United States v. Antonio Martinez

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2021
• Docket: 20-10056
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10056

Plaintiff-Appellee, D.C. No. 1:14-cr-00158-LJO-SKO-1

v. MEMORANDUM* ANTONIO RENE MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Argued and Submitted March 1, 2021 San Francisco, California

Before: WARDLAW and BERZON, Circuit Judges, and CHEN,** District Judge.

Antonio Rene Martinez appeals from the district court’s judgment and

challenges the 41-month sentence imposed following his guilty-plea conviction for

illegal reentry in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. U.S.C. § 1291, and we affirm.

Martinez was charged with illegal reentry. After rejecting proffered plea

agreements, Martinez entered an open plea of guilty and was sentenced to 41

months in prison.

Martinez filed a pro se motion to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel (“IAC”).

After an evidentiary hearing, the district court denied the § 2255 motion. The

district court found that Martinez had been correctly advised of his sentencing

guidelines exposure, determined that Martinez’s priority had been to preserve his

appellate rights in order to maintain the best chance of remaining lawfully in the

United States, and rejected Martinez’s claim that he received ineffective assistance

regarding his ability to attack his underlying deportation order. The district court

also denied Martinez’s IAC claim challenging counsel’s failure to file a direct

appeal on Martinez’s behalf, but issued a certificate of appealability on that issue.

Martinez appealed. The parties subsequently agreed that Martinez should be

allowed to take a direct appeal in light of Garza v. Idaho, 139 S. Ct. 738 (2019).

Upon the parties’ request, this court vacated the district court’s order denying

Martinez’s § 2255 motion, and the district court re-entered the criminal judgment.

2 20-10056 This appeal followed.1

1. Martinez argues that the district court’s failure to comply strictly with

Rule 11, in particular sub-sections (b)(1)(M), (b)(1)(O), and (b)(2), constituted

reversible error. Because Martinez did not object during the plea colloquy, we

review for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 730–36 (1993).

To establish plain error, Martinez must demonstrate a “reasonable

probability that, but for the [Rule 11] error, he would not have entered the plea.”

United States v. Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005) (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). In undertaking that inquiry,

the court considers, inter alia, “the overall strength of the Government's case and

any possible defenses that appear from the record,” “evidence tending to show that

a misunderstanding was inconsequential to a defendant's decision, [and] evidence

indicating the relative significance of other facts that may have borne on his choice

regardless of any Rule 11 error.” Id. (quoting Dominguez Benitez, 542 U.S. at 84–

85).

In this case, the district court deviated significantly from the requirements of

1 This appeal is from the conviction only. It does not cover the IAC claims concerning the guilty plea raised in the earlier § 2255 motion, and we express no view as to the merits of those claims or whether or how Martinez may seek to renew those claims once the conviction becomes final.

3 20-10056 Rule 11. However, Martinez has not demonstrated a reasonable probability that

the errors affected his decision to plead guilty. While the record shows that

Martinez equivocated about accepting the plea agreements offered by the

government, he did not equivocate about his ultimate decision to plead guilty. In

his post-conviction letters to the court, Martinez repeatedly challenged the length

of the sentence he received, rather than the guilty plea itself. He also proposed

accepting one of the previously rejected plea offers the government had proffered.

Even in his motion for reconsideration, Martinez did not request to withdraw his

plea and go to trial. Instead, he asked the court to impose the lower sentence

contemplated in the plea agreements offered by the government.

Moreover, the government’s overall case against Martinez was strong; had

he gone to trial and been convicted (a likely result), his total offense level would

no longer reflect a three-point reduction for acceptance of responsibility under

U.S.S.G. §§ 3E1.1(a) and (b). Instead, Martinez would have faced a higher

Guidelines range, 57–71 months. Thus, even though Martinez contends that had

he been asked by the judge whether any promises had been made to him, he might

have responded that his lawyer had led him to expect a shorter sentence, there is no

reasonable probability that Martinez, upon being disabused of any guarantee of a

shorter sentence if he pled guilty, would have risked a trial that likely would have

resulted in an even longer sentence.

4 20-10056 We conclude there is no reasonable probability that the Rule 11 errors

impacted Martinez’s decision to plead guilty. We do note that as Rule 11’s

requirements are meant to avoid the need to inquire into the voluntariness of a plea

after-the-fact, see McCarthy v. United States, 394 U.S. 459, 465–66 (1969), careful

adherence to them benefits both the litigants and the courts by eliminating the

necessity for the sort of retrospective inquiry we have just conducted.

2. Martinez next contends that the district court violated Federal Rule of

Criminal Procedure 32(i)(1)(A) at sentencing by failing to verify that he had

reviewed and discussed the presentence investigation report (“PSR”) with counsel.

We review for harmless error a district court’s failure to verify that a defendant

read a presentence report and discussed the same with his counsel. United States v.

Soltero, 510 F.3d 858, 863 (9th Cir. 2007). The error is harmless “if it is clear that

no prejudice resulted.” Id. (quoting United States v. Davila-Escovedo, 36 F.3d

840, 844 (9th Cir. 1994)).

As Martinez concedes, any error was harmless because he has “‘made no

affirmative allegation that he failed to read the report’ and review it with his

attorney,” nor has he “identified—either to the district court or to this court—any

fact in the PSR he would have disputed had the sentencing judge afforded him the

opportunity.” Id. (quoting Davila-Escovedo, 36 F.3d at 844) (emphasis in

original). Accordingly, the district court’s Rule 32(i)(1)(A) error was harmless.

5 20-10056 AFFIRMED.

6 20-10056