# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 6, 2018

Decided June 19, 2018

Before

DIANE P. WOOD, Chief Judge

MICHAEL S. KANNE, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 17

‐ 2405

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

MICHAEL M. MARTINEZ,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 1:16 CR 496

‐ 1

Edmond E. Chang,

J udge

.

O R D E R

On May 5, 2016, Michael Martinez approached a car in Chicago’s Little Village

neighborhood and pointed a loaded .357 revolver at two people he believed to be rival

gang members. They instead were Chicago police detectives. Martinez’s subsequent

arrest led to his pleading guilty to being a felon in possession of a firearm, for which he

received a sentence of 117 months’ imprisonment, three months below the advisory

guidelines range. Martinez contends that the district court committed procedural errors

that affected his sentence and warrant remanding for resentencing. The record shows

otherwise, so we affirm. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 2405 Page 2

I

Martinez’s conduct in May 2016 occurred on an evening when he was under the

substantial influence of drugs and alcohol. As the two detectives saw Martinez

approaching their unmarked sedan with a drawn gun, they announced themselves as

police. Martinez then turned and ran. A brief foot chase ended with the officers catching

Martinez, seizing the drawn gun, and finding not only a second fully loaded firearm, a

.40 caliber semi

‐ automatic revolver, but also a reserve magazine with multiple rounds

of ammunition. A grand jury subsequently indicted Martinez for possessing two

firearms following a prior felony conviction, in violation of 18 U.S.C. § 922(g). Martinez

pleaded guilty, and the case proceeded to sentencing.

Sentencing began with the parties agreeing that Martinez’s advisory range under

the Sentencing Guidelines mirrored the ten

‐ year statutory maximum sentence Congress

established in section 922(g). The government then asked the district court to impose

the maximum sentence, emphasizing the gravity of Martinez’s offense conduct

(pointing a loaded gun at police officers), and his extensive criminal history (five prior

felony convictions). One of those five felonies occurred in 1988, and entailed Martinez,

in frightening similarity to the conduct that landed him in the district court, firing

gunshots into a car he believed contained rival gang members. That time the car

contained children, and resulted in Martinez murdering a 13

‐ year

‐ old girl.

For his part at sentencing, Martinez underscored aspects of his upbringing and

background that he believed mitigated against a ten

‐ year sentence. He explained that he

grew up without parental supervision, joined the Latin Kings at 14, and found himself

beholden to the grip of gang life and drug abuse, all of which ultimately resulted in

multiple criminal convictions and him spending nearly 30 years of his adult life

incarcerated. Martinez drew particular attention to extreme hardship he endured for ten

years (between 1999 and 2009) in solitary confinement in Illinois’ now

‐ shuttered Tamms

supermax facility. Life within Tamms, Martinez elaborated, entailed complete isolation

for 23 hours each day in an environment scarred by inmates experiencing severe and

recurring mental breakdowns—conditions that prevented rehabilitation. Martinez also

sought a reduced sentence by pointing to social science studies finding that the risk of

being apprehended, rather than the length of a sentence, is what most serves as a

general deterrent to crime.

After considering the totality of this information, the district court sentenced

Martinez to 117 months’ imprisonment, three months below the advisory guidelinesNo. 17

‐ 2405 Page 3

range. In doing so, the district court, after identifying the sentencing factors delineated

in 18 U.S.C. § 3553(a), emphasized that Martinez committed “the most serious form of

the felon

‐ in

‐ possession crime” by drawing a gun and pointing it at others (here, police

officers), only then to be found in possession of a second loaded gun. So, too, did the

district court highlight Martinez’s “extremely serious criminal history,” including the

1988 murder of the 13

‐ year

‐ old girl. On a more positive note for Martinez, the district

court credited him for accepting responsibility for his offense conduct as well as

participating in substance abuse programs while detained following his federal arrest.

The district court also expressly addressed Martinez’s two mitigation arguments.

First, the court recognized the mental impact that solitary confinement at Tamms had

on Martinez, making clear that this hardship was being “take[n] into account” in

determining the appropriate sentence. The district court determined that the ultimate

mitigating value of Martinez’s experience at Tamms was “very limited,” however, as

Martinez found himself in solitary confinement not because of a random decision of the

Illinois Department of Corrections, but because he had assaulted two correctional

officers. Second, the district court, while acknowledging the academic studies Martinez

had identified regarding the relative lesser importance of the length of a sentence

compared with the risk of being apprehended, concluded that considerations of general

deterrence remain an appropriate factor at sentencing.

The district court then took care to explain why, after “balancing all these

factors,” a sentence of 117 months’ imprisonment was appropriate:

I’m going to sentence you to something slightly short of [120

months] just to express some amount of optimism and hope

that you will rehabilitate, as well as to reflect the fact that

you did plead guilty, and you really could have rolled the

dice in this case at trial and probably faced a very similar

sentence.No. 17

‐ 2405 Page 4

The district court also imposed a term of three years’ supervised release, ordered

forfeiture, and imposed the mandatory $100 special assessment.

Before advising Martinez of his right to appeal and closing the proceeding, the

district court stated that it would recommend that the Bureau of Prisons provide

Martinez with substance abuse and mental health treatment, including through RDAP,

its Residential Drug Abuse Program. The district court told Martinez that “[g]etting into

that program is going to be conditioned on how well you perform, you know, in

prison” and that the program “can shave as much as like a year off your sentence.”

II

Reviewed de novo and measured against the requirements announced in Gall v.

United States

, 552 U.S. 38, 51 (2007), and our accompanying case law, we conclude that

the district court committed no procedural error in sentencing Martinez.

The record shows that the district court adequately considered the two primary

arguments Martinez advanced in mitigation. The court expressly acknowledged the

“mental impact” of the prolonged solitary confinement and other conditions Martinez

endured while confined for ten years at Tamms. Indeed, the court went further and

observed that “there is certainly room to debate how productive it is to put someone

into that segregation situation

... because then what happens when the person is

released

... and has that form of punishment actually put the person on the path of re

‐ offending.” But the district court was quick to add that Martinez landed in solitary

confinement because he had assaulted Illinois correctional officers. That Martinez

disagrees with the weight the district court chose to give his argument does not mean

the position was ignored or misunderstood. See United States v. Haskins

, 511 F.3d 688,

696 (7th Cir. 2007).

Nor did the district court disregard or improperly discount Martinez’s argument

about the limited value of long sentences to achieve general deterrence. The record

shows the opposite. The district court expressly acknowledged the academic studies

identified by Martinez and, albeit briefly, explained that those studies do not eliminate

the propriety of considering the general deterrent effect achieved by a particular

sentence—an observation on all fours with 18 U.S.C. § 3553(a)(2)(B). The law requires

no more, as a sentencing court’s discussion of a mitigating factor need not be lengthy to

be sufficient. United States v. Davis

, 764 F.3d 690, 694 (7th Cir. 2014). That is especially soNo. 17

‐ 2405 Page 5

where, as here, the district court imposed a sentence below the advisory guidelines

range. See United States v. Kappes

, 782 F.3d 828, 847 (7th Cir. 2015).

What Martinez has correct on appeal, and the government agrees, is that the

district court committed an error in encouraging him to enroll in RDAP as a way of

receiving not just substance abuse treatment but also the possibility of a reduced

sentence. Inmates like Martinez who are convicted of unlawful possession of a firearm

are ineligible for early release through RDAP. See 28 C.F.R. § 550.55(b)(5)(ii).

The district court’s erroneous statement does not in and of itself mandate

resentencing. The question is whether the district court’s inaccurate belief about

Martinez’s eligibility for early release through RDAP influenced the selection of the

ultimate sentence. See Williams v. United States, 503 U.S. 193, 203 (1992) (stating that

appellate courts should ask “whether the district court would have imposed the same

sentence had it not relied upon the invalid factor”); United States v. Smith

, 562 F.3d 866,

873–74 (7th Cir. 2009) (affirming because defendant could not show that the district

court relied on error about early

‐ release prospects in imposing sentence).

Martinez cannot satisfy this standard, for the record plainly shows that the

district court’s statements about RDAP and the potential for early release came after the

announcement of the sentence. In explaining why 117 months was an appropriate

sentence, the district judge never once referred to RDAP or its potential effect on the

overall time Martinez would serve. The fairest reading of the record is that the district

court mentioned RDAP as an after

‐ thought, as a way not of explaining any aspect of the

announced sentence, but rather of encouraging Martinez to pursue every rehabilitation

opportunity available to him while incarcerated. See, e.g.

, United States v. Hollins

, 847

F.3d 535, 540 (7th Cir. 2017) (district court’s commenting about adequacy of sobriety

programs in prison did not signal reliance on rehabilitative programming when

imposing sentence); United States v. Lucas

, 670 F.3d 784, 795 (7th Cir. 2012) (district

court’s discussing rehabilitation opportunities within prison was not erroneous).

This conclusion makes all the more sense in light of the fact, which the district

court recognized, that decisions about participation in RDAP rest entirely with the

Bureau of Prisons, not sentencing courts. See Tapia v. United States

, 564 U.S. 319, 330–31

(2011); Reeb v. Thomas

, 636 F.3d 1224, 1227 (9th Cir. 2011). The district court did not

promise Martinez admission to RDAP or in any way indicate that the intended and

appropriate sentence was anything other than 117 months’ imprisonment. In short, theNo. 17

‐ 2405 Page 6

district court did not rely on a misimpression about any potential early release as part

of deciding upon a proper sentence for Martinez.

Accordingly, we AFFIRM the judgment of the district court.