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

### August 12, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DEON RAYMOND MARTINEZ,

Defendant-Appellant. Nos. 04-4166, 04-4167

Appeal from the United States District Court

for the District of Utah (D.C. Nos. 2:03-CR-614-TS and 2:03-CR-1020-TS)

Submitted on the briefs: Paul M. Warner, United States Attorney and Trina A. Higgins, Assistant United States Attorney, Salt Lake City, Utah, for Plaintif f-Appellee. Raymond P. Moore, Federal Public Defender and Vicki Mandell-King, Assistant Federal Public Defender, Denver, Colorado, for Defe ndant-Appellant.

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-

After examining the briefs and the appellate record , this court has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without or al argument.
I. INTRODUCTION Defendant-appellant Deon Raymond Martinez pleaded g uilty to ten counts of bank robbery, all in violation of 18 U.S.C. § 21 13(a). At sentencing, the district court departed upward from the sentencing range recommended in the presentence investigation report (“PSR”) and impose d a prison sentence of 130 months. Martinez now appeals his sentence, arguing (1) the district court’s fourlevel upward departure was unreasonable, (2) his cr iminal history category was improperly calculated, and (3) he must be resentenc ed in light of the Supreme Court’s decision in United States v. Booker , 125 S. Ct. 738 (2005). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms Martinez’s sentence.
II. BACKGROUND During a robbery spree in 2003, Martinez robbed tenbanks and credit unions located in Utah and New Mexico. On August 2 7, 2003, Martinez was charged in the District of Utah with five counts of bank robbery. On September 11, 2003, Martinez was similarly charged in the Dis trict of New Mexico with five1 Because Martinez was sentenced under the 2003 editi on of the United

States Sentencing Guidelines Manual, all Guidelines citations are to the 2003 edition. -3- counts of bank robbery. Martinez consented to have the New Mexico case transferred to the District of Utah, pursuant to Fe d. R. Crim P. 20, for purposes of his guilty plea. Subsequently, Martinez entered in to plea agreements with the United States and, on January 26, 2004, Martinez en tered a plea of guilty on all
ten counts. In calculating his sentence under the United States Sentencing Guidelines (“U.S.S.G.”), the PSR assigned Martinez a final adj usted offense level of twentyfour and a criminal history category of VI, produci ng a recommended sentencing range of 100 to 125 months’ imprisonment. The PSR concluded Martinez’s base offense level for robbery was twenty. U.S.S.G. § 2 B3.1. 1 Because the property taken belonged to a financial institution, a two-le vel increase was applied under U.S.S.G. § 2B3.1(b)(1). Pursuant to the multiple c ount adjustment of U.S.S.G. § 3D1.4, the combined offense level was determined by taking the highest adjusted offense level (twenty-two) and increasing that offense level by the applicable number of units (five), producing a comb ined adjusted offense level of twenty-seven. This was reduced three levels for ac ceptance of responsibility, producing a final offense level of twenty-four. See id. § 3E1.1. The PSR2 We express no opinion on whether the district court ’s action was necessary

or even relevant to the Supreme Court’s decision in Blakely v. Washington , 124 S. Ct. 2531 (2004). -4- assigned Martinez a total criminal history score of thirteen, which established a criminal history category of VI. After receiving a copy of the PSR, the district cou rt notified the parties of its intent to depart upward and, in response, Marti nez filed an objection with the district court. At sentencing, the court overruled Martinez’s objections and departed upward four levels, concluding that the se ntence recommended by the PSR did not adequately account for the crimes commi tted because the grouping rules of U.S.S.G. § 3D1.4 limit the additional numb er of levels added to five. The court reasoned that without a four-level upward departure, Martinez would essentially be assessed no punishment for four of the bank robberies to which he pleaded guilty. At the behest of the government, t he district court reduced Martinez’s criminal history score by three points i n response to the Supreme Court’s decision in Blakely v. Washington , 124 S. Ct. 2531 (2004). 2 The fourlevel upward departure produced an offense level of twenty-eight and, combined with the redetermined criminal history category V, resulted in a sentencing range of 130 to 162 months. Pursuant to Martinez’s plea agreements, the government requested a sentence at the low end of the range. The court agreed, sentencing-5-

Martinez to 130 months’ imprisonment. Martinez fil ed a timely notice of appeal and now challenges his sentence.
III. DISCUSSION A. Application of the Sentencing Guidelines “When reviewing a district court’s application of t he Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, giving due deference to the distri ct court’s application of the guidelines to the facts.” United States v. Doe , 398 F.3d 1254, 1257 (10th Cir. 2005) (quotation omitted). 1. Four-Level Upward Departure Martinez contends that the four-level departure imp osed by the district court was unreasonable. In reviewing the degree of departure, “we give due deference to the district court and will not revers e absent an abuse of discretion.” United States v. Jones , 332 F.3d 1294, 1300 (10th Cir. 2003) (citation om itted). As part of our review, “we are to consider ‘the dis trict court’s proffered justifications, as well as such factors as: the ser iousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, and the n eed to avoid unwarranted3 Prior to Booker , our review of upward departures was governed by 1 8

U.S.C. § 3742(e)(3). As part of the statutory sche me, the degree of departure from the applicable Guidelines range was reviewed f or unreasonableness. See 18 U.S.C. § 3742(e)(3)(C). This aspect of the review of upward departures remains unchanged by the Supreme Court’s decision in United States v. Booker , 125 S. Ct. 738 (2005). Although the Supreme Court excised 18 U.S.C. § 3742(e), the Court concluded that the implicit standard of review thatremained for all sentences is “review for unreasonableness.” Booker , 125 S. Ct. at 765 (alteration omitted). The Supreme Court further directed appellate courts to be guided by the factors set forth in 18 U.S.C. § 3553(a). Booker , 125 S. Ct. at 765-66. These factors are the same cited in pre- Bookercase law regarding the review of the degree of a departure for unreasonableness. See, e.g. , United States v. Flinn , 987 F.2d 1497, 1501 (10th Cir. 1993) (relying on factors of 18 U.S .C. § 3553(a)). We are careful to note that in this appeal we are o nly reviewing the degree of departure, not the overall sentence, for unreaso nableness. Although the inquiries may overlap substantially, it is not nece ssary for us to further define the scope of post- Bookerreview for unreasonableness because Martinez has n ot raised this issue in his opening brief or in his supplemental Bookerbrief. In addition, such review is inappropriate for a senten ce imposed prior to Booker

. See United States v. Souser , 405 F.3d 1162, 1165 (10th Cir. 2005) (observing that reasonableness review is not appropriate for a sent ence imposed under the preBookermandatory sentencing scheme). -6- sentencing disparities.’” United States v. Okane , 52 F.3d 828, 833 (10th Cir. 1995) (quoting United States v. Flinn , 987 F.2d 1497, 1501 (10th Cir. 1993)). 3 After a review of the record, we have no difficulty concluding that the degree of departure was not unreasonable. The dist rict court explained its decision to depart and the extent of the departure as follows:

The commentary to Sentencing Guidelines Section 3D1 .4 provides that situations in which there will be ina dequate scope for ensuring appropriate additional punishment for the additional crimes are likely to be unusual and can be handled by depa rtures from the guidelines. Also Section 5K2.0(a)(3) (2003 Edition ) allows for upward departures even in cases where the circumstances of the-7-

offense have been taken into account, but not to an adequate degree, quoting: A departure may be warranted in an excepti onal case, even though the circumstance that forms the basis for th e departure is already taken into consideration in determining the guideline range, if the court determines that such circumstance is p resent in the offense to a degree substantially in excess of thatwhich ordinarily is involved in that kind of offense, end of quote. Th e Court believes that his case is just such an exceptional case. Because of grouping under Section 3D1.4, defendant is essentially assessed no punishment for four of the bank robberies that are part of this case. The Court intends to impose a four-level upward departure, which corresponds under that sect ion to the additional number of levels that would normally be assessed for those four bank robberies. Based solely on the adm issions and stipulations of defendant in the plea agreements, t he Court concludes that this case is outside of the heartland of bank robbery cases anticipated by the Sentencing Guidelines and that t he punishment called for in the presentence report is inadequate as a matter of law and [it is in] the discretion of this Court to puni sh the defendant for his admitted and repeated violations of the law. The district court’s reason for departing adequatel y justifies a four-level upward departure. See Okane , 52 F.3d at 833 (approving one-level upward depart ure for additional bank robbery charges not counted under § 3D1.4). The additional concerns that guide our review further demonstrate the appropriateness of the departure. Martinez pleaded guilty to ten bank rob beries, each a very serious offense, strongly supporting the district court’s d ecision to depart. The degree of departure also advances the goals of deterrence and protecting the public. Finally, to the extent such a factor is still relev ant, the methodology used by the district court to calibrate the degree of departure was clearly linked to the-8-

Guidelines. See Jones , 332 F.3d at 1305. Consequently, the degree of de parture was not unreasonable. 2. Criminal History In calculating his criminal history category, the P SR assigned Martinez two points under U.S.S.G. § 4A1.1(b) based on a 1996 th eft conviction. According to the PSR, the factual basis of which Martinez does n ot contest, the state court originally sentenced Martinez to 365 days in jail, with part of the sentence suspended. The state court further ordered that th e remaining 180-day sentence be served consecutively to the sentence Martinez wa s serving at the time. At a review hearing three months later, the state court credited Martinez for the time served to date and placed him on probation. Martin ez now argues that he should not have been assigned two points for the 1996 thef t conviction because the 180- day sentence was to be served consecutively to his existing prison sentence such that the time served was only in connection with th e prior conviction. Because Martinez did not raise an objection below, our revi ew of his claim is for plain error. Fed. R. Crim. P. 52(b). The core of Martinez’s argument is that he did not serve any time on his sentence for the 1996 theft conviction. It is, how ever, irrelevant whether he served any time on the sentence. See United States v. Cruz-Alcala , 338 F.3d 1194, 1199 (10th Cir. 2003). The assignment of cri minal history points for a-9-

“sentence of imprisonment” is based on the “maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). “Criminal history points g iven under § 4A1.2(b) are based on the sentence pronounced, not the length of time actually served.” CruzAlcala , 338 F.3d at 1199. Martinez does not argue, nor c ould he, that the prison sentences were imposed in related cases such that t he sentences should not be counted separately. See U.S.S.G. § 4A1.2(a)(2); id. cmt. n.3. Accordingly, Martinez’s arguments are without merit and the dist rict court did not err when it assigned Martinez two criminal history points under§ 4A1.1(b) for the 1996 theft conviction.
B. United States v. Booker
In Booker , the Supreme Court held that the Sixth Amendment r equires that “[a]ny fact (other than a prior conviction) which i s necessary to support a sentence exceeding the maximum authorized by the fa cts established by a plea of guilty or a jury verdict must be admitted by the de fendant or proved to a jury beyond a reasonable doubt.” 125 S. Ct. at 756. Under Booker , a court imposing a sentence by application of the mandatory federal Se ntencing Guidelines can commit constitutional error and non-constitutional error. United States v. Gonzalez-Huerta , 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc). Constitutional Bookererror occurs when a district court, “relying upon judgefound facts, other than those of prior convictions, [] enhance[s] a defendant’s4 We express no opinion on the validity of the govern ment’s concession.
-10- sentence mandatorily.” Id. at 731. Non-constitutional error results from a di strict court’s mandatory, as opposed to advisory, applicat ion of the Guidelines. See Booker , 125 S. Ct. at 764-65. Martinez argues, and the g overnment concedes, that the district court committed non-constitutiona l Bookererror. 4 Because Martinez raised an objection under Blakely v. Washington , 124 S. Ct. 2531 (2004), before the district court, we revi ew for harmlessness. United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005). In nonconstitutional harmless error cases, such as this, the government bears the burden of demonstrating, by a preponderance of the evidenc e, that Martinez’s substantial rights were not affected. United States v. Glover , __ F.3d __, No. 04-5150, 2005 WL 1541083, at *4 (10th Cir. July 1, 2005). In sentencing Martinez, the district court, on its own motion, departed upward four leve ls. In so doing, the district court noted that the recommendation of the PSR “is inadequate as a matter of law and [it is in] the discretion of this Court to puni sh the defendant for his admitted and repeated violations.” There is, therefore, no “reason to think that the district judge would have imposed a less severe sentence in the exercise of his postBookerdiscretion.” United States v. Riccardi , 405 F.3d 852, 876 (10th Cir. 2005). Although the district court may have erred by applying the Guidelines in a mandatory fashion, the error was harmless.-11-

IV. CONCLUSION For the reasons set out above, the sentence imposedby the district court is
AFFIRMED

.