United States v. Martinez

Opinion

Appellate Case: 24-2131 Document: 19 Date Filed: 11/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 24-2131 v. (D.C. No. 2:24-CR-00512-MIS-1) (D. N.M.) MICHAEL ANDREW MARTINEZ,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EBEL, and MORITZ, Circuit Judges. _________________________________

Michael Andrew Martinez, a former sheriff’s deputy, pled guilty to deprivation

of rights under color of law in violation of 18 U.S.C. §§ 242, 250(b)(4)(A), and to

destruction, alteration or falsification of records in federal investigations in violation

of 18 U.S.C. § 1519. His plea agreement with the government included a waiver of

appellate rights and a stipulation indicating “that a specific sentence between 2 and

10 years of imprisonment followed by 3 years of supervised release is the appropriate

disposition in this case.” Plea Agr. (Doc. 15-2) at 7. The district court imposed a

prison sentence of 108 months, which is below the statutory maximum for Martinez’s

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-2131 Document: 19 Date Filed: 11/14/2024 Page: 2

crimes and within the range contemplated by the plea agreement, but above that

recommended by the sentencing guidelines. Martinez seeks to appeal the sentence,

and the government has moved to enforce the appellate waiver in the plea agreement

under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc).

In evaluating whether to enforce an appellate waiver, we ask “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights; (2) whether

the defendant knowingly and voluntarily waived his appellate rights; and (3) whether

enforcing the waiver would result in a miscarriage of justice.” Id. at 1325. Martinez

concedes the first two issues but argues enforcing his sentence would result in a

miscarriage of justice.

There are only four situations in which enforcing an appellate waiver

constitutes a miscarriage of justice: (1) when the district court relied on an

impermissible factor, such as race; (2) when counsel provided ineffective assistance

in negotiating the waiver; (3) when the sentence exceeds the statutory maximum; or

(4) when the waiver itself is otherwise unlawful. United States v. Polly, 630 F.3d

991, 1001 (10th Cir. 2011). Martinez argues the waiver is unlawful because the

district court failed to explain why it imposed an above-guidelines sentence against a

law enforcement officer with no criminal history. Enforcing the sentence under these

circumstances, he claims, would seriously affect the fairness, integrity, or public

reputation of the proceeding. We reject this argument for two reasons.

First, Martinez does not dispute that his sentence is within the range explicitly

contemplated by the plea agreement into which he entered knowingly and

2 Appellate Case: 24-2131 Document: 19 Date Filed: 11/14/2024 Page: 3

voluntarily. Accordingly, even though the sentence surpasses the applicable

guidelines range, we cannot say enforcing it would result in a miscarriage of justice.

Second, his argument misunderstands the focus of our inquiry. In deciding

whether an appellate waiver is otherwise unlawful, we look “to whether the waiver is

otherwise unlawful, not to whether another aspect of the proceeding may have

involved legal error.” United States v. Leyva-Matos, 618 F.3d 1213, 1217 (10th Cir.

2010) (internal quotation marks omitted). Martinez argues the district court erred in

imposing an above-guidelines sentence without adequate reasoning. But even if we

accept this argument, it does not affect the lawfulness of his waiver. As we

explained in Leyva-Matos, “an appeal waiver is not ‘unlawful’ merely because the

claimed error would, in the absence of waiver, be appealable. To so hold would

make a waiver an empty gesture.” Id. (internal quotation marks omitted). To meet

his burden of showing his waiver was unlawful, Martinez must point to something

other than the length of his sentence and he has not done so. Because he has failed to

challenge the lawfulness of the waiver itself, he cannot bring a challenge to the

district court’s computation of his sentence. Polly, 630 F.3d at 1002.

3 Appellate Case: 24-2131 Document: 19 Date Filed: 11/14/2024 Page: 4

We grant the government’s motion to enforce Martinez’s appellate waiver and

dismiss this appeal.

Entered for the Court

Per Curiam