United States v. Martinez-Gutierrez

391 F. App'x 43

• Court: Court of Appeals for the Second Circuit
• Decided: August 26, 2010
• Docket: 09-1319-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

On June 25, 2008, defendant-appellant Pablo Martinez-Gutierrez entered a plea of guilty to a one count indictment charging him with illegal reentry after having been deported following the commission of an aggravated felony, in violation of 8 U.S.C. § 1826(a) and (b)(2). Martinez-Gutierrez’s prior aggravated felony was not specified in the indictment. Martinez-Gutierrez was sentenced to a seventy-month term of imprisonment, within the twenty-year statutory maximum under § 1326(b)(2). He filed a timely appeal. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

On appeal, Martinez-Gutierrez argues that the Sixth Amendment required a jury to find beyond a reasonable doubt that he had been previously convicted of a “crime of violence” before the District Court could impose a 16-point sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Under 8 U.S.C. § 1326(b)(2), the statutory maximum term of imprisonment for illegal reentry after having been deported following the commission of an aggravated felony is twenty years. The Guidelines enhancement Martinez-Gutierrez received because the aggravated felony was a crime of violence, therefore, resulted in a sentence that did not exceed the statutory maximum for the crime to which he pled. Accordingly, there is no Sixth Amendment violation. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Moreover, Martinez-Gutierrez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (facts related to recidivism are not required to be found by a jury). We have repeatedly held that “Almendarez-Torres ... stands as a ‘narrow exception’ to the general rule announced in Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] that ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” United States v. Mercedes, 287 F.3d 47, 58 (2d Cir.2002) (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (Ap-prendi does not require a jury finding to apply the 16-point enhancement for a pri- or aggravated felony); see also United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir.2001). As a result, we hold that the District Court did not err in applying a 16-point sentencing enhancement for a prior conviction for a crime of violence.

Second, Martinez-Gutierrez argues that the District Court’s failure to remind him of his access to a translator — despite the fact that he specifically and repeatedly declined the opportunity to have the proceedings translated for him — deprived him of his right to allocution in violation of the Federal Rules of Criminal Procedure 32(i)(4)(A)(ii). We disagree. “A defendant has a right, protected by [Federal Rule of Criminal. Procedure 32(i)(4)(A)(ii)], to address the sentencing judge before the imposition of [a] sentence.” United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir.2008) (citing United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996)). It is uncontested that Martinez-Gutierrez was provided with an opportunity to address the District Court at his sentencing hearing, declined translation services, and chose to proceed in English. We cannot say it was error, much less plain error, for the District Court to permit him to proceed without translation services. See United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir.2007) (“[I]ssues not raised in the trial court because of oversight ... are normally deemed forfeited on appeal unless they meet our standard for plain error.”).

CONCLUSION

We have considered each of Martinez-Gutierrez’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.