United States of America v. Bladimir Martinez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BLADIMIR MARTINEZ,
Defendant-Appellant.
No. 15-50205
D.C. No.
3:14-cr-00117-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted August 1, 2016
Pasadena, California
Before: REINHARDT and WARDLAW, Circuit Judges, and WHYTE,** District
Judge.
Bladimir Martinez (“Martinez”) appeals his conviction and sentence for
being a removed alien found in the United States in violation of 8 U.S.C. § 1326.
FILED
MAR 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.

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We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm Martinez’s
conviction.1
1. The district court did not err in denying Martinez’s motion to dismiss the
information. Martinez moved to dismiss on the ground that his 2012 removal, a
predicate element of the charge against him, was fundamentally unfair. See
8 U.S.C. § 1326(a), (d). To demonstrate fundamental unfairness, Martinez must
show (1) that the removal proceeding violated his due process rights and (2) that he
suffered prejudice as a result. United States v. Reyes-Bonilla, 671 F.3d 1036, 1043
(9th Cir. 2012). We need not decide whether the proceeding violated Martinez’s
due process rights, because he cannot establish prejudice. He was not prejudiced
because there were no “‘plausible grounds’ on which he could have been granted
relief from removal” in 2012. See id. at 1049.
Because of his 2010 conviction for an aggravated felony, Martinez was
barred from obtaining asylum, withholding of removal, or discretionary forms of
relief. See id. at 1050. The only relief for which he was eligible was deferral of
removal under the Convention Against Torture (“CAT”). See id. To obtain relief,
Martinez would have needed to show that, under the circumstances present in 2012,
1 In a concurrently filed opinion, we vacate Martinez’s sentence because the
district court received and answered a question from the jury during deliberations
in violation of Federal Rule of Criminal Procedure 43 and the Sixth Amendment.
2

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it was “more likely than not” that he would be tortured upon removal to Guatemala
with the consent or acquiescence of a public official. See 8 C.F.R.
§§ 208.16(c), 208.17(a); Cole v. Holder, 659 F.3d 762, 770–71 (9th Cir. 2011).
Martinez could not have made that showing in 2012. While Martinez
presents evidence that, before leaving Guatemala in 2005, he received death threats
from fellow gang members for refusing to comply with their demands, these
threats were too vague and remote in time to establish that he was likely to be
tortured upon his return in 2012. Moreover, the record suggests that Martinez
lived in Guatemala without incident for some time after the threats were made.
Therefore, the vague threats could not constitute past torture that would have raised
an inference of future torture. Cf. 8 C.F.R. § 208.18(a)(4)(iii) (stating that torture
encompasses mental harm caused by “[t]he threat of imminent death”); Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (holding that unfulfilled threats were
insufficient to establish past persecution for purposes of asylum, which has a lower
standard of proof than for CAT protection).
Martinez argues that the presence of a partially removed gang tattoo on his
body made it “more likely than not” that he would be tortured upon his return to
Guatemala. However, Martinez’s tattoo is inconspicuous and easily covered by a
shirt. Therefore, it was unlikely to make him a target for attacks. Cf. Andrade v.
3

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Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015) (stating that gang tattoos may provide
support for a CAT claim when they are conspicuous). Furthermore, the country
conditions reports Martinez cites describing gang violence in Guatemala do not,
without more, indicate that Martinez himself was likely to be a target of the
violence. See Go v. Holder, 640 F.3d 1047, 1054 (9th Cir. 2011) (stating that
while “country reports contain[ed] generalized evidence suggesting a relatively
high level of mistreatment and abuse” in the country of removal, the “specific
circumstances” of the petitioner’s case did not indicate that he would be harmed or
mistreated).
2. The district court did not abuse its discretion in denying Martinez’s request
for an evidentiary hearing. Crediting all of Martinez’s evidence, Martinez cannot
establish that his 2012 removal was fundamentally unfair because he cannot show
that any alleged due process violation prejudiced his ability to obtain relief.
Therefore, he was not entitled to an evidentiary hearing. See United States v.
Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980) (“[I]f the affidavits show as a matter of
law that appellant was or was not entitled to relief, no hearing was required.”).
AFFIRMED.
4

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