United States Court of Appeals

for the Fifth Circuit

No. 20-10434

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Luis Martinez, 

Defendant—Appellant,

consolidated with

_____________

No. 20-10438

_____________

United States of America,

Plaintiff—Appellee,

versus

Luis Miguel Martinez,

Defendant—Appellant.

United States Court of Appeals

Fifth Circuit

FILED

February 2, 2021

Lyle W. Cayce

Clerk

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Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-362-4

USDC No. 4:15-CR-232-1

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Luis Martinez appeals the 188-month above-guidelines sentence 

imposed following his guilty plea conviction for conspiracy to possess with 

intent to distribute a controlled substance in violation of 21 U.S.C. § 846. He 

also appeals the 16-month revocation sentence imposed on the related 

revocation of his term of supervised release on an earlier conviction for felony 

possession of a firearm. See 18 U.S.C. § 3583(e). The district court ordered 

that these sentences be served consecutively. We AFFIRM both sentences

but REMAND for the limited purpose of correcting a clerical error in the 

revocation judgment. 

With respect to his drug conviction, Martinez argues that the district 

court erred in varying upward to 188 months because it did not adequately 

base its decision on the facts or the 18 U.S.C. § 3553(a) factors, because it did 

not explain the sentence, and because it was based solely on his criminal 

history. He argues that certain statements by the district court indicate that 

it was unfamiliar with his case. Martinez also argues that the district court 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

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erred in ordering his sentences to run consecutively and in failing to explain 

why consecutive sentences addressed the § 3553(a) factors.

We review an original sentence for reasonableness in light of the 

sentencing factors of § 3553(a). See Gall v. United States, 552 U.S. 38, 46, 49-

50 (2007). In reviewing for reasonableness, we “merely ask[] whether the 

trial court abused its discretion.” Rita v. United States, 551 U.S. 338, 351

(2007); see United States v. Fraga, 704 F.3d 432, 437 (5th Cir. 2013). We 

ordinarily review a revocation sentence to determine if it is plainly 

unreasonable in light of certain sentencing factors set forth in § 3553(a), 

asking whether the district court abused its discretion. See United States 

v. Miller, 634 F.3d 841, 843-44 (5th Cir. 2011). 

However, when a defendant fails to preserve his argument by raising 

it in the district court, plain error review applies. See Puckett v. United States, 

556 U.S. 129, 135 (2009). Under plain error review, we determine if there 

was a clear or obvious legal error which affected the defendant’s substantial 

rights. See id. If he makes this showing, we have the discretion to remedy 

the error “only if the error seriously affects the fairness, integrity or public 

reputation of judicial proceedings.” Id. (internal punctuation, quotation 

marks, and citation omitted).

Because Martinez did not argue before the district court that it failed 

to adequately explain the above-guidelines sentence or its decision to run the 

sentences consecutively, that procedural objection is reviewed for plain 

error. See United States v. Coca-Ortiz, 801 Fed. App’x 285, 286 (5th Cir. 

2020). The record confirms there is no clear or obvious error. Puckett, 566 

U.S. at 135. Even assuming, however, that the district court committed a 

clear or obvious error, Martinez has not shown that his substantial rights were 

affected as nothing in the record suggests that more thorough explanations

would have resulted in a shorter sentence for the drug conviction or in an 

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order running the sentences concurrently. See id.; United States v. Rivera, 

784 F.3d 1012, 1018 (5th Cir. 2015).

In sentencing Martinez to 188 months for the drug conviction, an 

upward variance from the recommended 130 to 162-month guidelines range, 

the district court listened to Martinez’s arguments in mitigation, but it was 

concerned about recidivism because of Martinez’s “terrible” criminal 

history and his failure to be dissuaded from further criminal activity by 

previously imposed “light” sentences. It also concluded that the 188-month 

sentence adequately and appropriately addressed all of the § 3553(a) factors. 

“[A] district court may rely upon factors already incorporated by the 

Guidelines to support a non-Guidelines sentence.” United States v. Brantley, 

537 F.3d 347, 350 (5th Cir. 2008). Moreover, under the totality of the 

circumstances, including the significant deference that is given to the district 

court’s consideration of the § 3553(a) factors, the extent of the variance, and 

the district court’s reasons for its sentencing decision, the above-guidelines 

sentence was substantively reasonable. See Fraga, 704 F.3d at 439-40; 

Brantley, 537 F.3d at 348-50; United States v. Smith, 440 F.3d 704, 709 (5th 

Cir. 2006).

The decision to impose consecutive sentences was also within the 

discretion of the district court, and that decision was authorized by statute 

and recommended by the Guidelines. See 18 U.S.C. § 3584(a); U.S.S.G. 

§ 7B1.3(f). Given the deference owed the district court, we will not disturb 

the district court’s exercise of discretion in imposing consecutive sentences.

Finally, we note that the district court orally pronounced a revocation 

sentence of 16 months, but the written judgment states that the revocation 

sentence is 15 months. We sua sponte remand this case for the limited 

purpose of correcting the clerical error in the written revocation judgment. 

See Fed. R. Crim. P. 36; United States v. Illies, 805 F.3d 607, 610 (5th Cir. 

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2015); United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).

AFFIRMED; REMANDED for the limited purpose of correcting the 

clerical error in the revocation judgment.

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