Filed: Oct. 15, 2020
Latest Update: Oct. 15, 2020
Summary: Case: 19-40387 Document: 00515602850 Page: 1 Date Filed: 10/15/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 15, 2020 No. 19-40387 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Arnoldo Martinez-Guerra, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Texas USDC No. 7:18-CR-304-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per
Summary: Case: 19-40387 Document: 00515602850 Page: 1 Date Filed: 10/15/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 15, 2020 No. 19-40387 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Arnoldo Martinez-Guerra, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Texas USDC No. 7:18-CR-304-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per ..
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Case: 19-40387 Document: 00515602850 Page: 1 Date Filed: 10/15/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 15, 2020
No. 19-40387 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Arnoldo Martinez-Guerra,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-304-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Arnoldo Martinez-Guerra pleaded guilty to possessing a firearm while
in the country illegally, in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2),
and 2. The district court sentenced him to 97 months of imprisonment.
Relying on Rehaif v. United States, 139 S. Ct. 2191 (2019), Martinez-Guerra
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-40387
argues that the factual basis was insufficient to support his guilty plea because
it did not establish that he knew of his prohibited status at the time of the
offense or that he knowingly possessed the firearm.
Because Martinez-Guerra did not raise this objection in the district
court, we review for plain error only. See United States v. Ortiz, 927 F.3d 868,
872 (5th Cir. 2019). On plain error review, a defendant must establish an
error or defect that is clear or obvious, rather than subject to reasonable
dispute, and that affected his substantial rights. Id.; see also United States v.
Hicks,
958 F.3d 399, 400 (5th Cir. 2020). Once those conditions have been
met, this court has discretion to correct the forfeited error if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Ortiz, 927 F.3d at 872.
The record in its entirety, including the presentence report (PSR) and
rearraignment transcript, and “fairly drawn inferences from the evidence”
show that when he possessed the firearm involved in the offense, Martinez-
Guerra knew of his status as an alien illegally or unlawfully in the United
States and that he knowingly possessed the firearm. United States v. Trejo,
610 F.3d 308, 317 (5th Cir. 2010) (citations omitted); see also
Hicks, 958 F.3d
at 400-02. Martinez-Guerra served as a firearms straw purchasing recruiter
and recruited seven other co-conspirators to purchase firearms on his behalf
in exchange for financial compensation. The PSR provided that at least three
of the recruited co-conspirators knew Martinez-Guerra was an
undocumented alien, unlawfully present in the United States. Moreover, in
summarizing an interview that government officials conducted with
Martinez-Guerra, the PSR explained that Martinez-Guerra was “aware of
the necessary documentation that was required to be filled out in order to
purchase a firearm, noting that he was unable to purchase firearms himself
because of his immigration status.” Once the firearms were purchased,
Martinez-Guerra took possession of the firearms, occasionally stored the
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firearms at his residence, and then concealed the firearms in the bumper of a
vehicle before having them transported to Mexico. Thus, Martinez-Guerra’s
knowledge of his status and possession of the firearm was, at least, subject to
reasonable debate. See Hicks, 958 F.3d at 400. Accordingly, he has not
shown that the district court clearly or obviously erred by accepting the
factual basis for his guilty plea. See
Ortiz, 927 F.3d at 872.
Martinez-Guerra’s second argument is that his indictment is legally
insufficient because it failed to contain each essential element of the offense
in light of Rehaif. However, Martinez-Guerra waived any such claim of error
by voluntarily and unconditionally pleading guilty to the offense. See United
States v. Daughenbaugh, 549 F.3d 1010, 1012-13 (5th Cir. 2008); see also
United States v. Lim,
897 F.3d 673, 679-80 (5th Cir. 2018).
Third, Martinez-Guerra argues that the district court erred in
calculating his total offense level by erroneously imposing an enhanced base
offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(B)(i)(I) because the offense
involved numerous semiautomatic firearms capable of accepting a large
capacity magazine; a six-level enhancement pursuant to § 2K2.1(b)(1)(C)
because the offense involved 25 to 99 firearms; and a four-level enhancement
pursuant to § 2K2.1(b)(5) because Martinez-Guerra was engaged in the
trafficking of firearms. While he arguably preserved his objections to the
number of firearms enhancement and the trafficking enhancement,
Martinez-Guerra did not clearly preserve his objection to the base offense
level enhancement. See United States v. Torres-Perez, 777 F.3d 764, 767 (5th
Cir. 2015). His preserved objections are reviewed under an abuse of
discretion standard, United States v. Odom,
694 F.3d 544, 546 (5th Cir. 2012),
and his unpreserved objection is reviewed for plain error,
Ortiz, 927 F.3d at
872.
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With regards to his base offense level enhancement, Martinez-Guerra
contends that the district court erred in applying the enhancement because
there is no evidence that the firearm he was convicted of possessing had
attached to it or was in close proximity to a large capacity magazine. See
§ 2K2.1(a)(4)(B)(i)(I), comment. (n.2). Nevertheless, the PSR provided
that the firearm involved in the offense was a semiautomatic firearm capable
of accepting a large capacity magazine, and defense counsel at sentencing
acknowledged that the firearm Martinez-Guerra possessed had “the ability
to hold at least 20 rounds.” See § 2K2.1(a)(4)(B)(i)(I). Martinez-Guerra
introduced no evidence to dispute the PSR and does not now assert that the
firearm is incapable of accepting a large capacity magazine. See United States
v. Nava, 624 F.3d 226, 231 (5th Cir. 2010). Martinez-Guerra has not shown
that the district court clearly or obviously erred in applying the enhanced base
offense level nor has he cited any binding precedent dictating a contrary
conclusion. See id.; see also United States v. Ponce-Flores,
900 F.3d 215, 218-
19 (5th Cir. 2018).
With regards to the number of firearms enhancement, Martinez-
Guerra contends that the district court erroneously applied the enhancement
because there is no evidence that he possessed more than one firearm. The
PSR provides that Martinez-Guerra recruited seven people as “straw
purchasers” and that those seven people purchased a total of 26 firearms on
his behalf. Given that the purchase of the 26 firearms was “commanded,
induced, procured, or willfully caused by the defendant” over the course of
several months as part of an “ongoing series of offenses,” U.S.S.G.
§ 1B1.3(a)(1), (2) & comment. (n.5(B)(ii)), it was plausible for the district
court to conclude that these firearms “were unlawfully sought to be
obtained” by Martinez-Guerra, § 2K2.1, comment. (n.5). See United States
v. Maturino, 887 F.3d 716, 721-22 (5th Cir. 2018).
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Martinez-Guerra further argues that the district court erred in
enhancing his sentence pursuant to § 2K2.1(b)(5) because he was engaged in
trafficking firearms. Martinez-Guerra objects to this enhancement on the
basis that there is no evidence that he knew or had reason to believe that the
firearms would be used for illegal purposes as required by § 2K2.1(b)(5),
comment (n.13). However, the record reveals sufficient evidence from which
the district court could infer that Martinez-Guerra had reason to believe that
the firearms were being purchased for an unlawful purpose including, inter
alia, (1) the nature of his dealings with “El Padrino,” the ultimate purchaser
of the firearms, (2) his awareness that the firearms were being unlawfully
imported into Mexico, (3) the number of weapons purchased in the span of
only a few months, as well as (4) the fact that he was being paid above the
retail cost of each of the weapons for his role in the purchase of the firearms.
See United States v. Juarez, 626 F.3d 246, 252 (5th Cir. 2010). Accordingly,
the district court did not err in applying the sentencing enhancements
pursuant to § 2K2.1. See
Ortiz, 927 F.3d at 872.
To the extent that Martinez-Guerra seeks reconsideration of the
denial of his motion to compel the district court clerk and court reporter to
produce the audio recordings of the hearings in the district court, his motion
for reconsideration is DENIED as untimely. See 5th Cir. R. 27.2; Fed.
R. App. P. 40(a)(1). Lastly, Martinez-Guerra’s request for sanctions is
non-meritorious; therefore, his request for sanctions is DENIED.
The judgment is AFFIRMED.
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