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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CR-80182-CANNON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

RIGOBERTO MARTINEZ-FLORES

Defendant.

 / 

SENTENING MEMORANDUM AND 

OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT 

Mr. Martinez-Flores requests a sentence of 14 months in this illegal reentry 

case. He does not dispute probation’s calculation of that range, 8-14 months, and 

submits a sentence within that range is sufficient, but not greater than necessary to 

achieve the purposes of sentencing set forth in 18 U.S.C. § 3553. In support, he states:

I. The guideline range adequately accounts for Mr. Martinez-Flores’s prior 

illegal reentry conviction and his prior, non-criminal deportations. 

This Court should not vary or depart upward from the guideline range because 

of Mr. Martinez-Flores’s prior conviction for illegal reentry. His guideline range twice 

accounts for that conviction as he received a 4-level increase to his offense level, [PSR 

¶ 16], and 3 criminal history points [PSR ¶ 31] because of it. As a result, his guideline 

range is 8-14 months rather than the 0-6 months it would have been without these 

increases. [PSR ¶ 32]. An upward variance is unnecessary to account for this prior 

conviction.

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Nor should this Court consider Martinez-Flores’s prior, non-criminal, 

deportations as justification to upwardly vary or depart. In 2016, the Sentencing 

Commission amended section 2L1.2 to account for prior illegal reentry convictions. 

Notice of submission to Congress of amendments to the sentencing guidelines 

effective November 1, 2016, 81 Fed. Reg. 27,261 – 27,281 (May 5, 2016) (revising 

U.S.S.G. 2L2.1 (U.S. Sentencing Comm’n. 2015)); see also, U.S. Sentencing Comm’n., 

Report on Illegal Reentry Offenses 14-15 (2015). In creating the simplified offensespecific adjustment, the Commission acknowledged both commentary from courts, 

and its own data showing “the average illegal reentry defendant [had] been removed 

from the United States 3.2 times” and more than a third of those defendants also had 

a previous reentry conviction. Id. Thus, the Commission contemplated defendants 

sentence under this guideline would have multiple prior deportations not otherwise 

accounted for in the guideline calculation.

II. Most illegal reentry defendants do not receive upward variances.

Upward variances and departures in illegal reentry cases are rare. Of the 

119,028 defendants sentenced under section 2L1.2 between 2015 and 2021, only 2,269

received an above-guideline sentence. United States Sentencing Commission, 

Sentences Relative to Guideline Range, INTERACTIVE DATA ANALYZER, 

http://ida.ussc.gov/analytics/saw.dll?Dashboard (from the top ribbon menu, select 

“Guideline Application” hyperlink, and under the “Primary Guideline” filter select § 

2L1.2 (for local statistics, under the “Geography” filter also select as District “Florida, 

Southern”), and scroll to the Sentences Imposed Relative to Guideline Range data 

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table for raw numbers and percentages). Even accounting for Mr. Martinez-Flores’s 

category II criminal history, the percentage of above-guideline sentences remains the 

same – approximately 1.9%. Id. (still using the same table with the 2L1.2 Primary 

Guideline filter, select Category II under the “Criminal History” filter.”).

III. Mr. Martinez-Flores personal history and characteristics also warrant a 

within-guidelines sentence. 

Mr. Martinez-Flores was born in Honduras in the poorest of socio-economic 

conditions. [PSR ¶ 41]. Growing up, he lived in a hut with sand for floors and no 

running water. [PSR ¶ 41]. His family often went without food or electricity, 

particularly after a gang murdered his father because he refused to pay them their 

extortion fees. [PSR ¶ 41]. Like so many immigrants, Mr. Martinez-Flores came here 

for a better life and found one. He has two adult children and one 10-month old son. 

And while he has had some troubles with the law, his last criminal conviction was 

more than 12 years ago. 

IV. The Government agrees with the 14-month sentencing 

recommendation. 

Undersigned counsel has discussed this case with AUSA Rinku Tribuiani and 

she advised the government will jointly recommend a sentence at the high end of the 

advisory guideline range, that being, 14 months. The government will make that 

recommendation for reasons different than those contained in this memorandum. 

V. PSR Objections

Mr. Martinez-Flores objects to paragraph 37 and denies the factual allegations 

therein. He also notes typographical errors on page 3 (indicating Mr. Martinez-Flores 

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is United States Citizen – he is not) and in paragraph 5 (indicating he was ordered 

deported on September 16, 1994 and then deported three months earlier on June 22, 

1994). These objections do not affect the guideline calculation. 

Conclusion 

In short, Mr. Martinez-Flores’s case is mine-run and should be treated as such. 

The guidelines account for his history – both criminal and otherwise. His story is 

similar to the thousands of illegal immigrants processed through our criminal justice 

system every year. There is simply no reason to treat him differently than the average 

defendant in his situation. 

 Respectfully submitted,

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

s/Scott Berry 

Scott Berry, B.C.S.

Assistant Federal Public Defender

Attorney for Defendant

Bar Number: 0525561

450 South Australian Avenue

Suite 500

West Palm Beach, Florida 33401

Phone: (561) 833-6288

Fax: (561) 833-0368 

Email: scott_berry@fd.org

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CERTIFICATE OF SERVICE

I HEREBY certify that on March 17, 2023, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record or pro se parties identified 

on the attached Service List in the manner specified, either via transmission of 

Notices of Electronic Filing generated by CM/ECF or in some other authorized 

manner for those counsel or parties who are not authorized to receive electronically 

Notices of Electronic Filing.

 By: s/Scott Berry

 Scott Berry

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