IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50643

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

RICHARD MARTINEZ, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Western District of Texas 

Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges. 

JAMES E. GRAVES, JR., Circuit Judge:

In this appeal, Richard Martinez challenges both his conviction and his 

sentence. Martinez asserts that the district court reversibly erred at trial by 

denying his motion to reopen the evidence to permit him to testify. With 

respect to sentencing, Martinez asserts that the district court attributed an 

erroneous quantity of methamphetamine to him when calculating his base 

offense level. Further, he contends the district court failed to adequately 

explain the basis for his sentence. We AFFIRM. 

BACKGROUND 

Martinez was arrested on December 7, 2015, after a traffic stop in 

Austin, Texas. Officers stopped Martinez for an unsafe lane change, and they 

United States Court of Appeals

Fifth Circuit

FILED

September 26, 2017

Lyle W. Cayce

Clerk

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No. 16-50643

2 

soon discovered liquid methamphetamine hidden in the fuel tank of Martinez’s 

truck. 

Trial and denial of motion to reopen 

 A federal grand jury returned a two-count indictment against Martinez. 

The indictment charged Martinez with (1) conspiracy to possess with intent to 

distribute 500 grams or more of methamphetamine (21 U.S.C. §§ 841(a)(1), 

841(b)(1)(A), 846) and (2) possession with intent to distribute 500 grams or 

more of methamphetamine (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)). 

Martinez entered a plea of not guilty, and the matter proceeded to a jury 

trial. The Government rested in the morning of the second day of trial, at which 

point Martinez unsuccessfully moved for acquittal pursuant to Fed. R. Cr. P. 

29. Martinez then rested, and both the Government and defense closed their 

cases. 

The court informed the jury that it would not hear any more evidence, 

and placed the jury into recess from 10:10 a.m. until 1:30 p.m. Outside the 

presence of the jury, counsel briefly discussed the jury charges. Around 10:15 

a.m., the court placed itself in recess. When the court returned to the bench at 

11:30 a.m., defense counsel immediately informed the court that Martinez 

wished to reopen the evidence and testify. 

The court denied Martinez’s oral motion to reopen. From start to finish, 

the colloquy between the court and counsel regarding the motion lasted only 

about ninety seconds.1 

 

1 The brief exchange unfolded as follows: 

DEFENSE: My client had a discussion with me during the interlude, and has 

asked me to ask you to let him testify, but we would have to request to reopen. And I 

told him that was a matter within your discretion. My advice to him is my advice to 

him, but that’s what his decision is at this point. I did ask him -- just for the record, I 

did ask him about that in great detail before we closed.

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The jury ultimately convicted Martinez of possession with intent to 

distribute and acquitted him of conspiracy to distribute methamphetamine. 

Sentencing

Relying upon a law enforcement laboratory report concerning the 

substances recovered from Martinez’s fuel tank, the PSR attributed 22.302 

kilograms of methamphetamine (actual) and 879.317 grams of “ice” 

methamphetamine to Martinez. Under the 2015 U.S. Sentencing Guidelines 

Manual, this produced a base offense level of 38. No adjustments applied. 

Combined with Martinez’s criminal history category of I, the PSR computed a 

guideline imprisonment range of 235 months to 293 months. 

 Martinez submitted a lengthy series of pro se objections to the PSR. The 

most pertinent, read broadly, contends that his truck’s fuel tank could not hold 

the amount of liquid methamphetamine attributed to him. Specifically, 

Martinez asserted that, though he did not know “how to weigh or measure” the 

 

THE COURT: I understand. I gave you plenty of time to do that.

DEFENSE: I know. I just wanted to put that on the record I did do that. Okay. 

So he did -- we did have that discussion prior to closing our case.

THE COURT: Can you state, for the record, that you are not advising him to 

testify? 

DEFENSE: Well, I’ll state, for the record, that I advised him of why it would 

not be a good idea to testify in full detail, but that it was his decision.

THE COURT: What says the government?

GOVERNMENT: You know, at this point, I’ll object. I mean, this man’s 

yanking the system around.

THE COURT: Well, I sustain. I’m not going to reopen the case. We’ve already 

told the jury that they’re through. You’ve got the charges in your hand. And --

GOVERNMENT: Just for the record, my other reasons are, I had three 

rebuttal witnesses waiting in the hallway just in case he did that, and I’ve released 

them all and they’re all back on duty somewhere in the county.

THE COURT: Well, no question that in my mind, it would not be beneficial 

for Mr. Martinez to testify.

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drugs, there was “no way [he] had all that” methamphetamine because “that 

[amount] does not fit [in] a gas tank.” 

Defense counsel also moved for a downward variance “based on a policy 

disagreement with the present methamphetamine guideline.” Counsel asked 

the court to consider the statutory minimum sentence of ten years. 

At the sentencing hearing, the district court overruled Martinez’s 

objections and imposed a 235-month prison sentence, which represented the 

bottom of the guidelines range. Near the end of the hearing, defense counsel 

stated that Martinez wished to appeal in part based on a claim of ineffective 

assistance of counsel. In connection with that possibility, the court indicated 

that it would permit defense counsel’s withdrawal upon filing of the 

appropriate paperwork, and would then appoint new counsel if Martinez did 

not hire a lawyer. Defense counsel’s last comment at the hearing was this 

remark: “He [i.e., Martinez’s presumptive replacement counsel] would 

probably object to the reasonableness of the sentence. I will do that on your 

behalf.” 

STANDARDS OF REVIEW

Motion to reopen 

“Generally, the reopening of a criminal case after the close of evidence 

lies within the sound discretion of the [district] court.” United States v. Walker, 

772 F.2d 1172, 1177 (5th Cir. 1985) (quoting United States v. Ramirez, 608 

F.2d 1261, 1267 (9th Cir. 1979)). “The district court’s decision whether or not 

to reopen the evidence will be overturned on appeal only upon a showing that 

it abused its discretion.” Id. (citing United States v. Thetford, 676 F.2d 170, 182 

(5th Cir. 1982), cert. denied, 459 U.S. 1148 (1983)). 

 “In Thetford, we outlined factors which the district court ‘must’ consider 

in exercising its discretion,” which include “the timeliness of the motion, the 

character of the testimony, and the effect of the granting of the motion.” Id. 

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(quoting Thetford, 676 F.2d at 182). “The party moving to reopen should 

provide a reasonable explanation for failure to present the evidence in its casein-chief.” Id. (quoting Thetford, 676 F.2d at 182). “The evidence proffered 

should be relevant, admissible, technically adequate, and helpful to the jury in 

ascertaining the guilt or innocence of the accused.” Id. (quoting Thetford, 676 

F.2d at 182). “The belated receipt of such testimony should not imbue the 

evidence with distorted importance, prejudice the opposing party’s case, or 

preclude an adversary from having an adequate opportunity to meet the 

additional evidence offered.” Id. (quoting Thetford, 676 F.2d at 182 (quoting 

United States v. Larson, 596 F.2d 759, 778 (8th Cir. 1979)). 

Procedural reasonableness of sentence 

“This court reviews ‘the district court’s interpretation or application of 

the sentencing guidelines de novo, and its factual findings for clear error.’” 

United States v. Groce, 784 F.3d 291, 294 (5th Cir. 2015) (quoting United States 

v. Scott, 654 F.3d 552, 555 (5th Cir. 2011)). “We do not afford deference to the 

district court in the review of mathematical error in a sentencing guideline 

calculation.” United States v. Severin, 221 F. App’x 299, 301 (5th Cir. 2006) 

(unpublished) (citing Koon v. United States, 518 U.S. 81, 98 (1996)). 

DISCUSSION 

I. Motion to reopen 

We review the district court’s decision to deny the motion to reopen in 

light of the following four factors: (1) the timeliness of the motion; (2) the 

character of the testimony the movant wishes to present; (3) the effect of 

granting the motion; and (4) the reasonableness of the movant’s excuse for 

failing to present the evidence in his case-in-chief. See Walker, 772 F.2d at 

1177–84. As discussed below, we conclude that each of the first three factors 

favor, or do not weigh against, Martinez. However, Martinez’s failure to 

provide the district court with a reasonable explanation for not exercising the 

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opportunity to testify before closing his case persuades us that the district 

court did not abuse its discretion by denying Martinez’s motion. 

A. Timeliness of the motion 

 Martinez moved to reopen just under 1.5 hours after both parties rested 

and closed the evidence. This period of time is similar to or shorter than several 

other intervals after which this court has deemed motions timely. See United 

States v. Parker, 73 F.3d 48, 53–54 (5th Cir. 1996) (concluding that “a delay of 

one hour, during which the court took its normal lunch break” weighed in favor 

of the movant), reh’g en banc granted and opinion vacated, 80 F.3d 1042 (5th 

Cir. 1996), and opinion reinstated in pertinent part on reh’g, 104 F.3d 72 (5th 

Cir. 1997); see also United States v. Rodriguez, 43 F.3d 117, 125–26 (5th Cir. 

1995) (concluding that a motion “was timely made” when the parties closed the 

evidence one evening, and the defendant moved to reopen the following 

morning, prior to closing argument). In Walker, we stated the delay between 

the close of evidence on a Friday and the defense’s motion to reopen the 

following Monday “weigh[ed] against [the defendant’s] position on appeal,” but 

was “minor” and “not . . . such a significant factor as to govern the disposition.” 

772 F.2d at 1177–78. 

Given the short time period between the closing of the evidence and 

Martinez’s motion, and because Martinez moved to reopen before closing 

arguments and the jury charge, the timing of the motion weighs in Martinez’s 

favor. 

B. Character of the testimony 

 In Walker, we deemed the defendant’s “testimony in his own defense . . . 

of such inherent significance that the district court, as a matter of fairness, 

should have permitted him to testify.” 772 F.2d at 1178–79. There, the 

defendant “had not testified at all,” and we reasoned that “his testimony would 

be of particular interest to the fact finder because he would be testifying as the 

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alleged active participant in the activities which were the focus of the trial.” 

Id. at 1179. “Where the very point of a trial is to determine whether an 

individual was involved in criminal activity,” we stated, “the testimony of the 

individual himself must be considered of prime importance.” Id.; see also 

Parker, 73 F.3d at 54 (holding that this factor weighed in favor of a defendant 

who wished to testify regarding “the one disputed fact in the trial” and who 

“was the only source of testimony available . . . to question [an] eyewitness 

account”). Testimony that would merely be cumulative of other evidence, 

however, may weigh against a motion to reopen. See Rodriguez, 43 F.3d at 126. 

 Martinez states that his defense turned on disavowing knowledge of the 

methamphetamine in his truck, and argues that “only [he] could have provided 

testimony” to rebut testimony law enforcement officers gave regarding the 

arrest. In response, the Government emphasizes the lack of any proffer and 

highlights defense counsel’s statement to the district court that “it would not 

be a good idea [for Martinez] to testify in full detail.” The Government also 

contends Martinez’s testimony would not have been helpful because the 

Government could have marshalled additional impeachment evidence against 

his likely testimony. 

 The lack of a formal proffer is not fatal to Martinez’s motion. In Walker, 

“no formal proffer of the content of [the defendant’s] testimony was timely 

made. . . .” 772 F.2d at 1179. We cautioned that “in other circumstances this

might count heavily against him,” but under the circumstances presented in 

Walker, we “[did] not regard it as of any real significance.” Id. The court 

described the relevant circumstances as follows: 

Neither the court below nor government counsel even 

obliquely raised any question in this regard, and 

indeed it was evident that the government would 

oppose, and the court would deny, the request to 

reopen regardless of any proffer concerning the 

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content of Walker’s proposed testimony. Moreover, it 

was obvious what Walker (who had not already 

testified) would testify about-namely, his version of his 

own conduct and statements as portrayed by the 

government’s witnesses and asserted by the 

prosecution as constituting the offenses charged. 

These were matters that were, in the vast majority of 

instances, not covered by the testimony of any of the 

defense witnesses. It is and was unmistakable, 

undisputed, and obvious that Walker’s testimony 

would have been highly relevant and significant and 

in no meaningful sense cumulative. Plainly, Walker’s 

testimony had “exculpatory potential” and “would 

have enhanced appellant’s defense.” Apart from what 

appellant would have testified to, his presence on the 

stand would have afforded him the opportunity to have 

the jury observe his demeanor and judge his veracity 

firsthand. 

Id. (quoting Larson, 596 F.2d at 779).

Several of these circumstances are similar to Martinez’s case. Neither 

the court nor the Government pressed defense counsel for a proffer. It was 

obvious that Martinez would have told “his version” of events. The potential 

for cumulative testimony was low, as Martinez would have become the only 

defense witness. Though defense counsel believed Martinez’s desire to testify 

“would not be a good idea,” and the Government might have impeached 

Martinez’s testimony, Martinez’s presence on the stand “would have afforded 

him the opportunity to have the jury observe his demeanor and judge his 

veracity firsthand.” See id. 

 We conclude that the character of Martinez’s likely testimony weighs in 

favor of his motion. 

C. Effect of granting the motion 

“The belated receipt of [the defendant’s] testimony should not ‘imbue the 

evidence with distorted importance, prejudice the opposing party’s case, or 

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preclude an adversary from having an adequate opportunity to meet the 

additional evidence offered.’” Walker, 772 F.2d at 1177 (quoting Thetford, 676 

F.2d at 182 (quoting Larson, 596 F.2d at 778)). As in Walker, Martinez’s motion 

to reopen came before the jury had been charged and before closing arguments 

commenced, see 772 F.2d at 1179, so the flow of trial would not have been 

significantly altered by permitting Martinez to testify. 

The Government observes that in this case, the Government had already 

released its rebuttal law enforcement witnesses “back on [to] duty somewhere 

in the county.” This is a distinction from Walker, where “there [was] no 

suggestion in the record . . . that the government let any potential rebuttal 

witnesses go.” Id. at 1180. But as Martinez notes, the witnesses had only 

recently been released when Martinez moved to reopen. The Government offers 

no concrete explanation of the prejudice associated with recalling them, outside 

of stating that “the officers would not have been expecting to be called back, 

which might have made reaching them difficult.” 

The Government also argues Martinez’s testimony could have confused 

jurors and might have required delays for the preparation of new jury 

instructions. The district court could have mitigated the risk of jury confusion 

through a cautionary instruction. See Parker, 73 F.3d at 54 (“It is clear to us 

that, with proper cautionary instruction, the jury could have adequately 

weighed the additional testimony.”). Moreover, shortly before Martinez moved 

to reopen, the Government indicated that it had already prepared a jury 

instruction for use in the event Martinez testified. 

Under these circumstances, the likely effects of granting Martinez’s 

motion do not weigh against him. 

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D. Reasonableness of Martinez’s excuse 

Martinez offered the district court no specific justification for his belated 

decision to testify. In fact, defense counsel stated that he asked “in great detail 

before . . . clos[ing]” about Martinez’s desire to testify. 

On appeal, Martinez argues that “he was in an unfamiliar setting,” was 

in “an agitated and emotional state,” and “had very little time to make one of 

the most important decisions in his life.” The Government criticizes Martinez 

for failing to articulate these excuses below. 

 While Walker says the district court “must” consider the first three 

factors discussed above, it does not use the same mandatory language with 

respect to the movant’s excuse. See 772 F.2d at 1177 (“The party moving to 

reopen should provide a reasonable explanation for failure to present the 

evidence in its case-in-chief.”) (quoting Thetford, 676 F.2d at 182). Accordingly, 

Martinez’s failure to provide a specific excuse below is not inherently fatal to 

his appeal. 

That failure did, however, bring the district court’s decision to deny 

Martinez’s motion within the proper scope of its discretion. The court heard no 

excuse, and was instead informed that defense counsel spoke in detail with 

Martinez about testifying before closing the defense’s case. Although we 

conclude the first three factors weigh in Martinez’s favor, or are neutral to him,

this factor weighs against Martinez and provides a sufficient basis for the 

district court’s discretionary ruling. 

II. Methamphetamine quantity 

 The PSR attributed to Martinez 22.302 kilograms of methamphetamine 

(actual) and 879.317 grams of “ice” methamphetamine. Martinez challenges 

both figures. 

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A. Methamphetamine (actual) 

Martinez contends that the PSR’s calculation of the amount of 

methamphetamine (actual) at issue lacks an adequate evidentiary basis. He 

focuses on the data presented in the laboratory report the PSR referenced. The 

laboratory report set forth the results of testing performed on several buckets 

of liquid pumped out of Martinez’s fuel tank. Martinez maintains that the 

report lacks two essential data points: (1) the volume of the 

methamphetamine-containing liquid in each bucket; and (2) the weight of 

methamphetamine hydrochloride (i.e., the type of methamphetamine the 

report identified in the buckets) per unit of volume. 

Martinez notes that the only unit of measurement provided in this report 

is a unit of mass/weight (here, kilograms). He highlights testimony from the 

report’s author, who stated that she quantified the “concentration” of

methamphetamine in each bucket and observed small variations in the 

concentration between buckets. “Concentration” refers to the measure of a 

substance present in a given unit of volume of a solution or mixture. See 

Concentration, OXFORD ENGLISH DICTIONARY (3d ed. 2015) (definition 5.b). 

The PSR’s attribution of 22.302 kilograms of methamphetamine (actual) 

to Martinez matches the quantity one would calculate from the laboratory 

report by multiplying each liquid-containing bucket’s “net weight” by the 

indicated percentage of methamphetamine hydrochloride. The 2015 

Sentencing Guidelines, which applied to Martinez’s sentence, specifically 

offered a similar weight-based example, stating: “[A] mixture weighing 10 

grams containing PCP at 50% purity contains 5 grams of PCP (actual).” 

U.S.S.G. § 2D1.1(c), cmt. n.(B) (2015 ed.). The Government submits that the 

sentencing court’s adherence to the weight-based example in the guidelines 

cannot constitute reversible error. 

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Martinez’s “concentration” argument was not clearly presented below. 

Martinez relies on statements from his pro se objections, but those objections 

did not bring the specific calculation error Martinez now alleges into adequate 

focus.2 Plain error review therefore applies. We hold that any error in the 

district court’s calculation would not have been “clear or obvious,” particularly 

in light of the 2015 Sentencing Guidelines’ example calculation, and therefore 

could not have constituted reversible plain error.3 

B. “Ice” methamphetamine 

Similarly, Martinez argues that the record does not contain the data 

necessary to compute the quantity of “ice” methamphetamine seized. The 

laboratory report relied upon by the PSR identified two quantities of a “white 

crystalline substance” as d-methamphetamine hydrochloride. The reported 

“net weight” of these two samples would total approximately 927 grams. To 

arrive at the approximately 879 grams of “ice” methamphetamine attributed 

to Martinez, the PSR apparently multiplied each sample’s “net weight” by the 

indicated percentage of “hydrochloride salt.” 

Martinez argues that the record lacks evidence “as to the purity or 

nature of the hydrochloride salt,” and contends the PSR lacked any basis for 

concluding the hydrochloride salt consisted of at least 80% dmethamphetamine hydrochloride. See U.S.S.G. § 2D1.1(c), Notes to Drug 

 

2 By way of example, one of Martinez’s pro se writings stated: “I object[,] no way I had 

all that . . . your [sic] adding ghost dope . . . I’m not good at math[,] but I’ve been told all that 

does not fit [in] a gas tank . . . I don’t know how to weigh or measure this but it sounds 

impossible.” Statements of this sort were not sufficiently specific to notify the district court 

of the nuanced argument Martinez asserts on appeal. 

3 Martinez also argues the district court erred by failing to determine how much of the 

methamphetamine-containing mixture was “usable.” We disagree. The PSR relied upon the

calculation of the actual amount of methamphetamine in each bucket of liquid, not the weight 

of the mixtures. 

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Quantity Table (C) (2015 ed.) (“‘Ice,’ for the purposes of this guideline, means 

a mixture or substance containing d-methamphetamine hydrochloride of at 

least 80% purity.”). Again, Martinez did not clearly raise his current 

arguments below and we review only for plain error. 

We hold that the district court did not clearly or obviously err by reading 

the percentage notations in the lab report as purity levels. Additionally, even 

if the “ice” methamphetamine calculation amounted to plain error, that error 

would be harmless. The district court’s calculation of methamphetamine 

(actual), which we affirm for the reasons previously stated, provides an 

independent basis under which Martinez’s base offense level would remain at 

38. See U.S.S.G. § 2D1.1(c), drug quantity table (2015 ed.) (prescribing a base 

offense level of 38 for “45 KG or more of Methamphetamine, or 4.5 KG or more 

of Methamphetamine (actual), or 4.5 KG or more of ‘Ice’”). 

III. Explanation of Martinez’s sentence 

Martinez contends the district court erred by sentencing him without an 

adequate explanation. We find no reversible error. 

In this case, the court selected a sentence at the bottom of the guidelines 

range. “[W]hen a judge decides simply to apply the Guidelines to a particular 

case, doing so will not necessarily require lengthy explanation.” Rita v. United 

States, 551 U.S. 338, 357 (2007). “The sentencing judge should,” however, “set 

forth enough to satisfy the appellate court that he has considered the parties’ 

arguments and has a reasoned basis for exercising his own legal 

decisionmaking authority.” Id. at 356.

The parties dispute the applicable standard of review. Martinez contends 

his counsel’s general objection “to the reasonableness of the sentence” 

preserved his current argument for abuse of discretion review. The 

Government contends plain error review applies. United States v. MondragonSantiago resolves this dispute in favor of plain error review. See 564 F.3d 357, 

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361 (5th Cir. 2009) (applying plain error review after concluding that an 

objection generally arguing that a sentence was “greater than necessary” 

would not put the district court on notice “that the defendant wanted further 

explanation of the sentence”). 

To prevail on plain error review, Martinez must show that the alleged 

error affected his substantial rights. See id. at 361. “To show that an error 

affects a defendant’s substantial rights, the defendant must show that it 

affected the outcome in the district court . . . .” Id. at 364. Martinez argues that 

his substantial rights were affected because the exercise of rendering an 

adequate explanation may have prompted the court to consider a different 

sentence, and might have refocused the district court on the question of 

whether safety valve relief was available. 

“We afford great deference to sentences within the Guidelines range, and 

we ‘infer that the judge has considered all the factors for a fair sentence set 

forth in the Guidelines in light of the sentencing considerations set out in § 

3553(a).’” Id. at 365 (quoting United States v. Campos-Maldonado, 531 F.3d 

337, 338 (5th Cir. 2008)). “While a district court errs by failing to explain a 

sentence, the effect of that error on our review for reasonableness is diminished 

when the sentence is within the Guidelines range.” Id. 

Martinez’s speculation that the district court might have reconsidered 

his sentence in the course of providing a fuller explanation is too uncertain to 

carry his burden of demonstrating the alleged error affected the result below. 

Therefore, even if the district court erred by giving an inadequate explanation 

(an issue we need not decide), that error would not be reversible on plain error 

review. 

CONCLUSION 

For the reasons set forth above, we AFFIRM Martinez’s conviction and 

sentence. 

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