Submitted: June 12, 2015
Appeal from United States District Court for the District of Nebraska - Lincoln
Before LOKEN, BYE, and KELLY, Circuit Judges.
BYE, Circuit Judge.
Fernando Martinez pled guilty to possession of fifty grams or more of methamphetamine with the intent to distribute. The district court found Martinez to be a career offender based in part on the residual clause of § 4B1.2(a)(2) of the United States Sentencing Guidelines (U.S.S.G.) and sentenced him to 262 months' imprisonment. It indicated, alternatively, it would sentence Martinez as a career offender even if he was not a career offender. Martinez appeals, arguing he is not a career offender and his sentence is substantively unreasonable.
The government concedes Martinez is no longer a career offender under the guidelines following the United States Supreme Court's decision in Johnson v. United States, ___U.S. ___, 135 S.Ct. 2551, 2557 (2015), but asserts no remand is necessary because the district court imposed a reasonable alternative sentence that renders any error harmless. Because we conclude otherwise – that the district court's alternative sentence is substantively unreasonable – we reverse and remand for resentencing.
Martinez is a twenty-seven-year-old father of three who pled guilty in August 2014 to possession of fifty grams or more of methamphetamine with the intent to distribute. Prior to sentencing, a probation officer prepared a presentence investigation report (PSIR), which recommended the district court find Martinez to be a career offender under U.S.S.G. § 4B1.2 – a finding that would increase his guideline sentencing range by nine years – because he committed two crimes as a teenager that qualify as "crimes of violence."
When Martinez was eighteen, he shot a rifle at two individuals standing outside a residence as part of a gang-related drive-by shooting. Several individuals, including two young children, were at the residence at the time of the shooting, but no one was injured. Martinez was arrested and charged with unlawful discharge of a firearm, a violation of Nebraska law. Martinez posted bond and was released from custody while his case was pending.
A few months later, Martinez failed to appear for his pretrial conference and the court issued a bench warrant for his arrest. Later that day, officers spotted Martinez walking with another individual. The officers approached Martinez and one held him by the wrists and grabbed his handcuffs to place him under arrest. Before the officer handcuffed him, Martinez twisted, threw his elbow toward the officer (without making contact), and ran from the officers for a short distance until he was tackled and arrested. For this conduct, Martinez was charged with escape while under arrest on a felony charge, also a violation of Nebraska law. He pled no contest to the charge.
In early 2008, Martinez was sentenced to six- to eight-years' custody for his unlawful discharge of a firearm conviction, and two- to three-years' custody for his escape conviction. He was paroled on both charges in November 2010. From the date of his release until his arrest in March 2014 in this case, his only scoreable offense was a 2013 conviction for unauthorized use of a propelled vehicle, for which he paid a $200 fine.
Martinez objected to the PSIR's career offender recommendation on the ground that his conviction for escape while under arrest on a felony charge was not a crime of violence. Prior to his sentencing hearing, Martinez filed a brief arguing his escape conviction was not a crime of violence because it did not "involve conduct that presents a serious potential risk of physical injury to another, " as required under the residual clause of U.S.S.G. § 4B1.2(a)(2). Martinez also filed a motion for a downward variance if the district court found him to be a career offender.
At Martinez's sentencing hearing on December 18, 2014, the district court found Martinez had a base offense level of 32. After reviewing the charging documents and the change of plea transcript from Martinez's Nebraska escape conviction, and hearing testimony from Investigator Chris Anderson regarding the general circumstances that arise when making a felony arrest, the district court found the escape conviction was a crime of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2). It therefore found Martinez to be a career offender, which enhanced his offense level to 37. The district court applied a three-level downward adjustment for acceptance of responsibility, which yielded a total offense level of 34. Martinez had a criminal history score of 9 points, but his career offender designation placed him in criminal history category VI, yielding a guideline range of 262 to 327 months.
The district court alternatively found that even if Martinez was not "technically" a career offender under the guidelines, it would still consider him as such. It noted the "especially violent nature" of Martinez's behavior, pointing to his prior convictions for unlawful discharge of a firearm and escape while under arrest on a felony charge, along with evidence the government presented at sentencing that Martinez had ties to local gangs. The district court therefore indicated that even if its career offender ruling was erroneous, ...