430 F. App'x 406
6th Cir.2011Background
- Martinez pled guilty under a Rule 11 plea agreement to conspiracy to possess with intent to distribute 400–700 kg of marijuana, 21 U.S.C. § 846.
- District court imposed the mandatory minimum term of 60 months and four years of supervised release based on the plea and PSR calculations.
- PSR set base offense level at 28 (drug quantity table) and, after acceptance of responsibility, total offense level 25, but inconsistently listed criminal history as II (two points) while using I for advisory range.
- 1996 Arizona theft conviction contributed two points under U.S.S.G. § 4A1.2, allegedly stale under § 4A1.2(e), yet sentencing proceeded with the II designation.
- Martinez did not object at sentencing; the court and counsel affirmed the calculations, and Martinez received the 60-month mandatory minimum.
- The government moved to dismiss the appeal, invoking the appeal waiver in Paragraph 16 of the plea agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal waiver bars review of the sentencing challenge. | Martinez argues miscalculated history violated waiver. | Martinez contends the district court erred in criminal-history scoring, affecting safety-valve eligibility. | Waiver bars review; appeal dismissed. |
| Whether the 1996 theft conviction was stale and improperly counted in criminal history. | Martinez contends it should be excluded under § 4A1.2(e)(2). | Martinez’s counsel and district court treated it as part of history; government concedes improper counting. | The two-point calculation was improper and should be excluded; however waiver precludes relief on appeal. |
Key Cases Cited
- United States v. Decker, 370 F. App’x 671 (6th Cir. 2010) (misdating and stale-criminal-history counting under § 4A1.2)
- United States v. Deitz, 577 F.3d 672 (6th Cir. 2009) (limitations on criminal-history computation and safety-valve impact)
- United States v. Brogdon, 503 F.3d 555 (6th Cir. 2007) (defendant’s waiver considerations and sentencing-appeal restrictions)
- Sotirion v. United States, 617 F.3d 27 (1st Cir. 2010) (garden-variety miscalculation within appellate waiver context)
- United States v. Thomas, 605 F.3d 300 (6th Cir. 2010) (strict interpretation of waivers; safety-valve and related limits)
- United States v. Smith, 344 F.3d 479 (6th Cir. 2003) (valid waivers preclude review of non-waived sentencing issues)
- United States v. Luebbert, 411 F.3d 602 (6th Cir. 2005) (scope of appeal waiver and Booker-related considerations)