FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 24, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-2247
 v.                                           (D.Ct. No. 2:09-CR-02076-JAP-1)
                                                          (D. N.M.)
 OSCAR MARTINEZ-RODRIGUEZ,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Defendant-Appellant Oscar Martinez-Rodriguez pled guilty to one count of

conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C.

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§§ 841(a)(1) and (b)(1)(C) and 846 and was sentenced to twenty-seven months

imprisonment. On appeal, Mr. Martinez-Rodriguez contests the substantive

reasonableness of his twenty-seven-month sentence, claiming the district court

should have granted a variance under 18 U.S.C. § 3553(a), which requires his

sentence be sufficient but not greater than necessary to achieve the statutory

purposes of punishment. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Martinez-Rodriguez’s sentence.



                                   I. Background

      On April 23, 2009, United States Border Patrol agents arrested Mr.

Martinez-Rodriguez, who is a Mexican citizen, and three other individuals in the

desert near Hachita, New Mexico. At the time of their arrest, agents discovered

five burlap backpacks containing 90.8 gross kilograms of marijuana. When

questioned, all four of the individuals admitted to being citizens and nationals of

Mexico who entered the United States illegally. In post-Miranda statements, Mr.

Martinez-Rodriguez and the others arrested also admitted someone hired them to

smuggle marijuana from Mexico into the United States. On July 22, 2009, Mr.

Martinez-Rodriguez pled guilty, without benefit of a plea agreement, to one count

of conspiracy to possess with intent to distribute marijuana.



      After Mr. Martinez-Rodriguez pled guilty, a probation officer prepared a

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presentence report calculating his sentence under the applicable 2008 United

States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). In calculating Mr.

Martinez-Rodriguez’s sentence, the probation officer set his base offense level at

twenty-four, pursuant to U.S.S.G. § 2D1.1(c)(8) of the Drug Quantity Table,

because the instant offense involved at least eighty but less than 100 kilograms of

marijuana. She decreased the offense level four levels, pursuant to § 3B1.2(a),

because of his minimal role in the offense as a courier who lacked knowledge of

the entire scope of the conspiracy, and three levels, pursuant to § 3E1.1, for

acceptance of responsibility, for a total offense level of seventeen.



      In assessing Mr. Martinez-Rodriguez’s criminal history, the probation

officer included three points for a prior second-degree murder conviction,

resulting in a criminal history category of II. With respect to that conviction,

background information revealed that on February 26, 1998, Mr. Martinez-

Rodriguez was charged with second-degree murder in Cook County, Illinois, for

beating a man to death with a metal pipe, but found unfit for trial, resulting in his

involuntary committal until January 30, 2004, when the court found him

competent to stand trial. On October 19, 2004, Mr. Martinez-Rodriguez pled

guilty to the second-degree murder charge and received a sentence of thirteen

years and three months imprisonment with credit for 2,427 days time served. A

few days later, on October 22, 2004, he was paroled to the custody of the

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Immigration and Customs Enforcement Agency, which deported him to Mexico

on November 5, 2004.



      A total offense level of seventeen, together with a criminal history category

of II, resulted in a recommended Guidelines range of twenty-seven to thirty-three

months imprisonment. The probation officer also pointed out that the maximum

statutory penalty for the offense was twenty years imprisonment. See 21 U.S.C.

§ 841(b)(1)(C). In assessing Mr. Martinez-Rodriguez’s criminal history, the

probation officer did not include criminal history points for his other Cook

County, Illinois arrests, which included two instances of alleged battery, two

arrests involving criminal trespass, one instance of domestic battery, two charges

of theft, one charge of disorderly conduct, and one charge of illegal possession of

marijuana. Mr. Martinez-Rodriguez was arrested but never convicted of these

charges; all but two charges were “stricken off with leave to reinstate,” and in the

other two, “no further action [was] taken.” Finally, the probation officer stated

she considered Mr. Martinez-Rodriguez’s criminal and social history, details of

the instant offense, and the factors in 18 U.S.C. § 3553(a), and determined no

circumstances took him out of the heartland of cases of similarly-situated

defendants to warrant a variance.



      Prior to sentencing, Mr. Martinez-Rodriguez filed a sentencing

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memorandum, arguing certain circumstances warranted a downward variance

under 18 U.S.C. § 3553(a), which requires his sentence be sufficient but not

greater than necessary to achieve the statutory purposes of punishment. 1 In

support, he argued a sentence within the Guidelines range would cause him to

receive a sentence higher than similarly-situated defendants, including two of his

co-defendants who received eight-month sentences for the same offense, and did

not take into account his second-degree murder conviction, which was laden with

documented mental health issues. At his sentencing hearing, Mr. Martinez-

Rodriguez renewed the same arguments in support of a downward variance,

arguing mitigating circumstances existed because: (1) a Guidelines-range

sentence would be far greater than two of his co-defendants who, unlike him,

qualified for the fast track program because they did not have a similar murder

charge; (2) he had no other convictions other than his murder conviction; (3) and

an incompetency determination surrounded his murder charge, to which he

voluntarily pled guilty. After the district court adopted the unopposed findings of

fact in the presentence report and stated it had read Mr. Martinez-Rodriguez’s

motion for a downward variance, it denied the variance, accepting the

government’s argument his murder conviction took him out of any fast track


      1
         While Mr. Martinez-Rodriguez states that “specific evidence” provided
with his motion for a variance supported his motion, he has not provided on
appeal any indication of what “specific evidence” he presented. As a result, we
decline to speculate as to the evidence allegedly presented.

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opportunity, as compared with the other defendants who did not carry a similar

conviction, and that any competency issues concerning his murder conviction

could have been raised at a trial with a defense of insanity, instead of his pleading

guilty. The district court also explained Mr. Martinez-Rodriguez’s criminal

history category of II under-represented his criminal history given his similar

prior marijuana possession charge and numerous other serious charges involving

battery, disorderly conduct, criminal trespass, and theft. Finally, the district court

explicitly stated it had considered the sentencing factors in 18 U.S.C. § 3553(a)

and determined a twenty-seven-month sentence in this instance was “sufficient,

but not greater than necessary, to comply with that statute.” Accordingly, it

imposed a sentence, at the low end of the Guidelines range, of twenty-seven

months imprisonment.



                                    II. Discussion

      Mr. Martinez-Rodriguez now appeals his twenty-seven-month sentence by

renewing his argument it is substantively unreasonable because the district court

should have granted a variance under 18 U.S.C. § 3553(a), which requires his

sentence be sufficient but not greater than necessary to achieve the statutory

purpose of punishment. In making his argument, he again claims the sentence

imposed caused him to receive a higher sentence than similarly-situated

defendants, including two of his co-defendants, and that his “documented mental

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health issues” involved with his murder conviction warrant a lesser sentence. The

government opposes the appeal, arguing a twenty-seven-month sentence is

reasonable based on Mr. Martinez-Rodriguez’s history, which included murder by

violent attack with a metal pipe, and the need to protect the public from any

future crimes. It also argues: (1) the nature of the instant offense involving drug

trafficking is a serious crime; (2) his mental health issue surrounding his prior

murder conviction should not qualify as a valid basis for a downward variance;

and (3) any challenge to his Illinois murder conviction should be brought in an

Illinois state court or through federal habeas review. Finally, it states no

sentencing disparity exists with other similarly-situated defendants, as: (1) two

other defendants charged in the instant offense received eight-month sentences

because, unlike Mr. Martinez-Rodriguez, they did not have prior criminal records

and qualified for and received downward departures under the fast track early

disposition program; and (2) the other defendant in the instant offense received a

higher sentence of forty-one months because his criminal history category of VI

was higher than Mr. Martinez-Rodriguez’s category of II.



      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 

, 802-03, 805 (10 th Cir. 2008). “Our appellate review for reasonableness

includes both a procedural component, encompassing the method by which a

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sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” 

“A challenge to the sufficiency of

the § 3553(a) justifications relied on by the district court implicates the

substantive reasonableness of the resulting sentence.” 

The § 3553(a)

sentencing factors include not only “the nature of the offense” but the history and

“characteristics of the defendant, as well as the need for the sentence to reflect

the seriousness of the crime, to provide adequate deterrence, to protect the public,

and to provide the defendant with needed training or treatment ....” United States

v. Kristl, 

, 1053 (10 th Cir. 2006); 18 U.S.C. § 3553(a). They also

include “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). “[W]hether any such disparity justifies a sentencing variance in a

given case raises a separate question ... of substantive reasonableness ....” 

. In reviewing the substantive reasonableness of a sentence,

“[w]e may not examine the weight a district court assigns to various § 3553(a)

factors, and its ultimate assessment of the balance between them” but must “give

due deference to the district court’s decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.” 

(quotation marks and

citations omitted). Ultimately, as Mr. Martinez-Rodriguez suggests, the sentence

must be sufficient but not greater than necessary to comply with the statutory

purposes of the punishment. See 18 U.S.C.§ 3553(a).

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      Finally, if the sentence is within the correctly-calculated Guidelines range,

we may apply a presumption of reasonableness. 

. The

defendant or the government may rebut this presumption by demonstrating the

sentence is unreasonable when viewed under the § 3553(a) factors. 

55.



      In this case, the record on appeal and appeal briefs demonstrate Mr.

Martinez-Rodriguez does not contest the procedural reasonableness of his

sentence but only the substantive reasonableness based on the district court’s

application of § 3553(a). However, the district court explicitly stated it weighed

each of the circumstances presented in conjunction with the § 3553(a) factors in

determining whether to grant a variance. This included, in part, its consideration

of Mr. Martinez-Rodriguez’s history and characteristics, including his prior

murder conviction, the mental capacity issue raised in conjunction with that

conviction, and his multiple arrests, as well as “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). In considering these factors,

it is clear the district court determined a variance was not warranted, in part,

because Mr. Martinez-Rodriguez’s criminal history of multiple arrests was not

included in the calculation of his sentence and the other defendants involved in

the instant offense received different sentences because their criminal history

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differed dramatically from Mr. Martinez-Rodriguez’s. As the government points

out, the cases Mr. Martinez-Rodriguez relies on in support of his disparity

argument and a variance involve instances, unlike here, where the co-defendants’

criminal records or other circumstances did not differ substantially from the

defendant challenging his sentence and receiving a variance. As to any mental

competency issues involving his murder conviction, the Illinois court determined

Mr. Martinez-Rodriguez was competent to stand trial, after which he decided to

plead guilty to the crime of second-degree murder rather than go to trial and raise

an insanity defense or contest or appeal the competency determination or his

conviction. As to the nature of the instant offense, conspiracy to possess with

intent to distribute marijuana is a serious offense, as demonstrated by the fact the

statutory maximum penalty is twenty years imprisonment. See 21 U.S.C.

§ 841(b)(1)(C). We also note that Mr. Martinez-Rodriguez was deported

following his murder conviction and at the time of his arrest for the instant

offense admitted to entering this country illegally, which is also a serious crime

the district court could consider under the § 3553(a) factors.



      Finally, in considering the applicable factors, the district court explicitly

stated it believed the twenty-seven-month sentence in this instance was

“sufficient, but not greater than necessary, to comply with that statute.” As

previously noted, we “give due deference to the district court’s decision that the

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§ 3553(a) factors, on a whole, justify the extent of the variance.” 

. Moreover, nothing in the record or the circumstances presented

suggests the district court abused its discretion in imposing a sentence, at the low

end of the Guidelines range, of twenty-seven months, nor has Mr. Martinez-

Rodriguez rebutted the presumption of reasonableness afforded his Guidelines

sentence.



                                  III. Conclusion

      For these reasons, we AFFIRM Mr. Martinez-Rodriguez’s sentence.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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