USA v. Jorge Martinez-Berrios, No. 12-40041 (5th Cir. 2012)
Annotate this Case
Download PDF
Case: 12-40041 Document: 00512092368 Page: 1 Date Filed: 12/21/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-40041 Summary Calendar December 21, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JORGE ALBERTO MARTINEZ-BERRIOS, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:10-CR-896-1 Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM:* Jorge Alberto Martinez-Berrios (Martinez) appeals the sentence of six months of imprisonment and 30 months of supervised release imposed by the district court following the revocation of his term of supervised release. Citing § 5D1.1(c) of the Sentencing Guidelines, which provides that supervised release ordinarily should not be imposed in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-40041 Document: 00512092368 Page: 2 Date Filed: 12/21/2012 No. 12-40041 deported after imprisonment, Martinez argues that his sentence was procedurally and substantively unreasonable. Although this court ordinarily reviews revocation sentences under the plainly unreasonable standard, United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011), our review in this case is for plain error because Martinez failed to object to his sentence in the district court. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, Martinez must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. Considering the record before us, there is no indication that the district court accounted for or considered § 5D1.1(c) in applying the guidelines for supervised release. The district court thus committed clear or obvious error. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010). However, Martinez cannot show that the error affected his substantial rights. The guidance against supervised release under § 5D1.1(c) is hortatory rather than mandatory. United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012). Where § 5D1.1(c) applies, supervised release should not be imposed absent a determination that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case. Id.; § 5D1.1, comment. (n.5). The district court s particularized statements concerning Martinez s history of repeated immigration violations, though brief, were adequate to explain why a supervised release term was appropriate to provide an added measure of deterrence and protection in his case. See § 5D1.1, comment. (n.5); see Dominguez-Alvarado, 695 F.3d at 328-30. Thus, with respect to the adequacy of the district court s explanation of the 2 Case: 12-40041 Document: 00512092368 Page: 3 Date Filed: 12/21/2012 No. 12-40041 sentence, Martinez cannot satisfy his burden under plain error review of showing an effect on his substantial rights. With respect to substantive reasonableness, Martinez contends that the district court erred because it failed to account for the guidance under § 5D1.1(c) against supervised release. One basis for error in a defendant s sentence is failure by the district court to account for a factor that should receive significant weight. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Here, the district court s reasons for the sentence indicated that the particular facts and circumstances of this case warranted the imposition of the punishment imposed, including the supervised release term. See § 5D1.1, comment. (n.5). [T]he sentencing judge is in a superior position to find facts and judge their import under [18 U.S.C.] § 3553(a) with respect to a particular defendant. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Martinez has not demonstrated plain error regarding the substantive reasonableness of his sentence. See Puckett, 556 U.S. at 135. AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
