Filed: Sep. 08, 2020
Latest Update: Sep. 08, 2020
Summary: Case: 19-40581 Document: 00515555455 Page: 1 Date Filed: 09/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 8, 2020 No. 19-40581 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Marcelino Hernandez-Martinez, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 7:18-CR-873-2 Before Clement, Higginson, and Engelhardt, Circuit Ju
Summary: Case: 19-40581 Document: 00515555455 Page: 1 Date Filed: 09/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 8, 2020 No. 19-40581 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Marcelino Hernandez-Martinez, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 7:18-CR-873-2 Before Clement, Higginson, and Engelhardt, Circuit Jud..
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Case: 19-40581 Document: 00515555455 Page: 1 Date Filed: 09/08/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 8, 2020
No. 19-40581
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Marcelino Hernandez-Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-873-2
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Marcelino Hernandez-Martinez pleaded guilty to conspiring to harbor
undocumented aliens within the United States and conspiring to possess with
intent to distribute 100 kilograms or more of marijuana. After determining
that a within-guidelines sentence was warranted, the district court sentenced
*
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opinion should not be published and is not precedent except under the limited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. 19-40581
him to concurrent prison terms of 108 months for the alien-harboring
conspiracy and 135 months for the drug trafficking conspiracy, to be followed
by four years of supervised release.
On appeal, Hernandez-Martinez argues that the district court erred
by attributing to him the 535.99 kilograms of marijuana seized on July 21,
2017, and the 255.37 kilograms of marijuana seized on August 2, 2017.
Although he also vaguely refers to a “September 17, 2017 seizure,” the
record does not reflect any offense conduct on that date. Hernandez-
Martinez asserts that inclusion of the quantities seized on July 21 and August
2 constituted error because (1) there was no evidence that he was involved on
those occasions, and (2) the Government failed to show that either incident
was part of the same course of conduct or common scheme or plan as the
charged conspiracy.
Contrary to Hernandez-Martinez’s contentions, the district court’s
finding that he was involved on the multiple occasions was plausible in light
of the record as a whole. See United States v. Nava, 957 F.3d 581, 586 (5th
Cir. 2020); United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005).
Hernandez-Martinez admitted that “he conspired and agreed with other
persons to possess the marijuana by agreeing to pick it up near Mission,
Texas, as well as other nearby cities, and then transport and deliver the
controlled substance to other individuals.” He further conceded that “he
did so on multiple occasions from on or about July 21st, 2017, to on or about
May 10th, 2018.” The presentence report (PSR) detailed that for the July 21
seizure, a search of a GMC Yukon—abandoned near the Rio Grande River
following a pursuit—yielded positive results for Hernandez-Martinez’s
fingerprints. Less than two weeks later, on August 2, Border Patrol agents
intercepted a Chevrolet Tahoe engaged in marijuana smuggling along the
river. Inside the Tahoe was a cellphone, which, based on the photographs
found therein, could reasonably be inferred to have belonged to Hernandez-
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No. 19-40581
Martinez or an associate. See United States v. Coleman, 609 F.3d 699, 708
(5th Cir. 2010). The photographs found in the cellphone also provided
another link to the Yukon abandoned on July 21. In sum, because there was
reliable evidence linking Hernandez-Martinez to the marijuana seized on July
21 and August 2, the record supports the district court’s finding in this
regard. See
Betancourt, 422 F.3d at 246.
Plain error review applies to the second aspect of Hernandez-
Martinez’s challenge to the inclusion of the July 21 and August 2 seizures as
relevant conduct because Hernandez-Martinez did not object on this specific
basis in district court. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Neal,
578 F.3d 270, 272 (5th Cir. 2009). Our examination of
the superseding indictment, the admitted-to factual basis, and the specific
facts presented in the PSR does not reveal any clear or obvious error as to the
inclusion of the July 21 and August 2 seizures as relevant conduct under
U.S.S.G. § 1B1.3(a). See
Puckett, 556 U.S. at 135.
Next, Hernandez-Martinez contends that the district court erred by
failing to reduce his offense level pursuant to U.S.S.G. § 3B1.2 because he
was a minimal or minor participant in the alien-harboring conspiracy. Here,
the facts detailed in the PSR supported that Hernandez-Martinez was a
primary caretaker of the stash house where the undocumented aliens were
being harbored, that he oversaw other caretakers of the stash house, and that
he issued several directives to the aliens and forced them to load bundles of
marijuana into vehicles. Given these facts, Hernandez-Martinez has not
shown that he was substantially less culpable than the average participant in
the alien-harboring conspiracy. See § 3B1.2, comment. (n.3(A)).
Accordingly, the district court’s determination that he was not entitled to a
minor or minimal role reduction is not clearly erroneous. See United States v.
Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016).
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No. 19-40581
Finally, while Hernandez-Martinez argues that the district court
should have granted him a downward departure pursuant to U.S.S.G.
§ 4A1.3(b)(1), p.s., based on an over-represented criminal history, there is no
indication that the district court mistakenly believed that it lacked the
authority to depart. We therefore lack jurisdiction to review this issue. See
United States v. Jefferson, 751 F.3d 314, 322-23 (5th Cir. 2014).
The judgment of the district court is AFFIRMED.
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