UNITED STATES OF AMERICA v. ERICK MARTINEZ, No. 10-3028.

Erick Martinez was affiliated with the Latin Kings street gang throughout an extended period of his youth. During his time with the gang, Martinez sold crack cocaine in the Humboldt Park area of Chicago, activity that led to an arrest for crack distribution and drug conspiracy.

In 2003, Martinez pled guilty to the conspiracy charge pursuant to a plea agreement. Rather than present himself for sentencing as planned, however, Martinez fled. Police caught up with him in 2008, and he again pled guilty—this time to the drug conspiracy and crack distribution charges. He was ultimately sentenced to 240 months’ incarceration.

Martinez now challenges his sentence, claiming that the obstruction of justice adjustment he received was improper and that his term of incarceration is “just too much.” Because the obstruction adjustment was appropriate and the district court’s sentence was reasonable, we affirm Martinez’s sentence.

BACKGROUND

In 1998, Martinez joined the West Town Chapter of the Latin Kings street gang, an affiliation that would last until at least 2001. As part of his membership with the Chapter, Martinez became associated with an interesting cast of characters. Among this cast of malcontents were Leonard Clark, who was the leader (or “Inca”) of the Chapter, and Juan Cruz, who was Clark’s chief lieutenant (or “Cacicque”). Also present were a number of disreputables who seemingly occupied the low- to mid-level ranks of the Chapter.

Like any other enterprise, the Chapter needed funds to maintain itself, and it often utilized rank members like Martinez to make money via the crack cocaine trade. To facilitate crack distribution, the Chapter held meetings, where the payment of dues, the sale of drugs, and the gang’s security operations were coordinated. Throughout his time with the Chapter, Martinez attended gang meetings, paid his dues (literally), and sold crack throughout the gang’s area of dominance.

On at least two occasions, Martinez returned some of the proceeds from his crack sales back to the Chapter. The various monies handed over to the Chapter by its members helped to fund something of a social program, subsidizing gun purchases, bonds for jailed gang members, gang security, presumably escalating funeral costs, and the like.

Unfortunately for Martinez, one of his many drug sales was to a cooperating witness of the FBI. In June 2003, Martinez and other Chapter members (the “Inca” and the “Cacicque,” along with “Candyman,” “Babyfat,” and others with similarly creative street names) were arrested and charged with distribution of crack cocaine and drug conspiracy.

By November 2003, Martinez could tell which way the wind was blowing and decided to cut his losses. To that end, he pled guilty to the conspiracy count of the indictment pursuant to a written plea agreement, promising to cooperate with the government in the process

Martinez’s sentencing hearing occurred on August 19, 2010. At the hearing, Martinez agreed that his base offense level was properly calculated at 36, and that a two-level upward adjustment for gun possession was appropriate.

In two steps that essentially cancelled each other out, the district court applied both a two-level upward adjustment to Martinez’s offense level for obstruction of justice (over Martinez’s objection) and a two-level downward adjustment for acceptance of responsibility (over the government’s objection). Based on two 2002 driving-while-suspended convictions, the district court went on to conclude that Martinez should be placed in criminal history category II; that category—coupled with his offense level of 38—yielded an advisory range of 262 to 327 months’ incarceration.

After hearing both sides’ arguments regarding the § 3553(a) factors, the district court departed downward from the advisory guidelines range and sentenced Martinez to a term of 240 months’ incarceration.

DISCUSSION

A. Obstruction of Justice Adjustment

Martinez begins by contesting the sentencing adjustment he received for obstruction of justice. The government argued for the adjustment at Martinez’s recent sentencing hearing because he failed to present himself for his initial sentencing hearing, instead absconding for several years.

Martinez responded that his flight was motivated by fear of his former gang associates, who he claimed had made threats to retaliate against him in prison, and not by any abstract desire to frustrate justice. As such, Martinez argued that he did not “willfully” obstruct justice, as required for application of the adjustment. The district court agreed that Martinez was motivated by fear, but found that he still acted willfully within the meaning of the adjustment because he voluntarily and intentionally failed to appear at his sentencing.

Section 3C1.1 of the Sentencing Guidelines provides for a two-level upward adjustment if a defendant “willfully obstruct[s] or impede[s] . . . the administration of justice with respect to . . . sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The section’s application notes go on to list numerous types of conduct that qualify as obstructive and to which the adjustment is intended to apply. U.S.S.G. § 3C1.1 cmt. n. 3 & 4. Specifically, the notes make clear that “willfully failing to appear, as ordered, for a judicial proceeding” is “conduct to which [the obstruction] adjustment applies.” U.S.S.G. § 3C1.1 cmt. n. 4(e).

For better or worse, see United States v. Gage, 183 F.3d 711, 717-19 (7th Cir. 1999) (Posner, C.J., concurring), we have interpreted § 3C1.1’s use of the word “willfully” to require a specific intent to obstruct justice. In light of the language used in the application notes, however, we have also held that engaging in the conduct listed in the notes (with that conduct’s requisite intent) is often sufficient—on its own—to permit imposition of the adjustment. See, e.g., United States v. Freitag, 230 F.3d 1019, 1026 (7th Cir. 2000) (“[A]ll that is required to impose the obstruction of justice enhancement on perjury grounds is that the court make a finding that encompasses the factual predicates for a finding of perjury.” (citing United States v. Dunnigan, 507 U.S. 87, 95 (1993)).

For failure to appear cases, we have concluded that the adjustment is triggered if the defendant knew that he had to appear in court and voluntarily and intentionally failed to do so. See, e.g., United States v. Curb, 626 F.3d 921, 928-29 (7th Cir. 2010).

Martinez seizes on these requirements, arguing that his failure to appear was neither intentional nor voluntary. He first claims that—because he based his decision to abscond on fear—he could not have behaved intentionally and the adjustment could not be applied. This argument misapprehends the intent necessary to trigger the adjustment and flies in the face of our controlling precedent.

As we held in Curb, a defendant’s personal motivations for not showing up for sentencing are generally irrelevant to the intent question; rather, it is enough for intent’s sake that the defendant made a conscious decision—regardless of the reason—not to appear, thereby deterring the administration of justice.[2] See Curb, 626 F.3d at 929.

We need not decide in this case whether the defense of duress applies to an obstruction of justice adjustment, however, as Martinez has not made out the elements of duress. For duress to apply, a defendant must establish that he “reasonably feared immediate death or serious bodily harm unless [he] committed the offense” and that “there was no reasonable opportunity to refuse to commit the offense and avoid the threatened injury.” See United States v. Sawyer, 558 F.3d 705, 711 (7th Cir. 2009).

CONCLUSION

For the aforementioned reasons, we AFFIRM Martinez’s sentence.

 

 

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