United States v. Martinez

Opinion

Appellate Case: 24-1078 Document: 010111098013 Date Filed: 08/21/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 21, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-1078 (D.C. No. 1:23-CR-00084-DDD-1) DAMON RAMON MARTINEZ, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, MORITZ, and CARSON, Circuit Judges. _________________________________

After Damon Ramon Martinez pleaded guilty to one count of escape from a

halfway house, the district court sentenced him to 20 months’ imprisonment. On

appeal, Mr. Martinez raises only one sentencing issue, challenging the district court’s

decision not to decrease his offense level under United States Sentencing Guideline

§ 2P1.1(b)(3). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-1078 Document: 010111098013 Date Filed: 08/21/2024 Page: 2

BACKGROUND

Mr. Martinez pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). See United States v. Martinez, 860 F. App’x 584,

585 (10th Cir. 2021). After serving time in prison for that conviction, he was in

custody at a halfway house. On October 3, 2022, he left the halfway house without

authorization and never returned.

On November 28, 2022, Mr. Martinez came to the attention of police officers

in Broomfield, Colorado. The officers were responding to a complaint of shoplifting

by two suspects, one male and one female. Upon being stopped at the door of the

store, the female suspect said her bag was in a car in the parking lot. Mr. Martinez

was sitting in the driver’s seat of that car. Officers discovered (1) a tube containing

three fentanyl pills weighing a total of .32 grams; (2) a wallet that “fell on the ground

when [Mr. Martinez was] being removed from the vehicle” that contained a credit

card in the name of a person with the initials K.C., R. Vol. 1 at 44; and (3) a cell

phone with an attached wallet containing a driver’s license in the name of a person

with the initials E.P. and a debit card in the name of a person with the initials E.L.

Mr. Martinez gave the officers a false name and birthdate. In addition, the car had

been reported stolen a few weeks earlier and displayed license plates that were

registered to a different vehicle.

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Mr. Martinez was charged with four offenses in state court: (1) Criminal

Possession of Financial Devices–Two or More Devices,1 (2) Unlawful Possession of

a Controlled Substance, (3) Criminal Possession of an Identification Document, and

(4) Criminal Impersonation. Count 1 was a felony, while the other three counts were

misdemeanors. Mr. Martinez pleaded guilty to Counts 3 and 4, and the State

dismissed Counts 1 and 2.

Mr. Martinez then was charged in federal court with escape from a halfway

house in violation of 18 U.S.C. § 751(a). He pleaded guilty without a plea

agreement. The primary issue at sentencing was the appropriate offense level.

The Guideline for escape offenses, § 2P1.1, establishes a base offense level

of 13. See U.S. Sent’g Guidelines Manual § 2P1.1(a)(1) (U.S. Sent’g Comm’n

2023). The base offense level is reduced by four levels “[i]f the defendant escaped

from the non-secure custody of a community corrections center, community

treatment center, ‘halfway house,’ or similar facility.” Id. § 2P1.1(b)(3). However,

“this reduction shall not apply if the defendant, while away from the facility,

committed any federal, state, or local offense punishable by a term of imprisonment

of one year or more.” Id.

1 The complaint and information in the record lists Count 1 as “Criminal Possession of a Financial Device,” R. Vol. 1 at 26 (emphasis added), conforming to the title of the statute. But it then specifies the offense was in violation of “C.R.S. 18-5-903(1), (2)(b) (F6).” Id. Colo. Rev. Stat. § 18-5-903(2)(b) (2022) makes “[c]riminal possession of two or more financial devices . . . a class 6 felony.” We thus understand Count 1 to charge Criminal Possession of Financial Devices– Two or More Devices. 3 Appellate Case: 24-1078 Document: 010111098013 Date Filed: 08/21/2024 Page: 4

The presentence report (PSR) summarized the events of November 28, 2022,

and the Colorado charges. It noted attempts to contact the registered owner of the car

and E.P. were unsuccessful, but K.C. and E.L. stated that their cards had been stolen

from them. E.L. further stated that he did not give anyone authority to use the debit

card. Ultimately, the PSR did not apply the four-level reduction under § 2P1.1(b)(3)

on the ground that Mr. Martinez had committed qualifying offenses, although it did

not identify which offenses might qualify.

Mr. Martinez objected, arguing the evidence was insufficient to establish he

committed a felony. He pointed out that the State had dismissed Count 1, the only

felony he had been charged with, and that he pleaded guilty only to misdemeanor

offenses. In response, the government suggested that Mr. Martinez had committed

two qualifying offenses: Criminal Possession of Financial Devices–Two or More

Devices and Second Degree Aggravated Motor Vehicle Theft. A revised PSR

specified the probation officer believed that Mr. Martinez had committed Criminal

Possession of Financial Devices–Two or More Devices.

At sentencing, Mr. Martinez advocated for the § 2P1.1(b)(3) reduction, and the

government opposed it. Relying on a police report documenting the events of

November 28, 2022, and the additional information in the PSR, the prosecutor argued

for both the financial devices and vehicle theft offenses. The district court found that

Mr. Martinez committed Second Degree Aggravated Motor Vehicle Theft and

declined to apply the § 2P1.1(b)(3) reduction.

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After assessing a base offense level of 13, the court awarded Mr. Martinez a

two-level reduction for acceptance of responsibility, making the offense level 11.

His criminal history was category VI, resulting in a Guidelines range of 27 to 33

months’ imprisonment. Mr. Martinez moved the district court to vary downward.

The court granted that motion in part and sentenced him to 20 months’ imprisonment.

Mr. Martinez appeals.

DISCUSSION

I. Standards of Review

Because he challenges the district court’s calculation of the Guidelines range,

Mr. Martinez’s argument involves the procedural reasonableness of his sentence.

See United States v. Ramos, 695 F.3d 1035, 1039 (10th Cir. 2012). “We review a

sentence for abuse of discretion and, in doing so, review the court’s legal conclusions

de novo and its factual findings for clear error.” Id. (internal quotation marks

omitted). “We have described the clear-error standard as deferential. To satisfy it,

[the appellant] must leave us with a definite and firm conviction that a mistake has

been made.” United States v. Martinez, 92 F.4th 1213, 1227 (10th Cir. 2024)

(citation and internal quotation marks omitted).

Consistent with our rule that “[t]he government shall bear the burden of proof

for sentence increases and the defendant shall bear the burden of proof for sentence

decreases,” United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir. 1990), the burden is

on Mr. Martinez to show he escaped from a facility qualifying for a § 2P1.1(b)(3)

reduction, and on the government to show he is not eligible for the reduction because

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he committed a qualifying offense. See United States v. Charlesworth, 217 F.3d

1155, 1158-59 (9th Cir. 2000). There is no dispute that Mr. Martinez escaped from a

halfway house, which qualifies for a § 2P1.1(b)(3) reduction. The dispute is whether

the government adequately showed Mr. Martinez committed a Colorado felony after

he escaped. The standard of proof is by a preponderance of the evidence. See United

States v. Robertson, 946 F.3d 1168, 1171 (10th Cir. 2020).

II. Analysis

On appeal, Mr. Martinez argues that the government failed to prove all the

elements of Second Degree Aggravated Motor Vehicle Theft. The government

defends the district court’s decision, but it also suggests that we may affirm on the

alternate ground that Mr. Martinez committed Criminal Possession of Financial

Devices–Two or More Devices, in violation of Colo. Rev. Stat. § 18-5-903(1), (2)(b)

(2022). We may affirm on any grounds supported by the record, even grounds the

district court did not consider. See United States v. Zamora, 97 F.4th 1202, 1213

(10th Cir. 2024). Even assuming the district court erred in determining that

Mr. Martinez committed Second Degree Aggravated Motor Vehicle Theft, we uphold

the denial of the § 2P1.1(b)(3) reduction because the record shows, by a

preponderance of the evidence, that Mr. Martinez committed Criminal Possession of

Financial Devices–Two or More Devices.

Colo. Rev. Stat. § 18-5-903 (2022) provided that “[a] person commits criminal

possession of a financial device if the person has in his or her possession or under his

or her control any financial device that the person knows, or reasonably should know,

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to be lost, stolen, or delivered under mistake as to the identity or address of the

account holder,” § 18-5-903(1), and that “[c]riminal possession of two or more

financial devices is a class 6 felony,” § 18-5-903(2)(b). A “financial device” is “any

instrument or device that can be used to obtain cash, credit, property, services, or any

other thing of value or to make financial payments, including but not limited to: . . .

[a] credit card, banking card, [or] debit card . . . .” Id. § 18-5-901(6)(a).

The first element is possession or control of a financial device. No one

disputes that the debit and credit cards recovered on November 28, 2022, were

financial devices. And the undisputed facts in the record show, by a preponderance

of the evidence, that Mr. Martinez possessed or had control of both of those cards.

The initial PSR stated that Mr. Martinez possessed both the wallet that fell

from the car and the cell phone wallet. In his objections, Mr. Martinez generally

challenged the evidence of possession; specifically pointed out that when questioned

by police, he denied possession of the cell phone; and stated that he “made no

admissions to possessing the cards to the police.” R. Vol. 1 at 22. But as also related

in the PSR, Mr. Martinez pleaded guilty to Criminal Possession of an ID

Document—namely, E.P.’s driver’s license, which was in the cell phone wallet.

Mr. Martinez did not dispute that fact. The government thus showed it is more likely

than not that he possessed all the contents of the cell phone wallet, including E.L.’s

debit card. Further, Mr. Martinez did not deny the factual allegation in the police

report that the wallet containing K.C.’s credit card fell to the ground when he was

removed from the vehicle. Under the circumstances, the government has shown it is

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more likely than not that Mr. Martinez possessed or had control of that wallet, and

therefore the credit card.

The next element is that Mr. Martinez knew or reasonably should know that

the cards were lost, stolen, or delivered under mistake as to identity. The district

court stated it was persuaded as to this element, and Mr. Martinez fails to show that

determination was clearly erroneous. The PSR noted that both owners confirmed to

investigators that their cards had been stolen.2 “We may infer intent and knowledge

from the surrounding circumstances,” United States v. Price, 795 F.2d 61, 63

(10th Cir. 1986), and given all the circumstances here—particularly possession of

identification and financial devices in three different people’s names, and a plea of

guilty to criminal possession of the identification—the government showed it was

more likely than not that Mr. Martinez knew or reasonably should have known the

cards were lost or stolen.

2 Before the district court, Mr. Martinez argued that the statements attributed to the cards’ owners should be disregarded as unreliable hearsay and as incredible. “However, we have consistently held that hearsay statements may be considered at sentencing if they bear some minimal indicia of reliability.” United States v. Damato, 672 F.3d 832, 847 (10th Cir. 2012) (internal quotation marks omitted). The separate reports from these two witnesses that their cards were stolen provided some corroboration. See United States v. Alqahtani, 73 F.4th 835, 851 (10th Cir. 2023) (distinguishing United States v. Fennell, 65 F.3d 812, 813-14 (10th Cir. 1995), where we concluded that the hearsay evidence introduced at sentencing was insufficiently reliable, in part, by noting that the separate statements of two witnesses “corroborated” each other when they both similarly “described an incident”). Moreover, nothing in the record shows that the witnesses had an axe to grind. See United States v. Ruby, 706 F.3d 1221, 1229-30 (10th Cir. 2013). 8 Appellate Case: 24-1078 Document: 010111098013 Date Filed: 08/21/2024 Page: 9

For these reasons, we affirm the district court’s decision not to reduce the base

offense level under § 2P1.1(b)(3).

CONCLUSION

We grant Mr. Martinez’s motion to expedite the appeal and affirm the district

court’s judgment.

Entered for the Court

Jerome A. Holmes Chief Judge