UNITED STATES of America, Plaintiff-Appellee v. Fernando MARTINEZ, also known as Silent, Defendant-Appellant.
No. 15-1004.
United States Court of Appeals, Eighth Circuit.
Submitted: June 12, 2015. Filed: May 3, 2016.
821 F.3d 984
Under the Sentencing Guidelines, “[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”
Iceman committed the offense of strangulation in July 2013 when no corresponding guideline provision existed. A month before Iceman‘s sentencing, the Sentencing Commission enacted the Aggravated Assault guideline, which corresponds with convictions under
This argument is contrary to the record. At sentencing, the government acknowledged the Aggravated Assault guideline was inapplicable to Iceman‘s sentence as his offense occurred prior to its promulgation. The district court considered all evidence presented at the sentencing hearing and ultimately determined the Domestic Violence guideline was the most analogous provision because it accounted for Iceman‘s intimate relationship with his victim. There is no evidence in the record to indicate the district court sentenced Iceman in accordance with the Aggravated Assault guideline. The district court‘s sentence therefore does not violate the Ex Post Facto Clause. We find that the district court committed no error—let alone plain error—in imposing its sentence.
III
For the foregoing reasons, we affirm the district court.
Matt R. Molsen, AUSA, Omaha, NE, for Appellee.
Before LOKEN, BYE, and KELLY, Circuit Judges.
BYE, Circuit Judge.
Fernando Martinez pled guilty to possession of fifty grams or more of methamphetamine with the intent to distribute. The district court found Martinez to be a career offender based in part on the residual clause of
The government concedes Martinez is no longer a career offender under the guidelines following the United States Supreme Court‘s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015), but asserts no remand is necessary because the district court imposed a reasonable alternative sentence that renders any error harmless. Because we conclude otherwise—that the district court‘s alternative sentence is substantively unreasonable—we reverse and remand for resentencing.1
Martinez is a twenty-seven-year-old father of three who pled guilty in August 2014 to possession of fifty grams or more of methamphetamine with the intent to distribute. Prior to sentencing, a probation officer prepared a presentence investigation report (PSIR), which recommended the district court find Martinez to be a career offender under
When Martinez was eighteen, he shot a rifle at two individuals standing outside a residence as part of a gang-related drive-by shooting. Several individuals, including two young children, were at the residence at the time of the shooting, but no one was injured. Martinez was arrested and charged with unlawful discharge of a firearm, a violation of Nebraska law. Martinez posted bond and was released from custody while his case was pending.
A few months later, Martinez failed to appear for his pretrial conference and the court issued a bench warrant for his arrest. Later that day, officers spotted Martinez walking with another individual. The officers approached Martinez and one held him by the wrists and grabbed his handcuffs to place him under arrest. Before the officer handcuffed him, Martinez twisted, threw his elbow toward the officer (without making contact), and ran from the officers for a short distance until he was tackled and arrested. For this conduct, Martinez was charged with escape while under arrest on a felony charge, also a violation of Nebraska law. He pled no contest to the charge.
In early 2008, Martinez was sentenced to six- to eight-years’ custody for his unlawful discharge of a firearm conviction, and two- to three-years’ custody for his escape conviction. He was paroled on both charges in November 2010. From the date of his release until his arrest in March 2014 in this case, his only scoreable offense was a 2013 conviction for unauthorized use of a propelled vehicle, for which he paid a $200 fine.
Martinez objected to the PSIR‘s career offender recommendation on the ground that his conviction for escape while under arrest on a felony charge was not a crime of violence. Prior to his sentencing hearing, Martinez filed a brief arguing his escape conviction was not a crime of violence because it did not “involve [ ] conduct that presents a serious potential risk of physical injury to another,” as required under the residual clause of
At Martinez‘s sentencing hearing on December 18, 2014, the district court found Martinez had a base offense level of 32. After reviewing the charging documents and the change of plea transcript from Martinez‘s Nebraska escape conviction, and hearing testimony from Investigator Chris Anderson regarding the general circumstances that arise when making a felony arrest, the district court found the escape conviction was a crime of violence under the residual clause of
The district court alternatively found that even if Martinez was not “technically” a career offender under the guidelines, it
Martinez timely appealed, arguing the district court erred by finding his conviction for escape was a crime of violence and his sentence was substantively unreasonable. After briefing was complete, the Supreme Court held in Johnson that the statutory residual clause of the Armed Career Criminal Act—which contains language identical to the residual clause of
II
The government concedes Martinez‘s conviction for escape is not a crime of violence, post-Johnson, but it argues the district court‘s (understandable) guidelines error did not affect the outcome of sentencing because the district court would have sentenced Martinez to 262 months’ imprisonment even if he is not a career offender under the guidelines. We assume without deciding that Johnson applies to the residual clause of the guidelines. See United States v. Taylor, 803 F.3d 931 (8th Cir.2015); see also United States v. Benedict, 815 F.3d 377, 385-86 (8th Cir.2016) (assuming without deciding that Johnson applies to the residual clause in the sentencing guidelines).
We must first determine whether Martinez properly preserved a Johnson-type vagueness challenge to the guidelines. To preserve a claim of error, the defendant must “inform [ ] the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party‘s objection to the court‘s action and the grounds for that objection.”
We find Martinez preserved his vagueness challenge to the residual clause of the guidelines because he timely raised this objection before his sentencing hearing. Prior to sentencing, Martinez filed a brief objecting to the PSIR and explaining why his escape conviction did not qualify as a crime of violence. The government filed a response. In his reply, Martinez argued that treating his conviction for escape as a crime of violence under the residual clause of the guidelines could raise constitutional vagueness issues, and at sentencing the district court described Martinez‘s reply as “extremely well-written” and noted it was “very familiar with the issues.” Therefore, Martinez timely and specifically raised his constitutional vagueness objection to the district court, and he preserved his vagueness objection for appeal. See United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.2005) (en banc) (holding defendant may preserve Booker challenge by arguing guidelines were unconstitutional) (citing United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005)).
Because Martinez preserved his guidelines challenge, we review the district court‘s career offender finding for harmless error. “Incorrect application of the Guidelines is harmless error where the
The government argues the district court‘s guideline error was harmless because the district court would have varied upward to a guideline range of 262 to 327 months’ imprisonment even if Martinez‘s conviction for escape did not make him a career offender. We disagree that this error was harmless, however, because the district court‘s alternative sentence was unsupported by the law. Assuming Martinez was not a career offender, his guideline range would have been 121 to 151 months’ imprisonment. The district court, however, noted the “especially violent nature of the defendant‘s behavior reflected throughout the presentence report,” and it pointed to two specific factors: (1) Martinez‘s prior convictions for unlawful discharge of a firearm and escape while under arrest on a felony charge, and (2) evidence the government presented at sentencing that Martinez had ties to local gangs. Therefore, for its alternative sentence the district court varied upward to a guideline range of 262 to 327 months’ imprisonment because it found Martinez should still be considered a career offender even if he was not “technically” a career offender.
We infer from this statement that the district court believed the escape conviction was a crime of violence—and Martinez was a career offender—whether the guidelines classified it as a crime of violence or not. In other words, the district court sentenced Martinez to an additional nine years2 because, as a nineteen-year-old, Martinez threw an elbow at a police officer without striking the officer and ran from police for a short distance. This severe variance is unreasonable.
The district court‘s other justifications do not support the degree of the upward variance either. First, Martinez‘s convictions do not warrant such a severe upward variance. Martinez‘s two convictions undoubtedly demonstrate serious, violent behavior, but the guideline range already accounted for these prior convictions, each of which received three criminal history points. While a district court may consider factors already taken into account in the guideline range, “substantial variances based upon factors already taken
Second, the evidence the government presented relating to Martinez‘s gang ties does not justify a nine-year upward variance either. The government presented evidence Martinez appeared in music videos along with other members of the East Side Locos prior to his incarceration. He also appeared with other East Side Locos gang members in photographs. While these photos and videos show Martinez‘s gang ties, they do not depict Martinez actively engaging in any violent behavior. And, more importantly, they do not depict such egregious, violent behavior that they warrant the substantial upward variance the district court imposed.
While the district court does not need to categorically rehearse the
III
The judgment is vacated, and the case remanded for resentencing.
LOKEN, Circuit Judge, concurring.
Although I agree with Judge Colloton‘s dissent in United States v. Taylor, 803 F.3d 931, 933-34 (8th Cir.2015), our panel is bound by the contrary decision of the panel majority in Taylor. Therefore, I concur in the decision to remand for resentencing, with the district court free to consider on remand “whether the residual clause of the career offender guideline is unconstitutional.” Id. at 933.
I disagree with the court‘s conclusion that the district court‘s alternative 262-
Second, the court complains that Martinez‘s guidelines range already accounted for his prior convictions because each received three criminal history points. Again, this reasoning is contrary to well-established sentencing principles under the advisory guidelines. “[F]actors that have already been taken into account in calculating the advisory Guidelines range can nevertheless form the basis of a variance.” United States v. David, 682 F.3d 1074, 1077 (8th Cir.2012).
Third, the court criticizes the district court “because it found Martinez should still be considered a career offender even if he was not ‘technically’ a career offender.” Supra at 989-90. The criticism is unwarranted. Leaving aside whether the residual clause in
The Nebraska escape statute, § 28-912, provides that “(5) Escape is a Class III felony where: (a) The detainee was under arrest for or detained on a felony charge ... or (b) The actor employs force, threat, deadly weapon, or other dangerous instrumentality to effect the escape.” To determine whether a prior offense was a crime of violence, we apply the modified categorical approach as construed in Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). In United States v. Tucker, 740 F.3d 1177, 1181 (8th Cir.2014) (en banc), we held that the subsections of § 28-912 are “divisible” of
Though I disagree with the court‘s reasoning, given the uncertainty that continues to surround these sentencing issues, and the severe impact of the career offender issue on Martinez‘s advisory guidelines range, I agree with the court that the government has failed to establish that the district court‘s alternative sentence renders any underlying career offender error harmless. Rather, I conclude that justice is best served by a remand for resentencing that of course will include whether to vary upward from the court‘s final guidelines range determination. Therefore, I concur.
JAMES B. BYE
CIRCUIT JUDGE