* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### July 12, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CYRIL EDWARD MARTINEZ, also known as “Bucky” Martinez, Defendant-Appellant. No. 04-8094 (District of Wyoming) (D.C. No. 04-CR-69-J)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. Fed. R. App. P. 34(f); 10thCir. R. 34.1(G). This case is, therefore, ordered submitted without oral argument.1 Martinez, a member of the Northern Arapaho Indian tribe, killed the victim

on the Wind River Indian Reservation.

2 Under a Rule 11(c)(1)(C) plea agreement, an attorne y for the government may “agree that a specific sentence or sentencing r ange is the appropriate disposition of the case, or that a particular provi sion of the Sentencing Guidelines, or policy statement, or sentencing fact or does or does not apply (such a recommendation or request binds the court once th e court accepts the plea agreement).” Fed. R. Crim. P. 11(c)(1)(C).
-2- Defendant-appellant Cyril Edward Martinez was charg ed with first degree murder in violation of 18 U.S.C. §§ 1111 and 1153. 1 On June 3, 2004, Martinez entered into a plea agreement in which he agreed to plead guilty to second degree murder and, in exchange, the government would dismi ss the pending indictment. The parties also agreed, pursuant to Federal Rule o f Criminal Procedure 11(c)(1)(C) 2 that: the offense level of the United States Sentencing G uidelines to be applied in this case shall be offense level 40, and the Criminal History Category shall be II, for a resulting sente ncing range of 324- 405 months. The parties agree that the actual sent ence to be applied within that range shall be left to the discretion o f the Court, with the United States free to argue for a sentence at the h igh end of the range, and the Defendant free to argue for a senten ce at the low end of the range. The parties agree that the rationale for this compromise is as follows: The Defendant is presently charged with Murder in the First Degree, and he understands that if convicted at trial of this offense he would face a mandatory sentence of life without parole. The United States understands and acknowledges thatbased on the evidence of this case the Defendant will be entitle d to a lesser included offense instruction of Murder in the Secon d Degree. Neither party can be certain of a jury verdict, and they therefore desire to reach a compromise. The actual sentencin g range selected here is the functional equivalent of the sentence w hich would be imposed if Defendant entered a plea of guilty to Mu rder in the First3 At sentencing, Martinez asked to withdraw his guilty plea or, in the

alternative, that he be allowed more time before se ntencing to consider whether to withdraw his plea. The court denied the request. Martinez does not challenge this on appeal. Nor does Martinez challenge the kn owing and voluntary nature of his plea.

4 Martinez asserts that had he been sentenced based s olely on a guilty plea to second degree murder, the applicable sentencing range would have been 121- 151 months.
-3- Degree, and then received a reduction of three offe nse levels, which reduction is normally afforded to defendants who ac cept responsibility for their actions, but which reducti on is not otherwise available in this case due to the mandatory nature of the statutory penalty for Murder in [the] First Degree, with or w ithout a plea and acceptance of responsibility. After reviewing the presentence report, the distric t court accepted the plea and sentenced Martinez to a prison term of 336 months, five years of supervised release, restitution in the amount of $5,530.81, an d a $1,000 fine. 3 Martinez now appeals, arguing that his sentence must be reversedbecause it (1) represents an upward departure unsupported by factual findings as required by 18 U.S.C. § 3553(c) 4and (2) violates his Sixth Amendment rights under Blakely v. Washington , 124 S. Ct. 2531 (2004). Unless the sentence imposed is greater than the sentence set forth in the plea agreement, a defendant sentenced pursuant to aRule 11(c)(1)(C) plea agreement may only appeal if his sentence was impos ed “in violation of law” or “as a result of an incorrect application of the sen tencing guidelines.” 18 U.S.C. § 3742(a)(1)–(2), (c)(1). Because Martinez’s sente nce conformed to the5 The statutory maximum penalty for second degree mur der is life in prison.

18 U.S.C. § 1111(b).

6 In United States v. Booker , the Supreme Court extended the holding of Blakely v. Washington , 124 S. Ct. 2531 (2004), to the federal Sentencing Guidelines, concluding that the Sixth Amendment req uires that “[a]ny fact (other than a prior conviction) which is necessary to supp ort a sentence exceeding the maximum authorized by the facts established by a pl ea of guilty or a jury verdict must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.” Booker , 125 S. Ct. 738, 756 (2005). The Court also rende red the Guidelines advisory by excising 18 U.S.C. § 3553(b) (1). Id. at 764.
-4- stipulated sentence in his Rule 11(c)(1)(C) plea ag reement and was less than the statutory maximum, it did not violate the law. 5 See United States v. Brown , 316 F.3d 1151, 1160 n.4 (10th Cir. 2003); United States v. Veri , 108 F.3d 1311, 1315 (10th Cir. 1997). Martinez also cannot challenge h is sentence under United States v. Booker , 125 S. Ct. 738 (2005), 6because he admitted all relevant facts and stipulated to the specific sentence he received. See United States v. Silva , No. 04- 1522, 2005 WL 1581267, at *1 (10th Cir. July 7, 200 5). Similarly, because Martinez’s sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement, the district court did not apply the Sentencing Gui delines, let alone apply the Guidelines incorrectly. See Fed. R. Crim. P. 11(c)(1)(C) (agreement is binding on the court); Veri , 108 F.3d at 1313. The district court’s applicati on of the provisions of the Rule 11(c)(1)(C) plea agreement r esulted in a sentence that was neither “in violation of law” nor “an incorrect app lication of the sentencing-5-

guidelines.” 18 U.S.C. § 3742(a)(1)–(2), (c)(1). This court the refore lacks jurisdiction to review Martinez’s sentence and the appeal is DISMISSED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge