U.S. v. Martinez-Jimenez, 01-4234.

• Decision Date: 27 June 2002
• Docket Number: No. 01-4234.,01-4234.
• Citation: 294 F.3d 921
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo MARTINEZ-JIMENEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

294 F.3d 921

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo MARTINEZ-JIMENEZ, Defendant-Appellant.

No. 01-4234.

United States Court of Appeals, Seventh Circuit.

Argued April 19, 2002.

Decided June 27, 2002.

Daniel E. Gillogly (argued), Office of the U.S. Attorney, Criminal Division, Chicago, IL, for plaintiff-appellee.

Roderick F. Mollison (argued), Azulay, Horn, Kalaf & Yoo, Chicago, IL, defendant-appellant.

Before: BAUER, POSNER and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge.

The appellant, Alfredo Martinez-Jimenez, was indicted for illegal re-entry into the United States. Martinez-Jimenez entered a guilty plea, which was accepted by the district court, and was sentenced to 21 months imprisonment with three years supervised release, a fine of $2000 and a $100 assessment. On appeal, Martinez-Jimenez argues that the district court improperly calculated his sentence under the United States Sentencing Guidelines (USSG). Because the appellant has waived any claim of error in the calculation of his sentence, we AFFIRM the decision of the district court.

Background

On August 23, 1993, a Cook County grand jury indicted Martinez-Jimenez in two counts of violating the Illinois Child Abduction statute. 720 ILCS 5/10-5(10). Martinez-Jimenez pled guilty and was convicted for attempting to lure a child into a motor vehicle for an unlawful purpose. He was sentenced to three years imprisonment in the Illinois Department of Corrections. As part of the sentencing process, the state advised the judge of the circumstances surrounding the crimes at issue, including that Martinez-Jimenez, while exposing himself and masturbating, told two young girls to get into his van and not to tell their mother. Following his release from custody, Martinez-Jimenez was deported. On April 1, 2001, Martinez-Jimenez was found in Chicago without permission to re-enter the United States. He was arrested and thereafter charged with illegal re-entry in violation of 8 U.S.C. § 1326.

Pursuant to a written plea agreement, Martinez-Jimenez pled guilty to the charge of unlawfully entering or being found in the United States after deportation. Prior to sentencing, both Martinez-Jimenez and the government submitted arguments regarding the appropriate offense level calculation under the USSG. Specifically, the parties addressed and disputed whether Martinez-Jimenez' prior state conviction qualified as a "crime of violence" and thus an "aggravated felony"¹ justifying an eight point enhancement to the base offense level of eight under the USSG. At sentencing, the district court adopted the probation officer's supplemental report, which included an eight level increase for Martinez-Jimenez' prior conviction for an "aggravated felony." Accordingly, the district court added eight levels to the base offense level of eight and subtracted three levels pursuant to USSG § 3E1.1 and the plea agreement, thereby producing an adjusted offense level of 13. When asked whether he disputed the adjusted offense level of 13, Martinez-Jimenez, by way of counsel, voiced no objection and responded, "We do not."

Discussion

The government argues that Martinez waived any claim of error in the calculation of his offense level. Waiver occurs when a defendant intentionally relinquishes a known right. United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000) (citations omitted). Waiver operates to extinguish the claim of error and precludes appellate review. Id.; United States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir.2000) ("[W]e cannot review waived issues at all because a valid waiver leaves no error for us to correct on appeal.") (citations omitted).

When asked whether he had any dispute with the court's conclusion that his offense be categorized as a level 13, Martinez stated that he did not. By such statement, Martinez plainly communicated an intention to relinquish and abandon any arguments related to his offense level calculation. See, e.g., United States v. Richardson, 238 F.3d 837, 841 (7th Cir.2001) (answering no to question of whether there was any objection to a two-level sentencing enhancement was a waiver in the strict sense of the term, thereby barring further judicial consideration); Harris, 230 F.3d at 1059 (finding that by affirmatively declining to object at sentencing, defendant extinguished sentencing issue); United States v. Redding, 104 F.3d 96, 99 (7th Cir.1996) (holding statements in transcript evidencing acceptance of sentencing calculations constituted waiver) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Martinez-Jimenez argues that the court and/or the government were...