USA v. Arandas et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT’S
) MOTION FOR LEAVE TO APPEAL
vs. )
)
Gabriel Martinez, ) Case No. 3:06-cr-14-17
)
Defendant. )
______________________________________________________________________________
Before the Court is Defendant Gabriel Martinez’s “Application for Leave to Appeal in This
Court of Appeals Pursuant to Fed. R. Crim. P. 52(b) Plain Error” filed on October 31, 2019. See
Doc. No. 1596. Martinez seeks leave to file an appeal of his sentence, alleging that this Court
plainly erred in calculating his total offense level under the United States Sentencing Guidelines.
On December 12, 2008, Martinez was sentenced to life imprisonment. See Doc. No. 1195.
Martinez filed a timely notice of appeal. See Doc. No. 1199. On February 5, 2010, the Eighth
Circuit affirmed his conviction and sentence. United States v. Martinez, 364 F. App’x 305 (8th
Cir. 2010) (per curiam).
The Court will not grant Martinez leave to file an appeal. Martinez has already
unsuccessfully appealed his case to the Eighth Circuit, and a defendant is not allowed to appeal
his conviction or sentence twice. Martinez is also not seeking to appeal any of this Court’s orders
denying post-conviction relief. Further, even if Martinez could appeal his original judgment a
second time over a decade later, the Court finds that his appeal would be meritless. Martinez
contends that the Court committed plain error when it calculated his total offense level as a 47
rather than a 43. See U.S.S.G. Ch. 5 Pt. A, n.2 (“In rare cases, a total offense level of . . . more
than 43 may result from application of the guidelines. . . . An offense level of more than 43 is to
be treated as an offense level of 43.”). However, the Guidelines range determined by the Court—
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life imprisonment—was the same as it would have been with a finding of a total offense level of
43. Accordingly, the Court did not commit a plain error that “affected the defendant’s substantial
rights” and “seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” See Rosales-Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897, 1904 (2018)
(quoting Molina-Martinez v. United States, 578 U.S. ___, 136 S. Ct. 1338, 1343 (2016)).
Martinez’s motion for leave to appeal (Doc. No. 1596) is hereby DENIED.
IT IS SO ORDERED.
Dated this 5th day of November, 2019.
/s/ Peter D. Welte
Peter D. Welte, District Judge
United States District Court
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