F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            July 12, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-8094
v.
                                                   (District of Wyoming)
                                                   (D.C. No. 04-CR-69-J)
CYRIL EDWARD MARTINEZ, also
known as “Bucky” Martinez,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is,

therefore, ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-appellant Cyril Edward Martinez was charged with first degree

murder in violation of 18 U.S.C. §§ 1111 and 1153. 1 On June 3, 2004, Martinez

entered into a plea agreement in which he agreed to plead guilty to second degree

murder and, in exchange, the government would dismiss the pending indictment.

The parties also agreed, pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C) 2 that:

      the offense level of the United States Sentencing Guidelines to be
      applied in this case shall be offense level 40, and the Criminal
      History Category shall be II, for a resulting sentencing range of 324-
      405 months. The parties agree that the actual sentence to be applied
      within that range shall be left to the discretion of the Court, with the
      United States free to argue for a sentence at the high end of the
      range, and the Defendant free to argue for a sentence at the low end
      of the range. The parties agree that the rationale for this compromise
      is as follows: The Defendant is presently charged with Murder in the
      First Degree, and he understands that if convicted at trial of this
      offense he would face a mandatory sentence of life without parole.
      The United States understands and acknowledges that based on the
      evidence of this case the Defendant will be entitled to a lesser
      included offense instruction of Murder in the Second Degree.
      Neither party can be certain of a jury verdict, and they therefore
      desire to reach a compromise. The actual sentencing range selected
      here is the functional equivalent of the sentence which would be
      imposed if Defendant entered a plea of guilty to Murder in the First

      1
       Martinez, a member of the Northern Arapaho Indian tribe, killed the victim
on the Wind River Indian Reservation.
      2
       Under a Rule 11(c)(1)(C) plea agreement, an attorney for the government
may “agree that a specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of the Sentencing
Guidelines, or policy statement, or sentencing factor does or does not apply (such
a recommendation or request binds the court once the court accepts the plea
agreement).” Fed. R. Crim. P. 11(c)(1)(C).

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      Degree, and then received a reduction of three offense levels, which
      reduction is normally afforded to defendants who accept
      responsibility for their actions, but which reduction is not otherwise
      available in this case due to the mandatory nature of the statutory
      penalty for Murder in [the] First Degree, with or without a plea and
      acceptance of responsibility.

After reviewing the presentence report, the district court accepted the plea and

sentenced Martinez to a prison term of 336 months, five years of supervised

release, restitution in the amount of $5,530.81, and a $1,000 fine. 3 Martinez now

appeals, arguing that his sentence must be reversed because it (1) represents an

upward departure unsupported by factual findings as required by 18 U.S.C.

§ 3553(c) 4 and (2) violates his Sixth Amendment rights under Blakely v.

Washington, 

(2004).

      Unless the sentence imposed is greater than the sentence set forth in the

plea agreement, a defendant sentenced pursuant to a Rule 11(c)(1)(C) plea

agreement may only appeal if his sentence was imposed “in violation of law” or

“as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C.

§ 3742(a)(1)–(2), (c)(1). Because Martinez’s sentence conformed to the

      3
        At sentencing, Martinez asked to withdraw his guilty plea or, in the
alternative, that he be allowed more time before sentencing to consider whether to
withdraw his plea. The court denied the request. Martinez does not challenge
this on appeal. Nor does Martinez challenge the knowing and voluntary nature of
his plea.
      4
       Martinez asserts that had he been sentenced based solely on a guilty plea
to second degree murder, the applicable sentencing range would have been 121-
151 months.

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stipulated sentence in his Rule 11(c)(1)(C) plea agreement and was less than the

statutory maximum, it did not violate the law. 5 See United States v. Brown, 

, 1160 n.4 (10th Cir. 2003); United States v. Veri, 

, 1315

(10th Cir. 1997). Martinez also cannot challenge his sentence under United States

v. Booker, 

(2005), 6 because he admitted all relevant facts and

stipulated to the specific sentence he received. See United States v. Silva, No. 04-

1522, 

, at *1 (10th Cir. July 7, 2005). Similarly, because

Martinez’s sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement,

the district court did not apply the Sentencing Guidelines, let alone apply the

Guidelines incorrectly. See Fed. R. Crim. P. 11(c)(1)(C) (agreement is binding on

the court); 

. The district court’s application of the

provisions of the Rule 11(c)(1)(C) plea agreement resulted in a sentence that was

neither “in violation of law” nor “an incorrect application of the sentencing




      The statutory maximum penalty for second degree murder is life in prison.
      5

18 U.S.C. § 1111(b).
      6
       In United States v. Booker, the Supreme Court extended the holding of
Blakely v. Washington, 

(2004), to the federal Sentencing
Guidelines, concluding that the Sixth Amendment requires that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Booker, 

, 756 (2005). The Court also rendered the
Guidelines advisory by excising 18 U.S.C. § 3553(b)(1). 

                                         -4-
guidelines.” 18 U.S.C. § 3742(a)(1)–(2), (c)(1). This court therefore lacks

jurisdiction to review Martinez’s sentence and the appeal is DISMISSED.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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