* Pursuant to 5TH CIR. R. 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 CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11100

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JORGE ALBERTO MARTINEZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:07-CR-3-1

Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jorge Alberto Martinez was convicted of one count of conspiracy to

distribute 50 kilograms or more of marijuana and to possess this same type and

quantity of drugs with intent to distribute. In October 2007, the district court

sentenced him to serve 188 months in prison. Martinez appeals his sentence.

Martinez argues that his sentence is unreasonable because his prior convictions

occurred 15 years ago, because he debriefed, and because his codefendant

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-11100

1No objection whatever on this basis was made below but we assume, arguendo only,

that review is under FED. R. CRIM. P. 52(a), rather than 52(b).

2One of these was for possession with intent to distribute more than 50, but less than

100, kilograms of marijuana in the Western District of Louisiana in February 1990, for which

the defendant was convicted and sentenced in May 1991,to 57 months’imprisonment(followed

by supervised release); he remained in prison under this sentence until January 1995 (the

sentence on this offense was made concurrent with the below referenced January 1991

sentence). The other prior federal controlled substance felony offense conviction was for

conspiracy to possess with intent to distribute more than 100 kilograms of marijuana in June

1990 in the Southern District of Texas, for which he was convicted and sentenced in January

1991 to 63 months’ imprisonment (followed by supervised release); he remained in prison

under this sentence until January 1995. These offenses were committed when defendant was

aged 23 and 24 respectively. 

2

Sanchez got a significantly shorter sentence. He also argues that the district

court erred by not giving sufficient reasons to support the sentence.1

Appellant was a career offender under section 4B1.1 of the guidelines by

reason oftwo prior adultfederal felony controlled substance offense convictions.2

The guidelines address the age of such convictions by providing that the prior

sentence (exceeding one year and one month imprisonment) must either have

been imposed within fifteen years from the commencement ofthe instant offense

or thatthe defendant remained incarcerated thereunder within thatfifteen year

period. Section 4A1.2(e)(1); section 4B1.2(c) (other prior sentences must have

been imposed within ten years of the commencement of the instant offense,

section 4A1.2(e)(2)). 

The countto which appellant pled guilty charged him with conspiracy with

Sanchez and others known and unknown. The PSR reflects that in July 2007

Sanchez had been convicted (whether by guilty plea or otherwise is not reflected)

of misprision of felony (18 U.S.C. § 4) (presumably in relation to the instant

offense, though it is not expressly so stated) and sentenced to 36 months’

imprisonment (the statutory maximum) and 12 months’ supervised released.

Appellant’s counsel’s unsworn and unsupported objections to the PSR and

memorandum in support, and counsel’s unsworn assertion at sentencing

(appellant declined to allocute at sentencing), state that Sanchez “had a prior
No. 07-11100

3Appellant’s new counsel on appeal states in his brief, without citation to the record,

that “both defendants,” referring to appellant and Sanchez, “had prior drug related

convictions,” but nothing in the record suggests that Sanchez had more than one prior

conviction or that it was drug related. The mentioned appellate brief also states that “[b]oth

defendants,” appellant and Sanchez, “pled guilty to count one of the indictment . . .”. There

is nothing in the record to support the assertion that Sanchez pled guilty to any count of the

instant indictment. 

4There is no showing as to the relative helpfulness or forthcoming nature of any

“debriefing” by Sanchez or appellant.

3

conviction,” but there is no indication what offense (or type of offense) that

conviction was or when it occurred, and there is nothing to indicate that Sanchez

had more than one prior conviction.3 The PSR indicates that the underlying

transaction referenced in the instant indictment was a December 2006 sale by

appellantto a confidential informant(whom appellant knew when they had been

in prison together) of some 65 kilograms (144 pounds) of marijuana at $325 a

pound. The sale was arranged in numerous telephone conversations between

appellant and the informant. The marijuana, which appellant apparently had

in his possession in Laredo, Texas, was to be shipped by commercial carrier to

Abilene, Texas, where the confidential informant was; Sanchez was hired by

appellant for $4,000 to collect the purchase money from the informant when he

took the latter to the shipping company when the marijuana arrived there.

Appellant told the informant Sanchez would take him to the marijuana and he

was to give the money to Sanchez; Sanchez told the informant he had personally

packed the marijuana and weighed it.

No evidence was introduced at sentencing.4

At sentencing, appellant’s counsel stated “we’re not asking for him to get

anything close to what Mr. Sanchez did get, but we’re asking . . . I think it’s 72

months . . . anywhere between 72 and 82 . . .”. The court responded, stating: 

“All right, sir. If you’re asking for a downward variance or a

downward departure, that request is denied.

The Court will adopt as the Court’s findings those matters set forth

in the presentence report, not only as it relates to the background
No. 07-11100

5The PSR reflects that the advisory guideline range was 151 to 188 months. This

calculation has not been challenged here or below and is plainly correct.

4

data and information, but also the analysis made under the

sentencing guidelines.”5

The court then sentenced appellant to 188 months’ imprisonment, stating

“I believe this sentence does adequately address the sentencing objectives of

punishment and deterrence.” The court also granted appellant’s request that it

recommend FCI Three Rivers as the place of confinement. In its written

statement of reasons the court states:“This sentence will accomplish sentencing

objectives of punishment and deterrence pursuant to 18 U.S.C . §§ 3553 and

3661.”

The instant record does not suffice to support a finding that appellant’s

188 month sentence constitutes, in light of Sanchez’s 36 month sentence, an

“unwarranted sentence disparit[y] among defendants with similar records who

have been found guilty of similar conduct” within the meaning of 18 U.S.C. §

3553(a)(6); nor does the record reflect any abuse of discretion on the part of the

district court, or any reason particularly applicable to this appellant or this

offense why a sentence consistent with the career offender provisions of the

advisory guidelines would be unreasonable or otherwise improper.

Our review of the record shows no error in connection with Martinez’s

sentence. The district court committed no procedural error at sentencing, and

the sentence imposed is substantively reasonable. See Gall v. United States, 128

S. Ct. 586, 594 (2007). The judgment of the district court is 

AFFIRMED.