UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 22-CV-81969-RLR

20-CR-80031-RLR

 

ANTONIO JOSE MARTINEZ, 

Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

Defendant. 

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION 

This matter comes before the Court on the Motion of Plaintiff, Antonio Jose Martinez 

(“Martinez”), to vacate, set aside, or correct his 96-month sentence on the ground that his trial 

counsel was constitutionally ineffective by agreeing with the Government to jointly recommend 

his sentence without conferring with Martinez. DE 1, DE 3. The Motion was referred to the

Magistrate Judge for a Report and Recommendation. DE 4. The Government filed a Response to 

the Motion, [DE 7], and Martinez filed a Reply. DE 8. The Magistrate Judge issued a Report and 

Recommendation recommending that the Motion be denied. DE 9. Martinez filed an Objection 

to the Report and Recommendation, [DE 10], and the Motion is ripe for review. 

The Court has thoroughly reviewed the Report and Recommendation, the parties’ briefing 

on the Motion, Martinez’s Objection, and the record, and is fully advised in the premises. Upon 

review, the Court finds the Magistrate Judge’s recommendations to be well-reasoned and correct, 

and the Court agrees with the factual recitation and the analysis in the Report and 

Recommendation. The Court adopts the Report and Recommendation and addresses Martinez’s 

Objections below. 

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Martinez objects to the recommendation that his Motion be denied; specifically, he objects 

to the conclusion that “[b]ecause Mr. Martinez has not shown that the Court would have imposed 

a different sentence but for the joint recommendation, he has failed to satisfy the prejudice prong 

of the Strickland test for ineffective assistance of counsel.” DE 10 at 3. 

The Objection argues that Martinez’s trial counsel was ineffective based on an agreement 

between counsel and the Government to jointly recommend a 96-month sentence. Id. Martinez 

argues he was unaware of the agreement and, as a result, he received a higher sentence than he 

would have received had the agreement not been made. Id. at 5-6. He argues that the guideline 

range was 57-71 months, so his worst-case scenario was 71 months unless the Court varied 

upward. Id. However, Martinez focuses solely on his lack of knowledge of this agreement and 

ignores critical facts and circumstances leading to the joint recommendation. 

First, Martinez faced a mandatory minimum sentence of 120 months, which could have 

extended to life imprisonment. CR DE 104. If Martinez qualified for the “safety valve” provision 

pursuant to U.S.S.G. §5C1.2 and 18 U.S.C. §3553(f), his guideline range would have been 57-71 

months; however, the presentence investigation report recommended that Martinez would not 

qualify for the safety valve and recommended a sentencing range beginning at 120 months. CR 

DE 112. Martinez objected to the report and argued that he qualified for the safety valve reduction. 

CR DE 113. The Government responded to the objection and provided multiple, detailed reasons 

that Martinez did not qualify for the reduction, including that Martinez was unwilling to truthfully 

provide information to the Government concerning the offense, that Martinez minimized his 

conduct and the amount of cocaine he acquired and distributed, that Martinez had been investigated 

numerous times in connection with drug trafficking since the 1990s, that law enforcement had 

warned Martinez to stop selling drugs, that Martinez, and that wiretaps in Martinez’s cell phone 

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revealed extensive drug activity. DE 7 at Ex. 5; CR DE 131. The Government argued that Martinez 

should not receive the reduction and also stated that, should the Court determine that Martinez did 

qualify, the Government would seek an upward variance from the advisory guideline range. Id.

Thus, before the agreement of 96 months was reached, the Government made it clear to Martinez 

that it would seek a sentence significantly higher than the guideline range. 

Second, at both the change of plea hearing and sentencing hearing, Martinez had multiple 

opportunities to raise any issues regarding his sentence. The plea agreement clearly provided that 

the statutory minimum for Martinez’s offense was 10 years, up to a maximum of life 

imprisonment. DE 7 at Ex. 2 ¶ 4. At the change in plea hearing, Martinez stated that he understood 

the minimum and maximum sentences he could face and understood the Court could depart 

upward or downward. Id. at Ex. 4. Then, at the sentencing hearing, the Government and Martinez’s 

counsel explained that the Government was seeking a “much more significant sentence” than the 

guideline range and that Martinez was seeking a sentence below the guideline range, so the parties 

agreed on a “midpoint” between the mandatory minimum and the guideline range. DE 7 at 5 & 

Ex. 6 at 4-11. At that point, the Government provided multiple reasons for an upward variance. 

Id. The Court gave Martinez opportunities to raise any issues or questions with the Court. Id. at 4, 

10-11. 

In addition, during sentencing, the Government also explained that it “made it known to 

counsel that we were going to object to the safety valve reduction.” Id. at 6. The day before the 

hearing, Martinez met with Government attorneys to modify his original safety valve statement 

and provide further information, and the Government was satisfied with Martinez’s responses. Id.

at 6-7. During the hearing, Martinez’s counsel explained to the Court that the parties reached an 

agreement that morning to jointly recommend 96 months and that Martinez did not object to the 

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upward variance. The Government reminded the Court of the reasons for an upward variance, 

particularly “the length of time that Mr. Martinez had been selling cocaine, the amounts of cocaine

he had been selling, the fact that he had been previously warned by law enforcement to stop and 

he had not heeded that warning, and so on and so forth.” Id. at 11-12. 

The Court took note not only of the parties’ agreement and Martinez’s lack of objection, 

but also specifically of the bases for the upward variance. Id. The Court explained that it considered 

the parties’ statements and the statutory factors, provided explicit reasons for the upward departure, 

and concluded that 96-months was appropriate. Id. at 13-14. 

Whether there was ineffective assistance of counsel is measured under the two-prong test 

from Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a criminal defendant to 

show that: (1) counsel’s performance was deficient and (2) the deficiency prejudiced him. Id. at 

690. The Objection focuses on the second prong, whether Martinez can show prejudice. To 

establish prejudice, a defendant must show that, but for counsel’s deficient performance, there is 

a reasonable probability the outcome of the proceedings would have been different. Strickland, 

466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome of the proceedings. Id. “[I]n order to show prejudice under Strickland’s two-part test,

a defendant must demonstrate a reasonable probability that: (1) he would have accepted a plea 

offer but for counsel's ineffective assistance; and (2) the plea would have resulted in a lesser charge 

or a lower sentence.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012) (citing Frye, 566 U.S. at 147, 

and Lafler, 566 U.S. at 174).

Martinez argues that simply because the 96-month sentence is above the guideline range, 

he has established prejudice. DE 10 at 5; DE 8 at 3-4. The Report and Recommendation determined 

that Martinez’s argument is speculative at best, and the Court agrees. The Court expressly stated: 

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The Court finds that for all of the reasons that the Government has set forth in 

Docket Entry 131 on both of his objections, but particularly where it goes on to 

describe the basis for seeking an upward variance, which begins on page three of 

the response and is detailed quite extensively in the ensuing pages as to the extent 

of Mr. Martinez's role, the duration of time that he engaged in the illegal activity,

coupled with all of the other factors that have been put forth in the PSI, and also 

noted that the Defense does not object to the upward variance, recognizing as well 

Mr. Martinez's role in the matter in this case vis-a-vis his co-defendants, Mr. Cruz

Paz, as well as Ms. Maragoto, the Court does find that the 96-month sentence is 

consistent with 3553, sufficient but not greater than necessary.

DE 7, Ex. 6 at 13. Thus, it is highly likely Martinez would have been sentenced to at least 96 

months in the absence of the agreement and potentially more. The Report and Recommendation 

also noted that “Although the Court referenced that Mr. Martinez did not oppose an upward 

variance, Mr. Martinez has not shown that this non-opposition affected the Court’s conclusion 

about the appropriate sentence. Notably, the parties’ position on the appropriate sentence is not 

one of the statutory sentencing factors.” DE 9 at 8. The Court concludes that Martinez fails to show 

prejudice and his Motion should be denied. 

For the foregoing reasons, it is hereby ORDERED and ADJUDGED that:

1. Magistrate Judge Reinhart’s Report and Recommendation, [DE 9], is ADOPTED.

2. Martinez Motion, [DE 1] is DENIED.

3. The Clerk of the Court is instructed to CLOSE THIS CASE. 

4. All pending motions are DENIED AS MOOT and all deadlines are terminated. 

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 12th day of June, 

2023.

___________________________________

ROBIN L. ROSENBERG

UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record

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