United States v. Martinez

Second Circuit

United States v. Martinez

510 F. App'x 42

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 31, 2013

Docket11-4213-cr

StatusUnpublished

This text of 510 F. App'x 42 (United States v. Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Martinez, 510 F. App'x 42 (2d Cir. 2013).

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Opinion

SUMMARY ORDER

Kelvin Martinez appeals a September 27, 2011 judgment of the District Court convicting him, after a guilty plea, of one count of conspiracy to violate the narcotics laws of the United States — specifically, to distribute and to possess with the intent to distribute 50 grams or more of cocaine base, in violation 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846. In the plea agreement, Martinez stipulated that he would not appeal a sentence within or below the agreed upon Guidelines range of 135 to 168 months. On September 27, 2011, the District Court imposed a sentence of 132 months’ imprisonment, which included an obstruction of justice enhancement explicitly permitted by the plea agreement.

Martinez now seeks remand and resen-tencing based principally on Dorsey v. United States, —U.S.-, 132 S.Ct. 2321, 2336, 183 L.Ed.2d 250 (2012), which held that the Fair Sentencing Act’s more lenient penalty provisions apply to defendants sentenced on or after August 3, 2010-regardless of when they committed the relevant offense. On May 30, 2012, the government filed a motion to dismiss on the basis of the appellate waiver contained in Martinez’s plea agreement. Martinez opposed that motion on June 28, 2012.

Martinez’s co-defendant, Benjamin Harrison previously raised this precise claim— that Dorsey requires remand and resen-tencing — and we rejected it. Specifically, we held “that the change in law caused by Dorsey’s interpretation of the Fair Sentencing Act is not sufficient to upset a valid waiver of appeal.” United States v. Harrison, 699 F.3d 158, 159 (2d Cir.2012). The Supreme Court denied Harrison’s writ for a petition of certiorari on January 7, 2013. Harrison v. United States, —U.S.-, 133 S.Ct. 914, 915, 184 L.Ed.2d 703 (2013). There is no question, apart from Martinez’s claim under Dorsey, that the waiver provision in the plea agreement is valid. Martinez’s claim on appeal therefore has no merit, and the motion to dismiss must be granted.

CONCLUSION

We have considered all of Martinez’s other claims and find them to be without merit. For the reasons set out above, we GRANT appellee’s motion to dismiss and DISMISS the appeal.

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SUMMARY ORDER

Kelvin Martinez appeals a September 27, 2011 judgment of the District Court convicting him, after a guilty plea, of one count of conspiracy to violate the narcotics laws of the United States — specifically, to distribute and to possess with the intent to distribute 50 grams or more of cocaine base, in violation 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846. In the plea agreement, Martinez stipulated that he would not appeal a sentence within or below the agreed upon Guidelines range of 135 to 168 months. On September 27, 2011, the District Court imposed a sentence of 132 months’ imprisonment, which included an obstruction of justice enhancement explicitly permitted by the plea agreement.

Martinez now seeks remand and resen-tencing based principally on Dorsey v. United States, —U.S.-, 132 S.Ct. 2321, 2336, 183 L.Ed.2d 250 (2012), which held that the Fair Sentencing Act’s more lenient penalty provisions apply to defendants sentenced on or after August 3, 2010-regardless of when they committed the relevant offense. On May 30, 2012, the government filed a motion to dismiss on the basis of the appellate waiver contained in Martinez’s plea agreement. Martinez opposed that motion on June 28, 2012.

Martinez’s co-defendant, Benjamin Harrison previously raised this precise claim— that Dorsey requires remand and resen-tencing — and we rejected it. Specifically, we held “that the change in law caused by Dorsey’s interpretation of the Fair Sentencing Act is not sufficient to upset a valid waiver of appeal.” United States v. Harrison, 699 F.3d 158, 159 (2d Cir.2012). The Supreme Court denied Harrison’s writ for a petition of certiorari on January 7, 2013. Harrison v. United States, —U.S.-, 133 S.Ct. 914, 915, 184 L.Ed.2d 703 (2013). There is no question, apart from Martinez’s claim under Dorsey, that the waiver provision in the plea agreement is valid. Martinez’s claim on appeal therefore has no merit, and the motion to dismiss must be granted.

CONCLUSION

We have considered all of Martinez’s other claims and find them to be without merit. For the reasons set out above, we GRANT appellee’s motion to dismiss and DISMISS the appeal.

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