Case: 19-41048     Document: 00515584688         Page: 1     Date Filed: 09/30/2020




              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                    September 30, 2020
                                  No. 19-41048
                                Summary Calendar                        Lyle W. Cayce
                                                                             Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Victoria Martinez, also known as Tori Townzen,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:18-CR-1336-2


   Before Jones, Barksdale, and Stewart, Circuit Judges.
   Per Curiam:*
          Victoria Martinez pleaded guilty to conspiracy to possess, with intent
   to distribute, a synthetic cannabinoid mixture, in violation of 21 U.S.C.
   §§ 841, 846, and possession of a firearm in furtherance of a drug-trafficking
   crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Following a contested


          *
            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   opinion should not be published and is not precedent except under the limited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. 19-41048


   sentencing hearing, the court sentenced Martinez, inter alia, to 220-months’
   imprisonment, a term below the advisory Sentencing Guidelines range.
   Martinez challenges the court’s application of sentencing enhancements
   under Guidelines §§ 2D1.1(b)(7),(12) for distributing a controlled substance
   through mass-marketing by means of an interactive computer service and for
   maintaining a premises for the purpose of manufacturing or distributing a
   controlled substance.
          Although post-Booker, the Guidelines are advisory only, the district
   court must avoid significant procedural error, such as improperly calculating
   the Guidelines sentencing range. Gall v. United States, 

, 46, 51
   (2007). If no such procedural error exists, a properly preserved objection to
   an ultimate sentence is reviewed for substantive reasonableness under an
   abuse-of-discretion standard.

United States v. Delgado-Martinez,
   

, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
   district court, its application of the Guidelines is reviewed de novo; its factual
   findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008).
          A district court’s determinations that the mass-marketing and
   maintaining-a-drug-premises enhancements apply are factual findings
   reviewed for clear error. United States v. Guzman-Reyes, 

, 263
   (5th Cir. 2017) (citation omitted) (Guideline § 2D1.1(b)(12) for maintaining
   premises); see United States v. Usman, 460 F. App’x 414, 418 (5th Cir. 2012)
   (“We review the district court’s factual findings with regard to the
   [Guideline § 2B1.1(b)(2)] mass-marketing enhancement for clear error
   . . . .”) (citing United States v. Mauskar, 

, 232 (5th Cir. 2009)).
   “A factual finding is not clearly erroneous so long as it is plausible in light of
   the record as a whole.” 

(internal quotation marks
   and citations omitted).




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                                    No. 19-41048


          When making factual findings for sentencing purposes, a district court
   may consider any relevant information that has “sufficient indicia of
   reliability to support its probable accuracy”. U.S.S.G. § 6A1.3(a). While
   Martinez arguably failed to preserve some of the issues she raises on appeal,
   we need not determine whether plain error review applies, because, assuming
   arguendo they were preserved, her claims still fail. See United States v.
   Suchowolski, 

, 532 (5th Cir. 2016).
          The mass-marketing enhancement applies where “defendant, or a
   person for whose conduct the defendant is accountable under [Guideline]
   § 1B1.3 (Relevant Conduct), distributed a controlled substance through
   mass-marketing by means of an interactive computer service”. U.S.S.G.
   § 2D1.1(b)(7). Where there is jointly undertaken criminal activity, relevant
   conduct includes:
          all acts and omissions of others that were—
                (i) within the scope of jointly undertaken
          criminal activity,
                 (ii) in furtherance of that criminal activity, and
                  (iii) reasonably foreseeable in connection with
          that criminal activity.
   U.S.S.G. § 1B1.3(a)(1)(B).
          Through the presentence investigation report and sentencing-hearing
   testimony, the Government presented evidence that Martinez had 3,100
   friends on Facebook, posted on Facebook that she had “bags” of synthetic
   cannabinoid available, and that one of Martinez’ co-conspirators advertised
   and sold synthetic cannabinoids through various Facebook groups dedicated
   to drug sales. Martinez failed to rebut the evidence as to her own conduct
   and the evidence showing that her co-conspirator’s acts were relevant
   conduct under Guideline § 1B1.3. See United States v. Parker, 

,




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                                    No. 19-41048


   329 (5th Cir. 1998) (“Mere objections do not suffice as competent rebuttal
   evidence.”) (internal citation omitted). The district court did not, therefore,
   commit clear error in applying the mass-marketing enhancement.             See
   

–33.
          Guideline § 2D1.1(b)(12)’s enhancement applies if “defendant
   maintained a premises for the purpose of manufacturing or distributing a
   controlled substance”. U.S.S.G. § 2D1.1(b)(12); see also Guzman-Reyes, 853
   at 263–64 (5th Cir. 2017). Martinez failed to rebut evidence showing she
   rented and maintained a locked room in another co-conspirator’s air-
   conditioning business and used it to manufacture synthetic cannabinoids.
   Under these facts, the district court’s application of the § 2D1.1(b)(12)
   enhancement was not clearly erroneous. See 

–
   65.
          AFFIRMED.




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