IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50446

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MICHAEL MARTINEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:12-CR-234-6

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Michael Martinez appeals his 360-month sentence from a guilty-plea 

conviction for conspiracy to possess, with intent to distribute, one kilogram or 

more of heroin. Martinez was held accountable at sentencing for distribution 

of ten to 30 kilograms of heroin, and had an advisory Guideline-sentencing 

range of 360 months to life. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-50446

Martinez maintains the court clearly erred in its drug-quantity 

calculation. Specifically, he contends, as he did before the district court, that 

the evidence shows he distributed only 593.6 grams of heroin, rather than the 

ten to 30 kilograms attributed to the other lead conspirators. Based on the 

593.6-gram calculation, Martinez contends his total offense level should be 30,

instead of 36, resulting in an advisory range of 155 to 188 months’ 

imprisonment.

Under the sentencing regime in place after United States v. Booker, 543 

U.S. 220 (2005), a “sentencing judge is entitled to find by a preponderance of 

the evidence all the facts relevant to the determination of a Guideline 

sentencing range and all facts relevant to the determination of a nonGuidelines sentence”. United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 

2006) (citation and internal quotation marks omitted). The district court may 

rely on any relevant evidence which has sufficient indicia of reliability. United 

States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009). A district court’s findings of 

fact for sentencing purposes, including a district court’s drug-quantity 

determination, are reviewed only for clear error. United States v. Betancourt, 

422 F.3d 240, 246 (5th Cir. 2005). 

At sentencing, the court found “from [the] overwhelming preponderance 

of the evidence” that the amount of drugs involved in the conspiracy was more 

than ten kilograms of heroin. In that regard, Martinez is responsible for “all 

foreseeable acts” in furtherance of the drug conspiracy. See U.S.S.G. 

§1B1.3(a)(1)(B) (reasonably foreseeable acts of coconspirators are factors that 

determine Guideline range). But, Martinez does not challenge the district 

court’s “foreseeability” determination; therefore, he has failed to show the court 

clearly erred in holding him accountable for ten to 30 kilograms of heroin under 

§1B1.3(a)(1)(B). See, e.g., United States v. Solis, 299 F.3d 420, 447, 461-62 (5th 

2

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No. 13-50446

Cir. 2002) (“Distribution and possession with intent to distribute offenses are 

reasonably foreseeable acts in furtherance of a conspiracy to distribute drugs.”) 

(citations omitted). 

AFFIRMED. 

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