United States of America v. Eddie Martinez, a/k/a ERIFREDO EDDIE MARTINEZ EDDIE MARTINEZ

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-1027
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UNITED STATES OF AMERICA
v.
EDDIE MARTINEZ,
a/k/a ERIFREDO EDDIE MARTINEZ
EDDIE MARTINEZ,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cr-00183-2)
District Judge: Honorable Joel A. Pisano
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Submitted Under Third Circuit LAR 34.1(a)
February 26, 2010
Before: CHAGARES, STAPLETON, and LOURIE*, Circuit Judges.
(Filed: March 4, 2010 )
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OPINION OF THE COURT
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*Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals for the
Federal Circuit sitting by designation.

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LOURIE, Circuit Judge.
Eddie Martinez appeals from the judgment of the United States District Court for the
District of New Jersey sentencing him to 70 months in prison for drug trafficking and firearm
offenses. We will affirm.
I. BACKGROUND
On August 6, 2007, Martinez pled guilty to one count of conspiracy to distribute and
possess with intent to distribute over 500 grams of cocaine contrary to 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(ii) in violation of 21 U.S.C. § 846 and one count of possession of a firearm after
previously being convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Martinez’s Pre-
Sentencing Report calculated a combined offense level of 27 under the Sentencing Guidelines.
Martinez’s plea agreement stipulated to an offense level of 25 based on (1) a downward
adjustment of two levels for accepting personal responsibility pursuant to Guideline § 3E1.1(a)
and (2) a downward adjustment of one level for timely agreeing to enter a plea pursuant to
§ 3E1.1(b). The District Court accepted the stipulated total offence level of 25 at Martinez’s
sentencing hearing on November 20, 2007.
At the hearing, the District Court also calculated a criminal history category of three based
on five criminal history points. In so doing, the Court rejected Martinez’s argument that a drug-
related conviction in which he was sentenced under North Carolina’s Youthful Offender Act
qualified as a juvenile rather than as an adult conviction. The Court thus assigned three criminal
history points for that conviction under Sentencing Guideline § 4A1.2(d)(1).
Finally, the District Court denied Martinez’s motions for two further downward
departures, one under Guideline § 5H1.6 for extraordinary family circumstances and another

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under § 5K2.0 for providing assistance to law enforcement. With regard to his family
circumstances, the Court found that Martinez had made no more than a generic argument that his
family will suffer hardship as a result of his incarceration. With regard to assisting law
enforcement, the Court found that the assistance did not rise to such a level as to take it out of the
heartland of the Guidelines for purposes of § 5K2.0 and that granting the motion would require
the Court to substitute its judgment for that of the United States Attorney, who had declined in
this case to file a motion in support of a departure for providing substantial assistance to
authorities under § 5K1.1. The Court recognized its discretion to grant a departure but
nevertheless, for both motions, declined to exercise that discretion, resulting in a final Guideline
range of 70 to 87 months imprisonment.
The District Court sentenced Martinez to 70 months in prison and four years of supervised
release. Martinez appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II. DISCUSSION
When reviewing a sentence, this Court must first “ensure[] that the district court
committed no significant procedural error” and “then, at stage two, consider its substantive
reasonableness.” United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). Where a defendant challenges the calculation of
the Guidelines’ range, this Court reviews a district court’s interpretation of the Sentencing
Guidelines de novo and reviews any findings of fact used in the calculation for clear error. United
States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008).
Martinez alleges three errors in the District Court’s sentencing decision. First, Martinez

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argues that the District Court incorrectly added three points to his criminal history by including a
conviction in which he was sentenced as a Committed Youthful Offender under North Carolina
law and served only two months. Second, Martinez alleges that the District Court abused its
discretion in denying a motion for a downward departure under Sentencing Guideline § 5H1.6
based on his extraordinary family circumstances, and specifically his close relationship with and
positive influence on his children. And finally, Martinez alleges that the Court abused its
discretion in denying a motion for a downward departure for his cooperation with the government
under Guideline § 5K2.0 despite the government’s refusal to submit a motion under § 5K1.1.
The government responds that the District Court correctly added three points to Martinez’s
criminal history under Sentencing Guideline § 4A1.2(d)(1) because Martinez’s drug conviction at
age 17 was an adult conviction under North Carolina law, for which he received an 18-month
sentence. With regard to the District Court’s denial of downward departures under § 5H1.6 and
§ 5K2.0, the government argues that this Court does not have jurisdiction to review such
discretionary denials.
We agree with the government that the District Court did not err in assigning three points
to Martinez’s criminal history under § 4A1.2(d)(1) based on his drug-related conviction in North
Carolina. The District Court committed no clear error in finding that Martinez’s North Carolina
conviction was an adult conviction. See Wood, 526 F.3d at 85. Martinez acknowledged that he
was over 16 years of age at the time he committed the offense, making him subject to prosecution
as an adult under North Carolina law. N.C. Gen. Stat. § 7B-1604. Moreover, sentencing as a
Committed Youthful Offender does not negate the effect of an adult conviction under the
Guidelines. Finally, the fact that Martinez served only two months is irrelevant. The conviction

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imposed an 18-month sentence, meeting § 4A1.2(d)(1)’s requirement that the sentence imposed
exceed one year and one month.
We also agree with the government that we do not have jurisdiction to review the District
Court’s discretionary decision not to grant two further downward departures. See United States v.
Vargas, 477 F.3d 94, 103 (3d Cir. 2007). We do, however, have jurisdiction when a district court
mistakenly believes that it lacked the discretion to grant a departure. Id. In this case, Judge Joel
Pisano explicitly stated at the sentencing hearing that he recognized that he had, but would not
exercise, the discretion to grant Martinez’s motions for downward departures under § 5H1.6 and
§ 5K2.0. As such, we lack jurisdiction to review the District Court’s denial of Martinez’s
motions.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s sentencing judgment.

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