On appeal from The United States District Court for the Southern District of Florida ">

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Date: 12-25-2021

Case Style:

United States of America v. Alexis Martinez

Case Number: 21-11312

Judge: Before WILLIAM PRYOR, Chief Judge, LUCK and BRASHER, Circuit Judges. PER CURIAM:


United States Court of Appeals For the Eleventh Circuit
On appeal from The United States District Court for the Southern District of Florida

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

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Atlanta, GA- Criminal defense lawyer represented defendant with a possessing methamphetamine with intent to distribute charge.

Alexis Martinez appeals his sentence of 120 months of imprisonment following his plea of guilty to possessing methamphetamine with intent to distribute. 21 U.S.C. § 841(a)(1). Martinez
challenges the enhancement of his sentence by two levels for possessing a firearm in connection with his drug crime, United States
Sentencing Guidelines Manual § 2D1.1(b)(1) (Nov. 2018), and the
denial of safety-valve relief, id. § 5C1.2(a)(2). We affirm.
Police officers in Key West, Florida, stopped Martinez for a
traffic offense. A narcotics canine alerted to the presence of drugs
on the passenger side of the vehicle, where Martinez’s wife was sitting in the front seat and their newborn baby was secured in the
back seat. Officers searched the vehicle and found a hidden compartment containing a digital scale and 2.26 kilograms of methamphetamine. Officers also discovered three rounds of ammunition
in the center console of the vehicle, an empty ammunition magazine in the back floorboard, and an unloaded AR-15 rifle and a box
of sixteen rounds of ammunition in the trunk.
Martinez admitted in his factual proffer that he was paid to
transport the methamphetamine from Arizona to Key West and
that he had been paid to transport drugs on ten other occasions.
USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 2 of 7
21-11312 Opinion of the Court 3
Martinez also admitted that his rifle, which he had purchased in
Arizona, was in the trunk of his vehicle.
Martinez’s presentence investigation report provided a base
offense level of 32, id. § 2D1.1(c)(4), added two levels for his possession of a firearm, id. § 2D1.1(b)(1), and subtracted three levels
for his acceptance of responsibility, id. § 3E1.1. Based on Martinez’s
total offense level of 31 and criminal history of I, the presentence
report provided an advisory sentencing range of 108 to 135 months
of imprisonment. But Martinez’s minimum statutory sentence of
120 months of imprisonment, 21 U.S.C. § 841(b)(1)(A)(viii), became the low end of his sentencing range, U.S.S.G. § 5G1.1(b).
Martinez objected to the two-level enhancement of his sentence for possessing a firearm and its effect of “disqualif[ying] [him]
from a safety valve adjustment pursuant to U.S.S.G. § 5C1.2.” Martinez alleged that his “rifle was in the trunk . . . to keep it in a safe
place away from my children.” He also alleged that “the ammunition which was found in the car [was] the wrong caliber to be shot
from the rifle” and, “[e]ven if the ammunition [could] be fired from
this rifle, . . . [his] position [was] that the weapon was in the car to
keep it away from his family – not in furtherance of the transportation of the controlled substance.” Martinez argued that, if the district court “determine[d] that the 2 level weapon enhancement is
inappropriate,” he “will then receive a 2 level reduction to his
guidelines,” and could receive a sentence less than “the mandatory
minimum [of] 120 months.”
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4 Opinion of the Court 21-11312
The United States responded that Martinez possessed a firearm during his drug crime and had failed to establish that “it [was]
clearly improbable that the weapon was connected with [his] offense.” See U.S.S.G. § 2D1.1 & cmt. n.11. At sentencing, a special
agent of the Department of Homeland Security described discovering ammunition and a magazine inside Martinez’s vehicle and his
rifle near a box of ammunition, a suitcase, a fishing pole, and some
household items in the trunk. The agent authenticated photographs taken of Martinez’s vehicle and trunk. The agent also testified that Martinez’s rifle used .223 caliber rounds, he possessed .222
caliber rounds, and the smaller caliber round could “chamber,” but
“did not extract properly” from, the rifle. The agent acknowledged
that the ammunition and rifle were never test fired.
The district court overruled Martinez’s objection to the twolevel firearm enhancement. The district court found that “the Government . . . established clearly that the weapon was . . . knowingly,
intentionally involved with this particular drug transaction.” The
district court based its finding on Martinez’s experience that made
him “aware of the dangers he faced in transporting narcotics across
the United States and in his car”; on “the fact that he brought very
few things along with him except the semiautomatic rifle and 16
rounds of ammunition, [and] clothes that were in the trunk of the
car”; and on the location of “the firearm . . . in plain sight, on top,
readily available, should someone open the trunk and reach in to
get it.” The district court rejected Martinez’s argument that the rifle was “[un]usable without the . . . clip” because there was “no
USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 4 of 7
21-11312 Opinion of the Court 5
proof that he did not know that he might have trouble with calibering or noncalibering” or that he “didn’t know he had a slightly
different ammo than the gun usually took . . . .” The district court
also rejected as implausible Martinez’s argument that he traveled
with the firearm to protect his children. The district court reached
“the inescapable conclusion” that Martinez’s decision to “put [the
rifle] in the trunk of the car and br[ing] it with him, laying it right
on top” revealed “that he brought the gun along for use, if it should
be needed, in this drug transportation . . . .”
The district court denied Martinez’s request for a downward
variance and sentenced him to 120 months of imprisonment. That
decision followed the prosecutor’s argument that “Martinez does
not qualify for safety valve” and “the lowest sentence . . . [to] give
him is . . . 120 months.” The prosecutor stated he “[did not] know
if [defense counsel] [was] going to object to that,” and defense
counsel “agree[d] that the 120 months sentence . . . is necessary to
serve the 3553(a) factors.” Later, Martinez “simply renew[ed] [his]
objection to the propriety of the enhancement for the firearm in
PSI, paragraph one.”
We review for clear error the factual finding that Martinez
possessed a firearm in connection with his drug offense. United
States v. George, 872 F.3d 1197, 1204 (11th Cir. 2017). “Under the
clearly erroneous standard, we must affirm the district court unless
review of the entire record leaves us with the definite and firm conviction that a mistake has been committed.” United States v.
McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (quoting United
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6 Opinion of the Court 21-11312
States v. Engelhard Corp., 126 F.3d 1302, 1305 (11th Cir. 1997)). “As
long as the district court’s findings are plausible, we may not reverse the district court even if we would have decided the case differently.” Id. (quoting Engelhard).
A defendant is subject to a two-level increase in his base offense level if he possessed a dangerous weapon in connection with
a drug offense. U.S.S.G. § 2D1.1(b)(1). “To justify a firearms enhancement, the government must either establish by a preponderance of the evidence that the firearm was present at the site of the
charged conduct or prove that the defendant possessed a firearm
during conduct associated with the offense of conviction.” United
States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). Such evidence shifts the burden to the defendant to prove that a “connection between the weapon and the offense was clearly improbable.”
Id. (internal quotation marks omitted); U.S.S.G. § 2D1.1(b)(1) cmt.
n.11 (“The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.”).
The district court did not clearly err by finding that Martinez
possessed a rifle in connection with his drug crime. “[G]uns are a
tool of the drug trade,” United States v. Pham, 463 F.3d 1239, 1246
(11th Cir. 2006), and Martinez admitted that he had the rifle, ammunition, and an ammunition magazine in the vehicle he was using to transport illegal drugs from Arizona to Florida. To determine whether a connection exists between “guns found in proximity to drugs,” the “potential [to] use [a gun] is critical” because
USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 6 of 7
21-11312 Opinion of the Court 7
“there is a strong presumption that a defendant aware of the
weapon’s presence will think of using it if his illegal activities are
threatened.” United States v. Carillo–Ayala, 713 F.3d 82, 92 (11th
Cir.2013). The district court reasonably inferred that Martinez, a
seasoned narcotics courier, knew the hazards of moving narcotics
cross-country, brought a firearm to protect his valuable cargo, kept
ammunition within reach, and stored his weapon where it would
be out of plain sight but quickly accessed. The district court was
entitled to find that Martinez’s “weapon was . . . knowingly [and]
intentionally involved with this particular drug transaction.”
Martinez argues that he is eligible for a reduction of his sentence under the safety valve, but he waived his right to challenge
the denial of such sentencing relief. Under the doctrine of invited
error, when a defendant “induces or invites the district court into
making an error[,]” “he cannot later complain that any resulting
error is reversible.” United States v. Brannan, 562 F.3d 1300, 1306
(11th Cir. 2009). Martinez stated in his objection to his presentence
report, and agreed at sentencing, that if the firearm enhancement
applied to him, he was “disqualified from a safety valve adjustment.” Martinez “cannot [now] cry foul” based on the denial of
safety-valve relief. Id

Outcome: We AFFIRM Martinez’s sentence.

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