United States v. Martinez

1 F.4th 788

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 14, 2021
• Docket: 20-2126
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 14, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-2126

ERIC MARTINEZ,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:19-CR-00565-JCH-1) _________________________________

Aric G. Elsenheimer, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellant.

David Patrick Cowen, Assistant United States Attorney (and John C. Anderson, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee. _________________________________

Before TYMKOVICH, Chief Judge, KELLY, and McHUGH, Circuit Judges. _________________________________

KELLY, Circuit Judge. _________________________________

Defendant-Appellant Eric Martinez appeals from the district court’s imposition

of a 27-month sentence for his burglary conviction under the Indian Major Crimes Act. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.

Background

In February 2016, Mr. Martinez and two accomplices burglarized a residence

within the boundaries of the Navajo Nation in McKinley County, New Mexico.

During the burglary, Mr. Martinez used a hammer to break a hole in the front door

near the doorknob to gain entry to the residence. An accomplice pried open the back

door. Mr. Martinez placed the hammer on a table in the living room. He and his

accomplices took valuable items from the residence, including electronics, jewelry,

and ceremonial shawls and robes.

Mr. Martinez was charged under the Indian Major Crimes Act (IMCA), which

applies state criminal codes to “assimilated” offenses committed in Indian Country

that are not defined under federal law. Mr. Martinez ultimately pled guilty to an

assimilated New Mexico burglary offense under N.M. Stat. Ann. § 30-16-3. At

sentencing, Mr. Martinez argued that federal law permitted the district court to

impose a conditional discharge. This would allow a term of probation without entry

of a judgment of conviction, a sentence possible had his case been adjudicated in

New Mexico state court. He also objected to a two-level sentencing enhancement

under U.S.S.G. § 2B2.1(b)(4) for possessing a dangerous weapon on the basis that he

did not use the hammer as a weapon during the burglary.

The district court rejected these arguments. The district court ruled that a

conditional discharge was not available in federal court and that Mr. Martinez’s

2 possession of the hammer during the burglary warranted the two-level enhancement.

The district court additionally found that a conditional discharge would not be

appropriate under the circumstances even if it were available, and sentenced Mr.

Martinez to 27 months and a year of supervised release.

Discussion

In reviewing the district court’s application of the Sentencing Guidelines, we

review legal questions de novo and factual findings for clear error. United States v.

Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).

A. Conditional Discharge

As an initial matter, the government notes that we can affirm without ruling on

the availability of a conditional discharge in federal court. The district court decided

that even if a conditional discharge were available, it was not appropriate in this case.

Mr. Martinez did not address this argument in his briefing. However, at oral

argument he contended that we should reach the issue because the district court

“started at the wrong place” in determining Mr. Martinez’s sentence. The

government responds that any such error would have been harmless. We need not

reach these arguments, however, because we find that the district court did not err in

concluding that a conditional discharge was unavailable.

New Mexico’s conditional discharge statute permits a court to forego entering

an adjudication of guilt following a conviction and instead enter a conditional

discharge placing the defendant on probation. N.M Stat. Ann. § 31-20-13(A). If the

3 defendant violates any of the terms of the probation, the court may then enter an

adjudication of guilt and otherwise sentence the person. N.M. Stat. Ann. § 31-20-

13(B). A conditional discharge is only available to those found guilty of crimes

eligible for a deferred or suspended sentence under New Mexico law. N.M. Stat.

Ann. § 31-20-13(A).

The IMCA assimilates into federal law the definition and punishment of

certain state crimes that, like burglary, are “not defined and punished by Federal

law.” 18 U.S.C. § 1153(b). The assimilated state offense becomes a federal offense

punishable under federal law. United States v. Wood, 386 F.3d 961, 962 (10th Cir.

2004). In sentencing a defendant for an assimilated offense, a federal court may not

impose a sentence that falls outside the range of minimum and maximum

punishments authorized for the offense under state law. United States v. Garcia, 893

F.2d 250, 251–52 (10th Cir. 1989) (superseded by statute, 18 U.S.C. § 3551(a)). 1

Incorporation of state law is limited to the maximum and minimum penalties

for the offense and does not extend to “state ‘sentencing schemes.’” United States v.

Jones, 921 F.3d 932, 937–38 (10th Cir. 2019). On this basis, we have held that state

law provisions authorizing suspended sentences are not incorporated under the

IMCA. Id. (citing Wood, 386 F.3d at 963).

1 Garcia dealt with the Assimilative Crimes Act (ACA) rather than the IMCA. However, because the statutes are similar and involve the same sentencing procedures, we consider ACA cases in interpreting similar provisions of the IMCA. Wood, 386 F.3d at 962 n.2. 4 Mr. Martinez relies primarily on two out-of-circuit cases to support his

contention that the district court had authority to impose a conditional discharge. In

United States v. Bosser, the Ninth Circuit held that Hawaii’s deferred acceptance

rule, which operates much like New Mexico’s conditional discharge, is a form of

punishment available to defendants sentenced for assimilated crimes in federal court.

866 F.2d 315, 317 (9th Cir. 1989). In so holding, the court emphasized that deferred

acceptance constitutes punishment “within the meaning of the ACA” and therefore

was available under federal law. Id. at 317–18. In United States v. Sylve, the Ninth

Circuit similarly held that Washington’s pre-conviction rehabilitation program is

assimilated into federal law under the ACA. 135 F.3d 680, 683–84 (9th Cir. 1998).

Relying on these cases, Mr. Martinez argues that a conditional discharge is

punishment under state law and is therefore incorporated by the IMCA. Hence, such

an alternative is available to federal courts at sentencing.

These cases are distinguishable. Bosser was decided in 1989, one year before

the Sentencing Reform Act was amended to specify that the federal sentencing

framework applies to convictions under the ACA and the IMCA. See 18 U.S.C.

§ 3551(a). And in any event, the cases are not binding on this court and are

inconsistent with Tenth Circuit case law. In Wood, we explained that a federal court

cannot apply a state sentence suspension provision to depart from a state mandatory

minimum sentence because “the Guidelines deny a district court the discretion to

suspend a sentence of imprisonment.” 386 F.3d at 963. Mr. Martinez contends that

Wood was undermined by the Supreme Court’s decision in United States v. Booker,

5 543 U.S. 220 (2005), rendering the Guidelines advisory rather than mandatory.

However, Wood did not turn on the then-mandatory nature of the guidelines. Instead,

the decision was based on the conclusion that federal courts assimilate only the

maximum and minimum penalties under state law and do not assimilate state

sentencing schemes that conflict with the Guidelines. See Wood, 386 F.3d at 963.

And more recently in Jones, we concluded that New Mexico’s conditional discharge

provision affects the minimum mandatory sentence under New Mexico law for an

offense subject to that provision. 921 F.3d at 942. However, we also reiterated the

conclusion that federal courts incorporate only the minimum and maximum sentences

under state law and do not incorporate state sentencing schemes. Id. at 941. Under

the Sentencing Reform Act and the IMCA, Mr. Martinez could have been sentenced

to probation, a fine, or imprisonment. 18 U.S.C. § 3551(b). But the district court

could not assimilate a state provision permitting a conditional discharge.

B. Dangerous Weapon Enhancement

Mr. Martinez next challenges the district court’s application of the two-level

sentencing enhancement for possession of a dangerous weapon.

Section 2B2.1(b)(4) of the Sentencing Guidelines provides for a two-level

increase if “a dangerous weapon [] was possessed” during the offense. The

commentary to the rule specifies that a dangerous weapon is “an instrument capable

of inflicting death or serious bodily injury,” or one that either “closely resembles

such an instrument” or was used “in a manner that created the impression that the

object was such an instrument.” U.S.S.G. §§ 1B1.1 n.1(E); 2B2.1 n.1.

6 Mr. Martinez does not dispute that he possessed a hammer during the burglary.

Rather, he argues that the hammer does not qualify as a dangerous weapon under

§ 1B1.1 because he did not use the hammer as a weapon during the offense. For

support, Mr. Martinez points to § 2A2.2, the guidelines provision governing

aggravated assault. He notes that the commentary to that section states that the term

dangerous weapon “has the meaning given that term in § 1B1.1” and “includes any

instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice pick)

if such an instrument is involved in the offense with the intent to commit bodily

injury.” U.S.S.G. § 2A2.2 n.1. He contends that the exclusion of the second part of

this definition from § 1B1.1 means that items not ordinarily used as weapons, like

hammers, do not qualify as dangerous weapons under § 1B1.1 unless they are

actually used as weapons.

This argument overlooks the text of §§ 2B2.1 and 1B1.1, which require only

that a defendant “possess[]” “an instrument capable of inflicting death or serious

bodily injury.” Therefore, unlike § 2A2.2, which focuses on the use or threatened

use of the object, § 2B2.1 is concerned only with the defendant’s possession of the

object and the object’s dangerous capabilities. Indeed, the Second Circuit has

considered and rejected an argument nearly identical to Mr. Martinez’s. The fact the

defendant did not use a sledgehammer as a weapon when he used it to gain entry to a

bank was “irrelevant to the issue of possession” and the enhancement therefore was

properly applied. United States v. Pope, 554 F.3d 240, 245–46 (2d Cir. 2009).

Clearly, a hammer is “an instrument capable of inflicting death or serious bodily

7 injury,” U.S.S.G. § 1B1.1 n.1(E), 2 and there is no dispute that Mr. Martinez

possessed a hammer during the burglary. The sentencing enhancement therefore was

properly applied.

AFFIRMED.

2 Citing cases in which unusual items have been held to constitute dangerous weapons, e.g., United States v. Hatch, 490 F. App’x 136, 140 (10th Cir. 2012) (tennis shoes); United States v. Tolbert, 668 F.3d 798, 802 (6th Cir. 2012) (plastic water pitcher), Mr. Martinez argues that a broad definition of “dangerous weapon” could lead to absurd results. First, these cases are of limited relevance because they involve defendants convicted of assault. See, e.g., Hatch, 490 F. App’x at 138; Tolbert, 668 F.3d at 799. As discussed above, the assault guidelines are concerned with the defendant’s use of an object to cause injury or with the intent to do so. See U.S.S.G. § 2A2.2(b)(2)(B). The guidelines applicable to burglary, however, are concerned with the defendant’s possession of an object capable of causing serious injury. See U.S.S.G. §§ 1B1.1 n.1(E); 2B2.1 n.1. In any event, even if it is possible that a case could arise in which Mr. Martinez’s concern may be well-founded, it is beyond reasonable dispute here that a hammer is capable of causing death or serious injury. 8