NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0506n.06

No. 14-4286

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN MARTINEZ,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE NORTHERN 

DISTRICT OF OHIO

OPINION

BEFORE: CLAY and McKEAGUE, Circuit Judges; BERTELSMAN, District Judge.*

PER CURIAM. Defendant-Appellant John Martinez appeals the sentence of seventy 

months’ imprisonment imposed by the district court following his plea of guilty to a six-count 

indictment charging him with various federal drug crimes. We AFFIRM.

I.

A. Previous Criminal Conviction

In 2001, a federal grand jury indicted Martinez on five federal drug crimes. Martinez 

pleaded guilty to conspiracy to possess with intent to distribute cocaine; he received a sentence 

 

*

The Honorable William O. Bertelsman, United States District Judge for the Eastern District of 

Kentucky, sitting by designation.
No. 14-4286

United States v. Martinez

- 2 -

of forty-six months’ incarceration to be followed by three years of supervised release. On 

February 22, 2007, the sentencing court terminated Martinez’s supervised release early.

B. Investigation and Indictment

Martinez became the focus of a joint, federal-state drug task force in October of 2012. 

Law enforcement officers subsequently made six controlled buys of heroin at Martinez’s home 

between October 29, 2012, and November 19, 2012. Authorities eventually obtained a warrant 

to search Martinez’s residence in Youngstown, Ohio and executed that warrant on 

April 23, 2013. Law enforcement officers found cocaine, heroin, marijuana, a digital scale, 

cutting agents, cell phones, baggies, and $22,562 while executing the warrant.

On February 26, 2014, a federal grand jury in the Northern District of Ohio returned a 

six-count indictment against Martinez. Counts I through V of the Indictment charged Martinez 

with distributing heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Count VI of the 

Indictment charged Martinez with possession of cocaine with the intent to distribute, in violation 

of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), and (b)(1)(C).

C. Plea Agreement and Guilty Plea

In April of 2014, Martinez negotiated a plea agreement with the Government pursuant to 

Federal Rule of Criminal Procedure 11(c)(1)(A) and (B). Martinez and the Government agreed, 

among other things, that his guidelines offense level would be twenty-one (21), which included a 

three-level reduction for acceptance of responsibility and a two-level reduction later adopted by 

the United States Sentencing Commission.
No. 14-4286

United States v. Martinez

- 3 -

On May 2, 2014, Martinez appeared before a United States Magistrate Judge and pled 

guilty to all six counts of the Indictment pursuant to the plea agreement. The Magistrate Judge 

prepared a report and recommendation for the District Judge, recommending “that the plea of 

guilty be accepted and a finding of guilty be entered by the Court.”

On July 21, 2014, the District Judge approved the parties’ plea agreement. And on July 

23, 2014, the District Judge adopted the Magistrate Judge’s report and recommendation, 

adjudging Martinez guilty of all six charges.

D. Sentencing

United States Pretrial Services filed Martinez’s Presentence Investigation Report (“PSR”)

on July 7, 2014. Neither Martinez nor the Government filed objections to the PSR, and it was 

amended to reflect that fact on August 7, 2014. Martinez filed a sentencing memorandum the 

same day.

On December 16, 2014, Martinez appeared before the District Judge for sentencing. The 

United States Sentencing Commission promulgated new Guidelines in November of 2014 that 

were more favorable to Martinez, so the court and the parties agreed that Martinez should be 

sentenced under the new Guidelines. The District Judge proceeded to identify the applicable 

offense level under the 2014 Guidelines, and the parties and the court agreed that the proper level 

was twenty-one (21), including a three-level reduction for acceptance of responsibility. The 

court and the parties then moved on to a discussion of Martinez’s Criminal History Score for 

purposes of the Guidelines, and the District Judge began by making the following statement:

THE COURT: Mr. Martinez, I remark that I double-checked this, because 

I didn’t think it possible that your criminal history score could only be 3. I 

thought it would be more correct at 5, because I believe that you should have still 
No. 14-4286

United States v. Martinez

- 4 -

been on supervised release from your other federal crime; but I’ve since learned 

that you were granted early release, early termination of supervision, and for that 

reason, your criminal history remains at 3 and was not increased by two levels. 

Had it been increased by two levels, that would have moved you from Category II 

to Category III.

You realize how close you’ve come, don’t you?

Martinez responded that he understood.

After discussing offense level and criminal history score, the parties agreed that 

Martinez’s advisory Guidelines range for Counts I-V of the Indictment was forty-one (41) to 

fifty-one (51) months’ imprisonment. Because a five-year mandatory minimum applied to 

Count VI of the Indictment, the parties agreed that Martinez’s Guidelines range for that offense 

was sixty months.

The District Judge then proceeded to the allocution portion of the sentencing hearing. 

The Government spoke first, lamenting that Martinez had returned to federal court after serving a 

prior sentence for a drug crime and that Martinez had not furthered his education or learned a 

skill since his previous incarceration. The Government did recognize that Martinez’s criminal 

history was less extensive than other defendants and that he had kept a steady job for the prior 

six years. Based on the totality of the circumstances, the Government recommended that the 

court impose a sentence of sixty (60) months’ imprisonment.

Defense counsel spoke next. Counsel began by noting Martinez’s diagnosis of multiple 

sclerosis and his family history of alcohol- and drug-related problems. Martinez’s attorney 

emphasized that he is a hard worker, despite having an unskilled job, and noted that Martinez 

planned to improve himself while in prison so that he could get a better job following his release. 
No. 14-4286

United States v. Martinez

- 5 -

Defense counsel concluded his allocution by recommending that the court impose a sentence of 

sixty (60) months’ imprisonment.

Martinez gave the last allocution at the sentencing hearing. He explained that he had 

returned to selling drugs—despite previously serving a prison sentence for a federal drug

conviction—because he co-signed his daughter’s student loans and needed to repay $30,000. 

Martinez admitted that he chose making easy money distributing narcotics over working two 

jobs in order to repay the debt. The district court clearly expressed its dissatisfaction with 

Martinez’s reason for returning to the drug trade:

THE COURT: I cannot understand how it is you can care so much about 

your daughter that you want to promote her education, and then pay the debt and 

deal drugs. . . . [S]he’s in the community where you’re pushing the dope, heroin, 

the most addictive drug that law enforcement officers are fighting today. You 

were pushing heroin --

THE DEFENDANT: Yes, Your Honor.

THE COURT: -- cocaine and marijuana, all because you had a debt to 

pay. Who doesn’t have a debt to pay? That alone, I mean, truly, that’s your 

reason, that’s why you did this, just to pay a bill, you throw your integrity out the 

window?

A colleague of mine obviously believed in you. He believed in you 

enough that he let you off supervision early. “Martinez isn’t coming back, he’s 

not going to do this again.” And then you get a little bit in debt and you do it 

again?

I really -- I’ve been thinking about this for a while, and hoped you’d tell 

me something more than the report.

How is it I’m going to trust you in society when you buckle under so little 

provocation as a debt? What else will it take? A feather drops on your shoulder, 

you push heroin. It doesn’t seem like it takes much to push you in the wrong 

direction.

Do you see the point I’m making?

THE DEFENDANT: Yes, Your Honor.
No. 14-4286

United States v. Martinez

- 6 -

Martinez concluded his allocution by emphasizing to the district court that he wanted to better 

himself in prison: “I would like to better myself, look at my family in a different way, knowing 

that I can provide for them. And that was my strive [sic] in life, to better them so they wouldn’t 

have to turn the way I did, not looking at the consequences.”

Following the allocutions by counsel and Martinez, the District Judge proceeded to 

consider the § 3553(a) factors. As to the nature and circumstances of the offense, the District 

Judge noted that the charged crimes “are horrendous in that these drugs destroy lives. People die 

from heroin overdoses.” The district court also noted that, specific to Martinez, the offenses 

caused “family members to lose respect for [him] and judicial officers lose the ability to impose 

trust in what [he says] that [he] will do.”

As to the history and characteristics of the defendant, the District Judge commented that 

Martinez’s age, 45, “speaks of a maturity” and that Martinez had “fairly strong family ties.” The 

district court recognized that Martinez had “managed a long-term history of employment,” but 

also noted that he was “pretty clearly . . . addicted to alcohol and perhaps other behaviors that 

involve smoking marijuana.” The District Judge then moved on to Martinez’s medical history, 

calling his multiple sclerosis “unfortunate” but stating her confidence that “the Bureau of Prisons 

is certainly well equipped to handle both depression and multiple sclerosis.” The district court 

accordingly concluded that “the sentence [it will] impose will [not] cause [Martinez] to suffer 

from [his] illness.”

The District Judge finally discussed punishment, deterrence, and the seriousness of the 

offense. As to punishment, the district court stated: “I also will remark that I intend to punish 

you. You expect that. You’ve been told that before. You’ve earned it. As we’ve talked about, 
No. 14-4286

United States v. Martinez

- 7 -

you’ve recidivated. You’ve completed already a fairly lengthy federal sentence, and you’re back 

again for an even longer sentence.” As to deterrence, the district court stated:

I hope that what I do with you here now, even if it does not deter you, but 

it does deter others who might look to you as an example, might protect the 

public. And by doing that, I don’t know the level of your distribution, but at least 

for the length of time that you’re incarcerated, there is one less drug dealer on the 

streets.

As to the seriousness of the offense, the district court stated:

And I do intend to reflect the seriousness of the offense, and to allow you 

to improve your conduct and condition if you’re so inclined to do that. And by 

doing that, I mean by taking up all opportunities in prison to work against any 

addictions from which you suffer, and also to further your education, and to learn 

a trade, whatever that might be that may allow you to become perhaps more 

handsomely employed when you’re released from prison.

And that concluded the District Judge’s discussion of the § 3553(a) factors.

The district court then varied upward from the Guidelines range on Counts I through V 

and the mandatory-minimum sentence on Count VI, imposing concurrent sentences of sixty (60) 

months on Counts I through V and seventy (70) months on Count VI:

For all of those reasons, and understanding what the advisory guidelines 

suggest, and also what the statutory minimum is that I shall at least impose, I 

think this is a circumstance whereby as to Counts 1 through 5, I will vary up to 

the 60-month term of incarceration suggested by Count 6. For Count 6, I will 

vary upwards to 70 months. And I do that, sir, because I think you don’t present 

to me the picture of a person who has fully come to grips with what you’ve done 

and how little provocation it took for you to once again commit these serious 

crimes. Paying a debt can’t be a good enough reason to violate our federal laws 

and to spew trash in our streets. To spread heroin, cocaine and marijuana in the 

same community where it is you claim to be wanting to make a better life for your 

child makes absolutely no sense to me.

Following sentencing, on December 18, 2014, the district court issued a Memorandum Opinion 

further explaining why it believes the § 3553(a) factors “strongly encourage an above-guidelines 

sentence” in Martinez’s case.
No. 14-4286

United States v. Martinez

- 8 -

II.

A. Standard of Review

The parties dispute the applicable standard of review. Martinez argues for traditional 

abuse-of-discretion review under Gall v. United States, 552 U.S. 38 (2007), as to both procedural 

and substantive reasonableness. The Government contends that plain-error review applies to 

Martinez’s argument that his sentence is procedurally unreasonable. This Court’s decision in 

United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc), requires us to resolve the 

dispute over the standard of review.

Vonner holds that if a district court asks the so-called Bostic question1after announcing 

its proposed sentence and “if the relevant party does not object, then plain-error review applies 

on appeal to those arguments not preserved in the district court.” Id. at 385. After announcing 

her proposed sentence, the District Judge gave each party an opportunity to object, using 

declarative language paralleling the Bostic question. Defense counsel objected thusly:

I object to the additional ten months, for the reasons set forth not only in 

the brief, but also the PSR. And, Your Honor, here is a man who -- and I 

understand this is the -- you know, this is the second time he’s been before a 

federal judge. However, he does have some serious medical problems, and those 

medical problems are not getting better. He does have a drinking problem. You 

know, we put that in our brief, Your Honor, and he does need some help with that, 

which I will address after.

And for those reasons, Your Honor, we object.

Martinez’s counsel said nothing more on the matter.

 

1 United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), “suggested that district courts, after 

announcing a proposed sentence, ‘ask the parties whether they have any objections to the 

sentence . . . that have not previously been raised.’” Vonner, 516 F.3d at 385 (quoting Bostic, 

371 F.3d at 872).
No. 14-4286

United States v. Martinez

- 9 -

We hold that defense counsel’s objection is not particular enough to preserve for 

appellate review Martinez’s argument that the district court did not adequately consider the 

§ 3553(a) factors. Defense counsel did not mention the § 3553(a) factors or object to the District 

Judge’s discussion of them. Compare United States v. Simmons, 587 F.3d 348, 358 (6th 

Cir. 2009) (“We hold that Vonner requires the application of plain-error review to procedural 

claims like this one, where a party answers the Bostic question in the affirmative, but at such a 

high degree of generality that the district court has no opportunity to correct its purported error 

and the court of appeals has been deprived of a more detailed record to review.”), with United 

States v. Johnson, 627 F.3d 578, 585 (6th Cir. 2010) (“Because Johnson objected broadly to all 

aspects of his sentence without making any particular objections, his claims on appeal regarding 

procedural sentencing errors are reviewed for plain error.”). Furthermore, counsel’s objection 

based on the PSR and Martinez’s sentencing memorandum could not have encompassed the 

district court’s consideration of the § 3553(a) factors because the district court had yet to 

consider those factors when the PSR and sentencing memorandum were filed.

Plain-error review “requires [Martinez] to show (1) error (2) that ‘was obvious or clear,’ 

(3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or 

public reputation of the judicial proceedings.’” Vonner, 516 F.3d at 386 (quoting United States 

v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). This Court will find plan error only in 

“exceptional circumstances.” Id.
No. 14-4286

United States v. Martinez

- 10 -

B. Procedural Reasonableness

Martinez argues that his sentence is procedurally unreasonable only because the district 

court did not adequately address the § 3553(a) factors.2 Citing United States v. Smith, 505 F.3d 

463, 467 (6th Cir. 2007), he contends that the “deliberation” required by this Court’s precedents 

“should mean more than just listing the factors on the page” and that “[i]n the sentencing 

memorandum, the district court just lists the factors as justification for her ten month upward 

variance. There are no real insights or explanations of how the factors determine the decision to 

impose the variance.” Brief of Appellant at 14.

A district court’s sentence is procedurally unreasonable if the court, among other things, 

“fail[s] to consider the § 3553(a) factors.” Gall v. United States, 552 U.S. 38, 51 (2007). “The 

statutory command is an insistence upon deliberation, not a formulaic requirement. When 

reviewing the district court’s consideration of the § 3553(a) factors, we have never required the 

ritual incantation of the factors to affirm a sentence.” Smith, 505 F.3d at 467 (quoting United 

States v. Cage, 458 F.3d 537, 543 (6th Cir. 2006)) (internal quotation marks omitted). 

As this Court stated in United States v. Brooks, 628 F.3d 791 (6th Cir. 2011), “the 

Supreme Court has made clear that ‘[t]he appropriateness of brevity or length, conciseness or 

 

2

The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; (2) the need for the sentenced imposed to reflect the 

seriousness of the offense, promote respect for the law, provide just punishment for the offense, 

afford adequate deterrence to criminal conduct, protect the public from further crimes committed 

by the defendant, and provide the defendant with needed educational and vocational training or 

medical care; (3) the kinds of sentences available; (4) the sentencing range established by the 

Guidelines; (5) any pertinent policy statement by the U.S. Sentencing Commission; (6) the need 

to avoid unwarranted sentencing disparities among similarly situated defendants; and (7) the 

need to provide restitution to any victims.
No. 14-4286

United States v. Martinez

- 11 -

detail [of a judge’s explanation for a particular sentence], . . . depends upon circumstances’ that 

are left ‘to the judge’s own professional judgment.’” Id. at 796 (first alteration in original) 

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)). And where a district court adequately 

explains why it chose a particular sentence, “we do not further require that it exhaustively 

explain the obverse—why an alternative sentence was not selected in every instance.” United 

States v. Chiolo, 643 F.3d 177, 185 (6th Cir. 2011) (quoting United States v. Gale, 468 F.3d 929, 

940 (6th Cir. 2006)) (internal quotation marks omitted).

Martinez’s argument does not take into account the district court’s discussion of the 

§ 3553(a) factors on the record at the sentencing hearing. The record demonstrates that the 

district court did more than simply list the factors on the page in its Memorandum Opinion on 

Sentencing. The District Judge addressed many of the § 3553(a) factors at the sentencing 

hearing and explained how her perception of those factors informed the chosen sentence. The 

district court specifically addressed the circumstances of the offense, the defendant’s history and 

characteristics, the seriousness of the offense, promoting respect for the law, providing just 

punishment, affording deterrence, protecting the public, Martinez’s medical needs, and the 

Guidelines range. The District Judge’s explanation was more than adequate “to allow for 

meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 

50 (citing Rita, 551 U.S. at 351). Martinez’s appeal therefore does not present the exceptional 

circumstances required for this Court to hold that his sentence is procedurally unreasonable 

under the plain-error standard. Vonner, 516 F.3d at 386.
No. 14-4286

United States v. Martinez

- 12 -

Applying plain-error review, we cannot say that the district court committed error, and at 

minimum any such error was not obvious or clear. We accordingly hold that Martinez’s 

sentence is procedurally reasonable.

C. Substantive Reasonableness

Martinez argues that his sentence is substantively unreasonable because the district court 

“placed inordinate weight on Martinez’s criminal history.” Brief of Appellant at 14 (citing 

United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006)). He contends that the District Judge 

“was pre-occupied with his past drug dealing offense,” as well as “indignant over the fact that 

Martinez qualified as a Criminal History Category II rather than a III due to his early release and 

early termination of supervision.” Id. Martinez finally argues that, “in the district court’s 

sentencing memorandum, the past conviction appeared to be the definitive [§] 3553(a) factor for 

an above-guidelines sentence.” Id. at 15.

A district court’s sentence is substantively unreasonable if the court, among other things, 

gives unreasonable weight to any of the pertinent § 3553(a) factors. Caver, 470 F.3d at 248. But 

“[a] district court may place great weight on one factor if such weight is warranted under the 

facts of the case.” United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013) (citing United 

States v. Zobel, 696 F.3d 558, 571–72 (6th Cir. 2012)). Furthermore, “this Court has recognized 

that the manner in which a district court chooses to balance the applicable sentencing factors is 

beyond the scope of the Court’s review” for substantive reasonableness. Id. (citing United States 

v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008); United States v. Ely, 468 F.3d 399, 404 

(6th Cir. 2006)). Accordingly, “[w]here a district court explicitly or implicitly considers and 

weighs all pertinent factors, a defendant clearly bears a much greater burden in arguing that the 
No. 14-4286

United States v. Martinez

- 13 -

court has given an unreasonable amount of weight to any particular one.” Id. (quoting United 

States v. Thomas, 437 F. App’x 456, 458 (6th Cir. 2011)) (internal quotation marks omitted).

The record does not bear out Martinez’s argument that the district court placed 

impermissible weight on his prior criminal history at sentencing. The sentencing transcript 

demonstrates that the District Judge was most frustrated with the reason that Martinez gave for 

returning to selling narcotics after his prior conviction: needing to repay $30,000 worth of loans 

that he cosigned so that his daughter could attend college. When the district court announced its

upward variance, the variance had little to do with Martinez’s prior criminal history:

I think you don’t present to me the picture of a person who has fully come to grips 

with what you’ve done and how little provocation it took for you to once again 

commit these serious crimes. Paying a debt can’t be a good enough reason to 

violate our federal laws and to spew trash in our streets. To spread heroin, 

cocaine and marijuana in the same community where it is you claim to be wanting 

to make a better life for your child makes absolutely no sense to me.

The District Judge placed more weight on the nature and circumstances of the offense for which 

Martinez was sentenced than on his prior criminal history. To be sure, Martinez’s recidivism 

played a role in the district court’s decision to vary upward from the mandatory-minimum 

sentence, but the court did not put an impermissible amount of weight on Martinez’s criminal 

history. Martinez therefore cannot meet his “much greater burden” to show that the district 

court’s sentence was substantively unreasonable. Adkins, 729 F.3d at 571.

Applying abuse-of-discretion review, the District Judge did not place an impermissible 

amount of weight on Martinez’s criminal history. We accordingly hold that Martinez’s sentence 

is substantively reasonable.
No. 14-4286

United States v. Martinez

- 14 -

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.