United States v. Raul Alberto Martinez

7 F.3d 1046, 1993 WL 408013

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 14, 1993
• Docket: 92-2265
• Status: Published

Opinion

7 F.3d 1046

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Raul Alberto MARTINEZ, Defendant-Appellant.

No. 92-2265.

United States Court of Appeals,
Tenth Circuit.

Oct. 14, 1993.

ORDER AND JUDGMENT1

Before MOORE, FEINBERG,2 and ANDERSON, Circuit Judges.

On July 1, 1992, Raul Martinez pled guilty to violations of 21 U.S.C. 846, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. 2. As part of the plea agreement, the government filed a motion to reduce his sentence under U.S.S.G. 5K1.1. The trial court departed downwards from the guidelines, sentencing Mr. Martinez to ninety-seven months' incarceration. After the government filed a motion for reconsideration of Mr. Martinez's sentence, the trial court resentenced defendant to sixty months' incarceration. Mr. Martinez appeals his sentence and argues the trial court's downward departure failed to adequately reward his substantial assistance to the government.

It is well-settled we do not have jurisdiction to review a district court's decision not to depart downwards from the sentencing guidelines. United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993). Further, if a district court does choose to depart downwards, we cannot examine the extent of this departure. United States v. Bromberg, 933 F.2d 895, 896 (10th Cir.1991). Accordingly, Mr. Martinez's appeal is DISMISSED.

1 This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R.36.3

2 The Honorable Wilfred Feinberg, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit, sitting by designation