United States of America v. Alfredo Martinez -Jimenez

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4234
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
A LFREDO M ARTINEZ -J IMENEZ ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 426—Charles P. Kocoras, Judge.
____________
A RGUED A PRIL 19, 2002—D ECIDED J UNE 27, 2002
____________
Before BAUER , P OSNER and E ASTERBROOK , Circuit Judges.
B AUER , Circuit Judge. The appellant, Alfredo Martinez-
Jimenez, was indicted for illegal re-entry into the United
States. Martinez-Jimenez entered a guilty plea, which
was accepted by the district court, and was sentenced to
21 months imprisonment with three years supervised re-
lease, a fine of $2000 and a $100 assessment. On appeal,
Martinez-Jimenez argues that the district court improp-
erly calculated his sentence under the United States
Sentencing Guidelines (USSG). Because the appellant has
waived any claim of error in the calculation of his sentence,
we A FFIRM the decision of the district court.

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2 No. 01-4234
1 Application Note 2 of section 2L1.2 in the 2001 USSG, which
were used because they were more favorable to the defendant,
adopts the definition of “aggravated felony” set forth in 8 U.S.C.
§ 1101(a)(43), which in turn incorporates the definition of “crime
of violence” set forth in 18 U.S.C. § 16(b). Section 1101(a)(43)(F)
defines an aggravated felony as “a crime of violence . . . for which
the term of imprisonment is at least one year.” Section 16(b)
provides that a crime of violence is an “offense that is a felony and
(continued...)
Background
On August 23, 1993, a Cook County grand jury indicted
Martinez-Jimenez in two counts of violating the Illinois
Child Abduction statute. 720 ILCS 5/10-5(10). Martinez-
Jimenez pled guilty and was convicted for attempting to
lure a child into a motor vehicle for an unlawful purpose.
He was sentenced to three years imprisonment in the Illi-
nois Department of Corrections. As part of the sentencing
process, the state advised the judge of the circumstances
surrounding the crimes at issue, including that Martinez-
Jimenez, while exposing himself and masturbating, told
two young girls to get into his van and not to tell their
mother. Following his release from custody, Martinez-
Jimenez was deported. On April 1, 2001, Martinez-Jimenez
was found in Chicago without permission to re-enter the
United States. He was arrested and thereafter charged
with illegal re-entry in violation of 8 U.S.C. § 1326.
Pursuant to a written plea agreement, Martinez-Jimenez
pled guilty to the charge of unlawfully entering or being
found in the United States after deportation. Prior to sen-
tencing, both Martinez-Jimenez and the government sub-
mitted arguments regarding the appropriate offense level
calculation under the USSG. Specifically, the parties ad-
dressed and disputed whether Martinez-Jimenez’ prior
state conviction qualified as a “crime of violence” and thus
an “aggravated felony” 1 justifying an eight point enhance-

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No. 01-4234 3
1 (...continued)
that, by its nature, involves a substantial risk that physical force
against the person . . . may be used in the course of committing
the offense.”
ment to the base offense level of eight under the USSG. At
sentencing, the district court adopted the probation offi-
cer’s supplemental report, which included an eight level
increase for Martinez-Jimenez’ prior conviction for an “ag-
gravated felony.” Accordingly, the district court added
eight levels to the base offense level of eight and subtracted
three levels pursuant to USSG § 3E1.1 and the plea agree-
ment, thereby producing an adjusted offense level of 13.
When asked whether he disputed the adjusted offense level
of 13, Martinez-Jimenez, by way of counsel, voiced no ob-
jection and responded, “We do not.”
Discussion
The government argues that Martinez waived any claim
of error in the calculation of his offense level. Waiver oc-
curs when a defendant intentionally relinquishes a known
right. United States v. Staples, 202 F.3d 992, 995 (7th Cir.
2000) (citations omitted). Waiver operates to extinguish the
claim of error and precludes appellate review. Id.; United
States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000)
(“[W]e cannot review waived issues at all because a valid
waiver leaves no error for us to correct on appeal.”) (cita-
tions omitted).
When asked whether he had any dispute with the court’s
conclusion that his offense be categorized as a level 13,
Martinez stated that he did not. By such statement,
Martinez plainly communicated an intention to relinquish
and abandon any arguments related to his offense level
calculation. See, e.g., United States v. Richardson, 238 F.3d

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4 No. 01-4234
837, 841 (7th Cir. 2001) (answering no to question of wheth-
er there was any objection to a two-level sentencing en-
hancement was a waiver in the strict sense of the term,
thereby barring further judicial consideration); Harris,
230 F.3d at 1059 (finding that by affirmatively declining
to object at sentencing, defendant extinguished sentenc-
ing issue); United States v. Redding, 104 F.3d 96, 99 (7th
Cir. 1996) (holding statements in transcript evidencing
acceptance of sentencing calculations constituted waiver)
(citing United States v. Olano, 507 U.S. 725, 732 (1993)).
Martinez-Jimenez argues that the court and/or the govern-
ment were confused and that, as a result, it was unclear
what was being waived. After reviewing the record, we find
this argument unpersuasive. Further, Martinez-Jimenez
can hardly claim ignorance on the part of himself or any-
one else where, as here, he and the government submitted
arguments concerning the very sentencing calculation is-
sue for which he now seeks appellate review, and the pro-
bation officer prepared a supplemental report outlining and
explaining the offense level computations of which all par-
ties and the court were aware. Cf. United States v. Staples,
202 F.3d 992, 995 (7th Cir. 2000) (finding that where the
defendant knew he had a right to object to the calcula-
tion of his criminal history, knew the contents of the pre-
sentencing report, and affirmatively decided not to object
despite such knowledge, his right to appeal calculation
issue was waived). Martinez-Jimenez has waived any chal-
lenge to the district court’s offense level calculation and
appellate review is precluded.
Even if we were to disregard the contents of the record
and assume that Martinez-Jimenez’ relinquishment of his
sentencing argument was unintentional, resulting in a for-
feiture rather than a waiver, we still would not disturb the
sentence imposed by the district court. The court’s allow-
ance of an “aggravated felony” enhancement for a crime
that entailed the luring or enticement of a child into a ve-

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No. 01-4234 5
hicle for an unlawful purpose is simply not clear error
when such deviant conduct by its nature involves a sub-
stantial risk that in the course of such offense, force may
be used against the young victim. The eight level increase
in Martinez-Jimenez’ offense level computation provides
no grounds for reversal.
Conclusion
The appellant’s conviction and sentence is hereby
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-27-02

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