United States v. John W. Martinez

lаx standards of even the filed flunked rules. the federal pleading under notice

Affirmed. America,

UNITED STATES

Plaintiff-Appellee, MARTINEZ, Defendant-

John W.

Appellant.

No. 96-1878. Appeals,

United States Court

Seventh Circuit.

Argued Feb. 1997. Aug. 1997.

Decided Barry Rand El- (argued), E. Ex

Charles den, Appeals, of the United Chief of Office Division, Attorney, Appellate Criminal IL, Plaintiff-Appellee. Chicago, II, Chicago, “burglary,” Stephen (argued), K. Milott for was consistent with which is ex- plicitly felony Defendant-Appellant. included as a violent under the burglary along ACCA. The EASTERBROOK, RIPPLE, Before and dispute othеr convictions not under mandates MANION, Judges. Circuit application 15-year minimum. Mar- erred, argues by tinez first conclud- MANION, Judge. Circuit was consistent with pleading guilty possession ‍‌‌​​​​‌‌​‌​​​‌‌​​‌‌‌​​​​‌‌​​‌‌‌‌​​​​‌​‌‌‌​​​​​‌​‍After burglary, by considering and mili- second by pursuant plea agree- firearm a felon to a tary meaning court within the ment, Martinez sentenced to fifteen John Additionally, argues Act. Martinez the dis- years appeals, prison. arguing He now trict court violated the improperly that he was sentenced under the by “interpreting” clause his court-martial Armed Career Criminal Act because the dis- conviction. counting

trict court erred in an earlier mili-

tary felony. court-martial as a affirm. We II. Before we address the merits of I. appeal, pause point why felon, A three-time convicted John Mar- unnecessary: that should have been Mar selling tinez was arrested after firearms to plea agreement tinez entered into a in which agent an undercover with the Bureau of Al- 7(d): stipulated paragraph pur he “For cohol, Tobacco, and Firearms. Still unaware poses guidelines promulgated agent’s identity, of the undercover true and the United States Commission suspecting instead a friend had turned him Code, pursuant to Title United States in, agent Martinez instructed the to lie to parties agree Section ... [that] protect investigators in order to Martinez 4B1.4(b)(3)(B), [p]ursuant § to Guideline finger and his friend. Based on these base offense level for the offense is increased events, Martinez was indicted on four felon- to level 33 because defendant is an Armed (18 in-possession-of-firearms counts U.S.C. meaning Criminal within Career of that § 922(g)) tampering and one witness count Guideline.” Martinez now that he is (18 1512(b)(1)). plea Pursuant to a not an Armed Career Criminal within agreement, pleaded guilty Martinez to one of meaning of that Guideline. Either he or govern- firearms counts. return the not; ways. he is he cannot it have both remaining ment counts. dismissed Be- may While he believe he has a colorable cоnvictions, prior among cause of them a that he is not an Armed Career general court-martial conviction under the Criminal, below, reject a claim we Martinez (UCMJ) Uniform Code of Justice knowingly waived that when he 1976,the court sentenced Martinez under the agreement into govern entered with the Armed Career Criminal return, ment. government dismissed 924(e) (ACCA Act) mandatory to a mini- chargеs other contained the indictment. mum years. According presen- of 15 to the right While he reserved a to correct “errors report, investigation application tence absent interpretation,” in calculations or the clear minimum, mandatory of this Martinez’s sen- language referring to Armed Career Crimi tencing range would have been 135 to 168 nal cannot now be discounted as an error in (11 years, years). months to 14 months Also, interpretation. reserva appeal, disputes On specific the court’s tion does not take back the more inclusion of his court-martial stipulation offense as a in which he admits both the prior significance violent under the Act. That existence and of his convic “housebreaking” may UCMJ conviction for get pоr result- tions. Nor a defendant out of nighttime entry plea agreement; ed from Martinez’s unlawful tions of he withdraw into, from, and theft of plea agreement entirety items the Guantana- from the in its Bay Corps mo Exchange. go plea Marine The dis- to trial or he must abide trict court entirety. concluded that in United States v. (7th sions and contained in concessions Wenger, proceeded pick agreement, and choose which but rather not do What which he argument. wishes to abide merits of the portions he inappro- thereby at 283. “It is appeal. argument, Id. waived the waiver or at wishes pencil agreement, priate to take a blue the least forfeited it. United v. Bak (7th Cir.1994). retrospect er, 154, in provisions that removing the 40 160 F.3d Thus Id. wishes were not there.” obliged the defendant address the merits of signed the admit- Martinez When an Martinez’s claim he is not Armed purposes of the ting that despite “[f]or Career Criminal his admission in Armed Career ... defendant is an guidelines plea agreement the that he in fact was such Criminal,” knowingly right the waived a criminal. guidelines that for of the

contend not an Armed Career Criminal.

he is III. surprised we are to find no mention So first Martinez that a government’s in brief. At oral waiver the “housebreaking” conviction for under the government advised argument the qualify felony does as a violent UCMJ not “principal” argument before “initial” and ACCA, provides under the ACCA. The which plea court had been that the the district 15-year mandatory pre a minimum for three Martinez, that once agreement bound but felonies, felony” vious violent “violent defines argument “took on the is thе district court “burglary.”1 to include Martinez contends agreement, once despite plea sue does under UCMJ not they ruling instead of the district court “burglary” constitute under the ACCA. In plea agreement, went to bound were support argument of his he notes that merits, argu ... not believe the we do separate contains a offense of “bur UCMJ automatically been waived vir ment had 129, glаry,” Article and that he was not con appears It plea agreement.” tue of that offense.2 victed despite the terms of from the record that start, fails because the plea right from the at agreement, that, require does not in order to be hearing, for ACCA change plea in counsel “burglary” an of- considered under the disputed whether the UCMJ con officially “burglary.” The application of the ACCA. fense be termed triggered viction plea Supreme Taylor accepted change with Court The 2143, 2158, dispute parties 495 109 resolving the and the (1990), generic burgla- held that proceeded paragraph to treat as if L.Ed.2d 7(d) ry qualifying a offense under 18 part agree a constitutes were debatable 924(e)(2)(B): person has up § been “[A] a result the issue was taken U.S.C. ment. As burglary purposes of sentencing. [the convicted of pleadings in the and at crime, any regard- if that Martinez he is convicted Act] never contended label, having the less of its exact definition or waived this the admis had 129, ACCA, 924(e) § provides, 10 U.S.C. ‍‌‌​​​​‌‌​‌​​​‌‌​​‌‌‌​​​​‌‌​​‌‌‌‌​​​​‌​‌‌‌​​​​​‌​‍UCMJ Article titled in rele- 2. Title 1. The “Burglary” provides: part: vant who, (e)(1) chapter Any person subject with person to this In the casе of a violates who punishable 922(g) previ- intent to commit an under this title and has three offense section 118-128), (articles by any sections 918928 of this title ous court referred convictions enters, nighttime, the dwell- felony in the 922(g)(1) title for a violent ... breaks and of this another, guilty burglary house of is committed on occasions different from one an- other, punished di- imprisoned shall be as a court-mаrtial ... be ... not less than shall years.... rect. fifteen contrast, (e)(2)(B) Article felony” any UCMJ "violent means term "Housebreaking” provides by imprisonment punishable for a term titled crime (ii) chapter burglary, Any person who unlaw- exceeding arson, year, to this one ... is that — extortion, explosives, fully building of another enters the or structure or involves use of presents offense there- with intent to сommit a criminal involves conduct that or otherwise pun- guilty be potential physical injury and shall risk of to an- serious as a court-martial direct. ished other .... unprivileged sentencing of unlawful or enhancement based on basic elements conviction). into, in, entry remaining building or Martinez’s conviction for house- structure, intent to commit a crime.” breaking under the was the result of UCMJ court, too, court-martial, This has held that unarmed thus the tribunal unoccupied, generic burglary of an nonresi “any qualifies as court.” structure, without the or threat of dential use justice Our view court of force, a violent qualifies as under supported by precedent such a court is Gallman, Act. States v. United concluding the other circuits. that a (7th Cir.1990). qualified court-martial under Martinez was eourtmartialed and convicted here, predecessor statute to the one at issue UCMJ, violating Article 130 of the titled explained: the Sixth Circuit “housebreaking,” the elements of which are language The of statute is not limited (1) entry building unlawful of a or structure judgments by rendered Article III (2) of another and the intent to commit a un- courts. Courts martial are authorized v. criminal offense therein. United States I der Article of the Constitution.... Hart, 693, 695, 49 C.M.R. 1975 WL 15890 [Tjheir judgments are to “be accorded the (A.C.M.R.1975) (stating elements of house- finality and eonclusiveness toas the issues breaking). penalty up years The to five involved which attend the of a Because incarceration. these are the same civil court in a of which it legally case generic burglary spelled elements of cognizance.” take Taylor, Martinez’s court-martial conviction qualifies as a violent A. under the ACC Lee, 917, (6th United States v. 428 F.2d 920 Cir.1970) (quoting Grafton Martinez next contends that a mili 749, 751, 206 U.S. 51 L.Ed. tary court is not a “court” within the mean (1907)). concluded, 1084 The court “[t]he ing requires of the Act which that the convic finding of the court-martial that [the defen- by “any tions be court referred to crime, judg- a dant] had committed and the 922(g)(1).” Lоoking 922(g)(1), to section year, ment of sentence in excess of one nothing that find defines or limits the term judgment entitled to the eonclusiveness of a “court,” only requirement that a conviction of an A'ticle III court.” Id. The Ninth Cir- any have been “in court” in the course of general cuit has held likewise: “[A] court- prohibiting possession by of firearms a felon. meaning martial is a ‘court’ within the оf 18 Certainly “any military court” includes a possession] 922(g)(1) [felon and a court, adjective “any” expanding conviction, such as for which an [defendant’s] term “court” to include “one or some indis punishable exceeding individual is for a term kind”; criminately of whatever “one that is year, one amounts to a ‘crime’ for selected without restriction or of limitation § 922(g)(1).” of United States v. Mac- choice”; or “all.” Webster’s Third New In Donald, (9th Cir.1993). 967, 992 F.2d 970 Dictionary, ternational 1991. compel Guidelines final is that the military prin court’s use of convictions for sen district violated the constitutional tencing resulting ciple separation powers enhancement: “Sentences of of when it took military imposed cognizance military offenses are if comput counted of a conviction in by special argues courtmartial. his civilian Sen sentence. Martinez by imposed summary tences “interpreting” military courtmartial that conviction proceeding or Article 15 are not counted.” the court takes on the function of another § 4A1.2(g). USSG See also United States v. branch of and that doing so re (11th Wilson, 927 “illegal aggrandizement power” F.2d 1189-90 Cir. sults in of 1991) (even uniquely military judiсial conviction of within the branch. This being qualifies presented absent without leave under was not to the district court. It is § 4A.1.2(g) history only for calculation of criminal therefore forfeited and reviewed for Locke, Sertich, category); plain United States v. 918 F.2d error. United States v. 95 (9th Cir.1990) (7th Nevertheless, (applying guideline to F.3d First, the Frank quiries of test. he was sen- claims which Martinez if statute under pоwers ability separation of doc- of the district court to “[t]he violated the tenced trine, misinterpret charged to reverse his required be such a violation [the we would he had raised the military charge “housebreaking”] whether or not code’s sentence Pacemaker court. military in the district and sentence under law into some- issue Cf. Instromedix, America Diagnostic Cliniс thing stronger military than the court intend- (9th Cir.1984) (that part be, charge illegal ed that is an obvious and pro- powers doctrine separation of aggrandizement power.” of the Court’s Sec- of the constitutional struc- integrity ond, tects the if federal courts “are parties). waived ture cannot be re-interpret allowed to decisions of impair ability tribunals” it will not contend that thе ACCA Martinez does by “creating] courts to function violates the on its face specter interpretation which additional ACCA, that the And he concedes doctrine. rendering military must be him, any specif- not violate applied to does as any in treating charges arising out of viola- Instead, he the Constitution. provision ic appears tions of the Code.” Martinez determining that a argues that possibility argue that a court- constituted martial conviction be considered a ACCA, the district “burglary” under impair conviction a civilian court will the powers separation of non- court “violated the military’s ability charge, try, punish to and in deter- textually.” Martinez claims military offenses. court violated the mining whether the district apply a powers, we should separation of determining its merits Whatever which, approach” test three-part “pragmatic composition whether the structure and of the source, as the derives although not identified Sentencing U.S. Commission violated the Frank, United from verbatim doctrine, powers separation of we are not Frank, upholding (3d F.2d 992 appropriate convinced the test the tool sep- Sentencing against a the Guidelines sentencing to the with which examine scheme powers challenge, the Third Cir- aration of objects.3 No such com- to which a functional test applied what it termed cuit plex intergovernmental is at issue. structure inquiring whether: complain only to Martinez seems (1) government of assumes one branch offense, examining the elements of a UCMJ properly entrusted to anoth- ‍‌‌​​​​‌‌​‌​​​‌‌​​‌‌‌​​​​‌‌​​‌‌‌‌​​​​‌​‌‌‌​​​​​‌​‍function more court has somehow taken on a role that the (the test); (2) aggrandizement-of-power er constitutionally belongs military within the impair functions that one branch assumes presume execu- (by which we he means the perform ability another branch to the of specified). although it is never tive branch (3) imposition of proрer functions and passed of But the branch impairs that functions on one branch impact prior of the ACCA and dictated ability perform its own func- branch’s to to which the was the same branch convictions (the tests). impairment tions grants power make “[t]o Constitution omitted). (citations Id at 1013 Regulation of Rules for the Government and Const., Forces.” U.S. the land and navel Martinez claims that the district court’s States, 14; Solorio v. United I, military Art. 8 cl. the elements of his consideration of in- 107 S.Ct. implicates the first and third 483 U.S. 991(a); developed ence the United States. the Frank test to of 3. The Third Circuit Frank, of aspect two-pronged separation 864 F.2d at 1008. The inclusion both resolve one of presidential appointees developed judges in a powers challenge. to fеderal The test was judicial unique branch commission located within determine whether structure binding setting up guidelines charged on composition with of the U.S. Commission judiciary powers. and the executive branch im- separation inde- both the ‘‘[A]n violated the judicial plicated power branch to pendent judicial both the commission of the branch of States,” judg- "perform impоsing its core function of the Commission consists of seven United President, members, entrusting executive appointed by voting ments” and of the laws. Id. at judges branch the enforcement must be federal selected three of whom by the Judicial Confer- 1013-14. from a list recommended (1987). “Exercising this author to L.Ed.2d 364 the extent we would civil court’s find- ity, Congress empowered has courts-martial ings Taylor on the samе issues. And di- try proscribed for the crimes servicemen cognizance just rects us to take those 438-39, by the Id. at 107 S.Ct. at UCMJ.” so, doing issues. the district court nei- jurisdiction 2926-27. Courtmartial is based powers delegated ther took on to the mili- accused, status of the not on tary, impair military’s ability nor it did at 439- matter UCMJ. Id. try, charge, and sentence in the future 40, 107 at 2927-28. Martinez’s convic S.Ct. unlawfully buildings those who enter military justice tion occurred in a court of Accordingly, the intent to commit a crime. mili rather than a civil because of his proposed by even the Frank test status, tary not because of constitutional Martinez, separation no violation powers. Cf. Grafton sentencing resulted from his scheme. 333, 345-48, 206 U.S. (1907) (“civil 751-52, 51 L.Ed. 1084 tribunals IV. disregard cannot of a correctly The district court considered court-martial”; jur where both courts derive elements of Martinez’s court-martial convic- authority Congress, isdiction and Taylor’s tion to conclude that it satisfied acquittal charges on murder in the generic burglary test. Accordingly, we af- jeopardy court attaches and bars retrial firm Martinez’s sentence under the ACCA. court). civilian pro- Even were we to consider the test RIPPLE, Judge, concurring. Circuit Martinez, posed by we fail to see how the pleased join my I am colleagues in then- judicial recognition branch’s holding previous that the defendant’s convic- impact convictions would either the mili- tion for under Article 130 of tary’s power shape charges, or sentence Justice, the Uniform Code of guilty charges. those found of those felony” constitutes ‍‌‌​​​​‌‌​‌​​​‌‌​​‌‌‌​​​​‌‌​​‌‌‌‌​​​​‌​‌‌‌​​​​​‌​‍a “violent fact, by following guidance Taylor, of the Armed Career Criminal 495 U.S. at 110 S.Ct. at and con- 924(e). that, only I note sidering not the name of the offense but its view, my pow- defendant’s elements, the district court avoided “reinter- totally ers without merit preting” the UCMJ offenses and instead fo- deserving summary of far more treatment explicit Tay- charges. cussed What than opinion, the court’s in an abundance of “burglary” lor tells us is that the term caution, gives it. mere shorthand for a set of If elements. elements, violating convicted of those agree I government ought cannot that the punishment. ACCA mandates additional argued to have that the defendant’s substan- The UCMJ set out the elements of the tive contention about the crime for which a court convicted plea agreе- was barred the terms of the Martinez. and sentenced The district court ment. The was far too elements, interpret did not those it deferred preclude vague argument. the defendant’s Supreme to them. The Court’s de- Grafton Counsel for the quite re- deference; requires cision this it requires sponsible declining not to submit the un- judgments that courtmartial “be accorded point. Country tenable The court and the finality and conclusiveness to the is- as when served well counsel for the United judgments sues involved which attend the professional States makes such balanced a civil court in a ease of which it legal- respect ground upon ly Grafton, cognizance.” take at judgment which a obtained the district added). (emphasis at 751 S.Ct. ought to be defended.

issues involved Martinez’s conviction were whether he violated had

each of the elements of the offense. The had, ‍‌‌​​​​‌‌​‌​​​‌‌​​‌‌‌​​​​‌‌​​‌‌‌‌​​​​‌​‌‌‌​​​​​‌​‍having found that he this required

court is findings defer to those

Case Details

Case Name: United States v. John W. Martinez

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 20, 1997

Citation: 122 F.3d 421

Docket Number: 96-1878

Court Abbreviation: 7th Cir.