FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 11, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13229

Non-Argument Calendar

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D.C. Docket No. 84-00499-CR-JIC

UNITED STATES OF AMERICA, 

Plaintiff–Appellee, 

versus 

ROBERTO LUIS RENE MARTINEZ, 

Defendant–Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 11, 2008)

Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Roberto Luis Rene Martinez, a federal prisoner proceeding pro se, appeals

the denial of his motion to reduce or amend his sentence, filed under former
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Federal Rule of Criminal Procedure 35. For the following reasons, we affirm.

I.

Martinez was originally convicted in 1987 of engaging in a continuing

criminal enterprise (“Count 3”), conspiracy to import methaqualone (“Count 4”),

and traveling or causing others to travel in foreign commerce with the intent to

carry on a business enterprise involving controlled substances (“Count 5”), in

violation of 21 U.S.C. §§ 848, 952(a) and the Travel Act, 18 U.S.C. § 1952,

respectively. The district court sentenced him, under pre-guidelines law, to 35

years of imprisonment on Count 3, consecutive to a previous unexpired attempted

murder conviction, and 5 years of imprisonment on Count 5, consecutive to his

conviction on Count 3. Count 4 was subsumed into Count 3 for purposes of

sentencing. We affirmed his convictions and sentences on direct appeal in 1988.

In 1990, Martinez moved for relief under the former version of Rule 35 in

effect prior to November 1, 1987. Although he initially sought a discretionary

reduction of his sentence, he amended his motion in 1997 to include a double

jeopardy challenge. The district court denied the motion in 2001 as untimely and,

alternatively, on the merits. On appeal, we found the motion was timely and

remanded with instructions to rule on the merits and, in addition, to vacate Count 4

because it was a lesser included offense of Count 3. Nevertheless, we noted that a
 We review our subject matter jurisdiction de novo. United States v. Winingear, 422 1

F.3d 1241, 1245 (11th Cir. 2005). Because we construe Martinez’s claim as asserting that the

district court committed plain error by refusing to appoint counsel for him at the Rule 35

hearing, the district court’s refusal to do so is encompassed in the scope of review as designated

by the notice of appeal. 

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new sentencing was not required because Martinez had not been sentenced on

Count 4.

Between 2001 and 2006, the matter remained pending. Ultimately, the

district court vacated Count 4 in 2006 and, in 2007 after a hearing where Martinez

appeared pro se, denied his Rule 35(b) motion for a discretionary reduction of his

sentence. Following this ruling, Martinez sought appointment of counsel without

success, and he then appealed.

II.

Martinez now: (i) challenges the lower court’s refusal to appoint counsel to

represent him during his Rule 35 hearing, and (ii) argues for the first time that 1

double jeopardy barred him from being sentenced for a violation of the Travel Act,

18 U.S.C. § 1952, in addition to being sentenced for a continuing criminal

enterprise, 21 U.S.C. § 848. In addition, we liberally construe his pro se brief as

suggesting that he was entitled to a discretionary reduction of his sentence. 

A.

We normally review a district court’s decision not to appoint counsel for an

abuse of discretion. United States v. Berger, 375 F.3d 1223, 1226 (11th Cir. 2004).
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Where, however, an argument is not raised before a district court, review is limited

to plain error, which requires an error that is plain and that affect substantial rights. 

United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). In any event, we

liberally construe a pro se litigant’s claim. Sanders v. United States, 113 F.3d 184,

187 (11th Cir. 1997).

Defendants have a Sixth Amendment right to counsel at trial and on direct

appeal, but they do not have a corresponding right to counsel when collaterally

attacking their convictions. Hill v. Jones, 81 F.3d 1015, 1024 (11th Cir. 1996). 

We have held that there is no federal constitutional right to counsel in postconviction proceedings. Barbour v. Haley, 471 F.3d 1222, 12278 (11th Cir. 2006),

cert. denied, 127 S. Ct. 2996 (2007). Similarly, we have concluded that a Rule 35

challenge is not a critical stage of the proceeding. United States v. Jackson, 923

F.2d 1494, 1496–97 (11th Cir. 1991).

The district court did not abuse its discretion or err—plainly or

otherwise—when it refused to appoint counsel for Martinez. Because the Rule 35

motion was a post-conviction motion, he was not entitled to counsel. Thus, the

decision not to appoint counsel was not error. 

B.

We normally review de novo any possible violation of the Double Jeopardy
 Similarly, an appellant normally must raise all errors in his first appeal of a judgment 2

and sentence, and can lose his right to raise issues on a second appeal if he did not raise them

earlier. United States v. Fiallo-Jacome, 874 F.2d 1479, 1481–82 (11th Cir. 1989). In the instant

case, because the district court originally dismissed Martinez’s Rule 35 motion as untimely, in

part, we conclude that Martinez may not have known that he could raise his present double

jeopardy argument at that point. Accordingly, we will assume arguendo that he is not 

procedurally barred from raising the claim on the present appeal. 

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Clause. United States v. Thurston, 362 F.3d 1319, 1322 (11th Cir. 2004). 

Similarly, we will reverse a district court’s ruling on a former Rule 35 motion if we

conclude that a preserved error shows that the sentence is illegal. United States v.

Weaver, 884 F.2d 549, 551 (11th Cir. 1989). If an error or particular argument is

not preserved below, however, appellate review is limited to plain error.2

A petitioner whose offense was committed prior to November 1, 1987, could

seek a reduction under former Rule 35(b). Fernandez v. United States, 941 F.2d

1488, 1492 (11th Cir. 1991). Former Rule 35(a) allowed a court to correct an

illegal sentence and Rule 35(b) allowed a defendant to seek a reduction of his

sentence by filing a motion with the district court. Fed. R. Crim. P. 35(a) and (b)

(pre-1987 amendment).

The Double Jeopardy Clause provides that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.

V. If the same conduct violates two statutory provisions, courts first must

determine whether the legislature intended that each violation constitute a separate

offense. Garrett v. United States, 471 U.S. 773, 778 (1985). When there is no
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clear indication of legislative intent, we must determine whether “each provision

requires proof of an additional fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304 (1932). The Supreme Court has clarified that the

Blockburger test inquires whether each offense contains an element not contained

in the other; if not, they are the same offense and double jeopardy bars additional

punishment and successive prosecution. United States v. Dixon, 509 U.S. 688, 696

(1993).

A continuing criminal enterprise exists when a person violates federal

narcotics law and such acts are “undertaken by such persons in concert with five or

more other persons with respect to whom such person occupies a position of

organizer, a supervisory position, or any other position of management, and from

which such person obtains substantial income or resources.” 21 U.S.C. § 848(c);

see also United States v. Boldin, 818 F.2d 771, 774 (11th Cir. 1987). 

A violation of the Travel Act occurs when a person travels in interstate or

foreign commerce with the intent to promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or carrying on, of any

unlawful activity and performs or attempts to perform such activity. 18 U.S.C.

§ 1952(a). An unlawful activity includes any business enterprise involving

narcotics or controlled substances. 18 U.S.C. § 1952(b). A conviction under the
 The predicate offenses included only violations of Title 21 of the United States Code. 3

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Travel Act requires the jury to find that the defendant traveled in interstate or

foreign commerce with the intent to promote unlawful activity and must be based

on proof of guilty knowledge during specific travels. United States v. Garcia, 78

F.3d 1517, 1522 (11th Cir. 1996).

A violation of the Travel Act and engaging in a continuing criminal

enterprise require different elements, and Martinez’s Travel Act violation was not,

as he asserts, a predicate offense of the continuing criminal enterprise violation.3

Accordingly, his conviction and sentence on both did not violate the Double

Jeopardy Clause. 

C.

We will also reverse the denial of a Rule 35 motion when the district court’s

refusal to reduce the sentence constitutes a gross abuse of discretion. Weaver, 884

F.2d at 551.

To the extent Martinez argues that the district court should have granted

discretionary relief in making his remaining two sentences concurrent, he has

failed to demonstrate that the district court abused its discretion in refusing to do so

because the district court properly applied double jeopardy law, did not violate

procedural norms, and did not make clearly erroneous findings of facts. The
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offenses here were also serious, and the sentences were within applicable statutory

limits. Accordingly, we affirm the district court. 

AFFIRMED.