United States v. Patricio Martinez

PER CURIAM: * Patricio Pena Martinez pleaded guilty pursuant to a written plea agreement to conspiracy to possess with intent to distribute five kilograms or more of cocaine. The district court imposed a within-guideline sentence of 108 months in prison. Martinez first argues that because the record clearly reflects that the district court believed that it had no discretion to consider his alleged cooperation in the absence of a U.S.S.G. § 5K1.1 motion, the district court effectively rendered the Guidelines mandatory, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker rendered the Sentencing Guidelines advisory rather than mandatory. See id. at 245-46, 125 S.Ct. 738. Booker instructs appellate courts to review sentences for reasonableness in light of the statutory sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 260-62, 125 S.Ct. 738. The district court’s statements at sentencing belie Martinez’s argument that the court believed it could not depart in the absence of a § 5K1.1 motion. The district court, after hearing the sentencing arguments of counsel, stated that it had considered the factors in § 3553(a) and found that a sentence within the guideline range was “appropriate.” The court declined to depart downward, believing that it was “not warranted.” See United States v. Washington, 480 F.3d 309, 320 (5th Cir.2007) (“[T]he district court implicitly recognized that it could deviate from the Guidelines, but based on the facts before it, decided not to do so.”). The district court did not state that it could not depart because no § 5K1.1 motion had been filed; it merely noted that no § 5K1.1 motion had been filed. We also reject Martinez’s assertion that the Government breached the plea agreement by failing to file a § 5K1.1 motion for downward departure based on his *404 substantial cooperation. Because Martinez neither shows that the Government bargained away its discretion to file a § 5K1.1 motion nor argues that the Government acted with unconstitutional motive, his downward departure claim is not reviewable. See Wade v. United States, 504 U.S. 181, 185-87, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Urbani, 967 F.2d 106, 110-11 (5th Cir.1992). AFFIRMED. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.