpretation," the clear language referring to Armed Career Criminal cannot now be discounted as an error in interpretation. Also, that general reservation does not take back the more specific stipulation in which he admits to both the existence and significance of his prior convictions. Nor may a defendant get out of portions of a plea agreement; he may withdraw from the plea agreement in its entirety and go to trial or he must abide by the plea agreement in its entirety. United States v Wenger, 58 F.3d 280, 282-83 (7th Cir.1995). What he may not do is pick and choose which portions he wishes to abide by and which he wishes to appeal. Id. at 283. "It is inappropriate to take a blue pencil to the agreement, removing the provisions that in retrospect the defendant wishes were not there." Id. When Martinez signed the agreement admitting that "[f]or purposes of applying the guidelines ... defendant is an Armed Career Criminal," he knowingly waived the right to contend that for purposes of the guidelines he is not an Armed Career Criminal.

So we are surprised to find no mention of waiver in the government's brief. At oral argument the government advised that its "initial" and "principal" argument before the district court had been that the plea agreement bound Martinez, but that once the district court "took argument on the issue despite the plea agreement, and once the district court instead of ruling that they were bound by the plea agreement, went to the merits, ... we do not believe the argument had automatically been waived by virtue of the plea agreement." It appears from the record that despite the terms of the plea agreement, right from the start, at the change in plea hearing, counsel for Martinez disputed whether the UCMJ conviction triggered application of the ACCA. The court accepted the change in plea without resolving the dispute and the parties proceeded to treat the plea as if paragraph 7(d) were a debatable part of the agreement. As a result the issue was taken up in the pleadings and at sentencing. The government never contended that Martinez had waived this argument by the admissions and concessions contained in the plea agreement, but rather proceeded on the merits of the argument. The government thereby waived the waiver argument, or at the least forfeited it. United States v. Baker, 40 F.3d 154, 160 (7th Cir.1994). Thus we are obliged to address the merits of Martinez's claim that he is not an Armed Career Criminal despite his admission in the plea agreement that he in fact was such a criminal.

III.

Martinez first argues that a military conviction for "housebreaking" under the UCMJ does not qualify as a violent felony under the ACCA. The ACCA, which provides a 15-year mandatory minimum for three previous violent felonies, defines "violent felony" to include "burglary." ¹ Martinez contends "housebreaking" under the UCMJ does not constitute "burglary" under the ACCA. In support of his argument he notes that the UCMJ contains a separate offense of "burglary," Article 129, and that he was not convicted of that offense. ²

Martinez's argument fails because the ACCA does not require that, in order to be considered "burglary" under the Act, an offense be officially termed "burglary." The Supreme Court in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990), held that generic burglary constitutes a qualifying offense under 18 U.S.C. § 924(e)(2)(B): "[A] person has been convicted of burglary for purposes of [the Act] if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." This court, too, has held that an unarmed generic burglary of an unoccupied, nonresidential structure, without the use or threat of force, qualifies as a violent felony under the Act. United States v. Gallman, 907 F.2d 639, 644-45 (7th Cir.1990).

Martinez was courtmartialed and convicted of violating Article 130 of the UCMJ, titled "housebreaking," the elements of which are (1) unlawful entry of a building or structure of another and (2) the intent to commit a criminal offense therein. United States v. Hart, 49 C.M.R. 693, 695, 1975 WL 15890 (A.C.M.R.1975) (stating elements of housebreaking). The penalty was up to five years incarceration. Because these are the same elements of generic burglary spelled out in Taylor, Martinez's court-martial conviction qualifies as a violent felony under the ACCA.

Martinez next contends that a military court is not a "court" within the meaning of the Act which requires that the convictions be by "any court referred to in 922(g)(1)." Looking to section 922(g)(1), we find nothing that defines or limits the term "court," only a requirement that a conviction have been "in any court" in the course of prohibiting possession of firearms by a felon. Certainly "any court" includes a military court, the adjective "any" expanding the term "court" to include "one or some indiscriminately of whatever kind"; "one that is selected without restriction or limitation of choice"; or "all." Webster's Third New International Dictionary, 1991.

The Sentencing Guidelines compel the court's use of military convictions for sentencing enhancement: "Sentences resulting from military offenses are counted if imposed by a general or special courtmartial. Sentences imposed by a summary courtmartial or Article 15 proceeding are not counted." USSG § 4A1.2(g). See also United States v. Wilson, 927 F.2d 1188, 1189-90 (11th Cir.1991) (even uniquely military conviction of being absent without leave qualifies under § 4A1.2(g) for calculation of criminal history category); United States v. Locke, 918 F.2d 841, 842 (9th Cir.1990) (applying guideline to sentencing enhancement based on military conviction). Martinez's conviction for housebreaking under the UCMJ was the result of a general court-martial, thus the tribunal qualifies as "any court....