United States v. Martinez

• Decision Date: 07 June 2016
• Docket Number: No. 15–8019,15–8019
• Citation: 824 F.3d 1256
• Parties: United States of America, Plaintiff–Appellee, v. Emiliano Francisco Martinez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

824 F.3d 1256

United States of America, Plaintiff–Appellee

v.Emiliano Francisco Martinez, Defendant–Appellant.

No. 15–8019

United States Court of Appeals, Tenth Circuit.

June 7, 2016

Grant Russell Smith, Research & Writing Specialist, Office of the Federal Public Defender, Cheyenne, Wyoming (Virginia L. Grady, Federal Public Defender, and Veronica S. Rossman, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, with him on the briefs), for Defendant–Appellant.

Eric J. Heimann, Assistant United States Attorney, Office of the United States Attorney, Cheyenne, Wyoming (Christopher A. Crofts, United States Attorney, Office of the United States Attorney, Cheyenne, Wyoming, with him on the brief), for Plaintiff–Appellee.

Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.

PHILLIPS

, Circuit Judge.

Emiliano Martinez pleaded guilty to possessing an unregistered, short-barrel shotgun in violation of federal law. 26 U.S.C. §§ 5841

, 5845(a), (d), 5861(d), and 5871. Under his plea agreement, Martinez reserved the right to appeal his sentence if the district court determined that his total offense level was greater than 23 under the 2014 United States Sentencing Guidelines. The district court calculated his total offense level as 27 after applying a four-level enhancement for using or possessing a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Key to this enhancement was the district court's finding that Martinez had possessed a firearm in connection with another felony offense—a burglary of the home from which the shotgun Martinez later possessed was stolen.

On appeal, Martinez contends that the district court clearly erred at sentencing when it considered the hearsay statements of Eduardo Hernandez, who, in a police interview, had admitted to committing the burglary with Martinez. Martinez argues that Hernandez's hearsay statements lacked sufficient indicia of reliability to support their probable accuracy. Exercising jurisdiction under 28 U.S.C. § 1291

, we affirm.

BACKGROUND

A. Palomo Burglary

On July 14, 2014, Arlo Palomo's home in Torrington, Wyoming was burglarized. The burglary was extensive, lasting several hours. A burglar even took time to eat a bowl of cereal. Among other items stolen was a Remington 870 12-gauge shotgun. Mr. Palomo told police that his ex-wife, June Palomo, had bought the shotgun at a Walmart in Scottsbluff, Nebraska. Inside the Palomo home, police found a fingerprint left by Eduardo Hernandez.

B. Discovery of a Short–Barrel Shotgun

On July 23, 2014, nine days after the burglary, agents from the Wyoming Division of Criminal Investigation (DCI) and the U.S. Drug Enforcement Administration executed a search warrant—one unrelated to the Palomo burglary—on the car of Martinez's girlfriend, Amanda Dowers. In Dowers's car trunk, the agents found and seized a Remington 870 12-gauge shotgun with a 17-inch barrel.¹ A witness later told DCI that the shotgun belonged to Martinez.

Sometime after the agents executed the search warrant, U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agents Steve McFarland and Matthew Wright took possession of the shotgun and began investigating Martinez. The agents ran a trace on the shotgun's serial number and learned that June Palomo had bought the shotgun from a Walmart in Scottsbluff, Nebraska. Although this was consistent with Arlo Palomo's statements to Torrington police after the burglary, the record doesn't say whether Torrington police had advised the ATF agents about the Palomo burglary before the ATF agents ran the trace.

C. Interview with Martinez

On September 26, 2014, two months after officers seized Martinez's short-barrel shotgun, Agents McFarland and Wright interviewed Martinez in Torrington. During the non-custodial interview, Martinez said that he obtained the shotgun from an unidentified white male in a field “a couple months” before Dowers's arrest (so by his account he would have obtained it sometime near late May 2014). R. vol. 1 at 11. Martinez also told Agents McFarland and Wright that the barrel was already cut down when he obtained the shotgun and that he had put the shotgun in Dowers's car trunk the day that she was arrested. Further, Martinez said that he had previously buried the shotgun in the ground “because there was no need for [him] to be messing with it unless he needed it; and he would leave it buried until the appropriate time.” Id. (alteration in original) (quotation marks omitted).

D. Interviews with Hernandez

On November 18, 2014, four months after the burglary, a Torrington police officer interviewed Hernandez about a string of local burglaries, including the Palomo burglary. At first, Hernandez denied any involvement in the burglaries. After leaving the interview room for “a few seconds,” the Torrington police officer returned and “became more accusatory” in his questioning. R. vol. 3 at 39. Hernandez again denied any involvement in the burglaries. But during the same interview, Hernandez eventually admitted that he had burglarized the Palomo home and had stolen a shotgun during the burglary. The next day, Torrington police again interviewed Hernandez. During this second interview, Hernandez confirmed his earlier admissions. But this time Hernandez implicated Martinez in the burglary, too. Hernandez said that Martinez had stolen some tools while they were both there and that Martinez had returned to the Palomo home later in the day and had stolen additional property. Importantly, Hernandez told police that Martinez had several of the firearms Hernandez had stolen. Torrington police memorialized both of the Hernandez interviews in written reports.

E. Martinez's Plea Agreement and Presentence Investigation Report

Following a criminal complaint on October 8, 2014, and a preliminary hearing on October 15, 2014, a grand jury indicted Martinez on two counts: (1) felon in possession of a firearm (Count One), 18 U.S.C. §§ 922(g)(1)

and 924(a)(2), and (2) possession of an unregistered, short-barrel firearm (Count Two), 26 U.S.C. §§ 5841, 5845(a), (d), 5861(d), 5871. On December 17, 2014, Martinez agreed to plead guilty to Count Two, and the government agreed to dismiss Count One. Under the signed plea agreement, the parties agreed to a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3).

The parties also agreed to the application of two separate enhancements. First, the parties agreed to recommend application of U.S.S.G. § 2K2.1(b)(4)(A)

, which adds two offense levels for possessing a stolen firearm. Second, the parties agreed to recommend application of U.S.S.G. § 2K2.1(b)(3)(B), which adds two offense levels for possessing a destructive device.

Also under the plea agreement, the government agreed to “recommend the court grant a reduction of three offense levels reflect[ing] his acceptance of responsibility” under U.S.S.G. § 3E1.1

. R. vol. 2 at 10. Martinez reserved the right to appeal if the district court calculated his total offense level as greater than 23.²

On January 7, 2015, Torrington police informed ATF Special Agents McFarland and Wright about the Palomo burglary; that a shotgun had been stolen during that burglary; and that Hernandez had admitted to burglarizing the Palomo home with Martinez.

On February 6, 2015, the probation office issued Martinez's Presentence Investigation Report (PSR). As contemplated by the plea agreement, the PSR set Martinez's base offense level as 22 and included the two two-level enhancements for possession of a stolen firearm and possession of a destructive device. But the PSR included an additional four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

—one unaddressed in the plea agreement—for Martinez's possessing a firearm in connection with another felony, reporting that “[Martinez] and [Eduardo] Hernandez burglarized a residence on July 14, 2014, and stole the firearm during the burglary.”³ R. vol. 2 at 21. After subtracting two offense levels for accepting responsibility, U.S.S.G. § 3E1.1(a), and one level for assisting authorities in the investigation of his own misconduct by timely notifying authorities of his intention to enter a guilty plea, id. § 3E1.1(b), the PSR calculated Martinez's total offense level as 27.

The PSR also itemized Martinez's extensive criminal history. In addition to his other convictions, Martinez had pleaded guilty or no contest to six separate thefts between 2003 and 2011. All told, Martinez accumulated 21 criminal-history points, far more than the 13 needed for a criminal-history category of VI. The advisory Guidelines range for a total offense level of 27 and a criminal-history category of VI is 130 to 162 months' imprisonment. But the maximum sentence for possessing an unregistered, short-barrel shotgun is ten years' imprisonment. 26 U.S.C. § 5871

. Thus, the advisory Guidelines range became 120 months' imprisonment. U.S.S.G. § 5G1.1(a).

Before the sentencing hearing, Martinez objected to the PSR's four-level enhancement for his possessing the shotgun in connection with the Torrington burglary, arguing that his alleged participation in the burglary was “not readily provable nor supported by credible evidence.” R. vol. 2 at 39.

F. Sentencing Hearing

On March 31, 2015, the district court held a sentencing hearing. To support the PSR's four-level enhancement under

U.S.S.G. § 2K2.1(b)(6)(B)

, the government called Special Agent Wright as a witness. Agent Wright testified about ATF's investigation. He said that, soon after obtaining the shotgun, he ran a trace on its serial number and learned that June Palomo had bought the shotgun from a Walmart in Scottsbluff, Nebraska. Agent Wright also discussed what Martinez had told him during Martinez's interview. Finally, Agent Wright testified about portions of the Torrington police reports memorializing their interviews with Hernandez. Martinez's attorney objected to Agent Wright's testimony about the Torrington police reports, arguing that the “multiple...