UNITED STATES OF AMERICA v. JOSÉ G. MARTÍNEZ-BENÍTEZ

Boston, MA - Criminal defense lawyer represented defendant with possessing a firearm despite his status as a felon charge.

How Martínez's Case Got Here

Martínez pled guilty in federal court to possessing

firearm despite his status as a felon. See 18 U.S.C. § 922(g)(1).

His was a "straight plea," meaning he and the government did not

enter into any plea agreement. As for how things shook out at

sentencing, this is what you need to know.2

1 According to Spanish naming conventions, if a person has

two surnames, the first (which is the father's last name) is

primary and the second (which is the mother's maiden name) is

subordinate. Which is why we use "Martínez" for the rest of the

opinion.

2 First, though, a quick heads-up for the lay readers out

there: Sentencing under the federal sentencing guidelines starts

with the base offense level — i.e., a point score for a specified

offense or group of offenses. See, e.g., United States v. SerranoMercado, 784 F.3d 838, 840 (1st Cir. 2015). The guidelines then

make adjustments for any aggravating or mitigating factors in the

defendant's case, thus arriving at a total offense level. See id.

The guidelines also assign points based on the defendant's criminal

history — points that get converted into various criminal history

categories, designated by Roman numerals I through VI. Id. Armed

with this info, the judge turns to the guidelines's sentencing

table. Id. And by plotting the defendant's total offense level

along the table's vertical axis and his criminal history category

along the table's horizontal axis, the judge ends up with an

advisory prison range. Id. From there, the judge sees if any

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The sentencing guidelines apply an enhanced base offense

level of 20 for firearm offenses preceded by one felony conviction

for a "controlled substance offense," see U.S.S.G.

§ 2K2.1(a)(4)(A) — a phrase that pertinently covers a state-law

crime, "punishable by imprisonment for a term exceeding one year,

that prohibits . . . the possession of a controlled substance . . .

with intent to . . . distribute," id. § 4B1.2(b); see also id.

§ 2K2.1 cmt. n.1 (referring the reader to § 4B1.2(b) and its

accompanying application note 1 for a definition of a "[c]ontrolled

substance offense").3 And the phrase covers as well "the offenses

of aiding and abetting, conspiring, and attempting to commit such

offenses." Id. § 4B1.2 cmt. n.1. Also of prime importance to the

present controversy, the government has "the burden of

establishing" by a preponderance of the evidence "that a prior



departures are called for, considers various sentencing factors,

and determines what sentence (whether within, above, or below the

suggested range) seems appropriate. See, e.g., United States v.

Dávila-González, 595 F.3d 42, 46 (1st Cir. 2010).

3 No one argues that Puerto Rico is unlike a state for

§ 4B1.2(b) purposes. See generally United States v. Torres-Rosa,

209 F.3d 4, 8 (1st Cir. 2000) (concluding that "because the

[defendant] had not shown" that the guidelines "'meant to exclude

felony convictions in Puerto Rico Commonwealth Courts for

enhancement purposes,' no plain error inhered" (quoting United

States v. Morales-Diaz, 925 F.2d 535, 540 (1st Cir. 1991));

Morales-Diaz, 925 F.2d at 540 (rejecting the defendant's

unpreserved suggestion that "because Puerto Rico is not a state,"

the Puerto Rico conviction in play there was not a state-law

offense "under § 4B1.2" (internal quotation marks omitted)). So

we say no more about that subject.

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conviction qualifies as a predicate offense for sentencing

enhancement purposes." United States v. Dávila-Félix, 667 F.3d

47, 55 (1st Cir. 2011); United States v. Bryant, 571 F.3d 147, 153

(1st Cir. 2009).

From the documents presented by prosecutors at

sentencing, the district judge learned that years before his runin with the feds, Puerto Rico authorities had charged Martínez

with knowingly or intentionally possessing heroin with intent to

distribute, in violation of Puerto Rico's Controlled Substances

Act ("CSA"), see P.R. Laws Ann. tit. 24, § 2401 — a law commonly

called "Article 401." As relevant here, Article 401 criminalizes

the possession of certain controlled substances (including heroin)

with intent to "manufacture, distribute, dispense, transport or

conceal," see id. § 2401(a)(1), and calls for a "fixed" prison

"term" of 20 years, which may be increased to a 30-year "maximum"

term or decreased to a 10-year "minimum" term, if "aggravating" or

"extenuating" circumstances exist, see id. § 2401(b)(1)(A). We

have dealt with Article 401 before, for instance in an opinion

holding that "intent to conceal" is "a non-predicate offense" under

§ 4B1.2(b). See Dávila-Félix, 667 F.3d at 56 (concluding that

"concealment of a controlled substance" is "not commonly

considered [a] drug trafficking offense[]").

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Anyway, Martínez pled guilty to a "reclassified" charge

of "attempt[ing] or conspir[ing] to commit" an "offense" under

Puerto Rico's CSA, see P.R. Laws Ann. tit. 24, § 2406 — a provision

colloquially called "Article 406," the penalty for which "shall

not exceed" the penalty for the substantive "offense" that "was

the object of the attempt or conspiracy." By doing so, he avoided

a fixed mandatory 20-year prison term and made himself eligible

for a suspended sentence. See P.R. Laws Ann. tit. 34, § 1027; see

also P.R. Laws Ann. tit. 24, § 2414.4 And ultimately, the Puerto

Rico court gave him a 3-year suspended sentence —— a sentence that

has special significance as to the nature of the offense.

You should know too (because it affects the case's

outcome, for reasons explained presently) that Puerto Rico's CSA

4 The first statute authorizes the Puerto Rico "Court of First

Instance" to

suspend the effect of the sentence of imprisonment in

all cases of felonies . . . other than . . . [o]ne of

the following felonies under the [CSA]: § 2401

(prohibited acts); § 2405 (distribution to persons under

eighteen . . . years of age); § 2411 (employment of

minors); § 2411a (introduction of drugs to schools and

institutions), all of Title 24.

P.R. Laws Ann. tit. 34, § 1027(6). The second statute says that

"[t]he provisions on suspended sentence" are not "applicable to"

persons "convicted of violating §§ 2401(a), 2405, 2411 and 2411a

of this title when the distribution, sale, introduction,

dispensing or possession and transportation for the purpose of

distribution is involved, except in those cases in which the

provisions of §§ 1042 and 1043 of Title 34 are applicable." P.R.

Laws Ann. tit. 24, § 2414.

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bans not only possession-with-intent-to-distribute offenses

covered by Article 401, but also (among other things) simplepossession offenses (i.e., offenses involving possession of drugs

not prescribed, with no intent to distribute), see P.R. Laws Ann.

tit. 24, § 2404 — a law widely referred to as "Article 404," which

outlaws the knowing or intentional possession of "any controlled

substance, unless such substance was obtained directly, or

pursuant to a valid prescription or order from a practitioner,

while acting in the course of his professional practice, or except

as authorized by this chapter." Article 404 calls for a "fixed"

3-year prison "term," which may be increased to a 5-year "maximum"

term or decreased to a 2-year "minimum" term, if "aggravating" or

"extenuating" circumstances exist. We are also no strangers to

Article 404 — just consider United States v. Román-Huertas, 848

F.3d 72 (1st Cir. 2017), which holds that an Article 404 "mere

possession offense[]" does not count as a qualifying predicate

under § 4B1.2(b). Id. at 77; see also United States v. RamosGonzález, 775 F.3d 483, 507 n.27 (1st Cir. 2015).

Kicking off the sentencing in the federal case, the

district judge noted that while the charging document in the Puerto

Rico case listed Martínez's crime as an Article 401 possessionwith-intent-to-distribute offense, the judgment showed that he had

pled to an Article 406 attempt-or-conspiracy offense. Then relying

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on a footnote in Puerto Rico v. Ramos Rivas, 2007 TSPR 138, 171

D.P.R. 826, 2007 WL 2079844, at *1 n.1 (P.R. 2007) — which says

that if an Article 401 charge is reclassified as an Article 406

offense, a court "must refer" back to Article 401 to determine the

proper "penalty" — the judge ruled that Martínez's Article 406

conviction was for an "attempted conspiracy to distribute

controlled substances."5 So the judge concluded that the Article

406 conviction amounted to a "controlled substance offense" under

the guidelines and increased Martínez's base offense level

accordingly — from 14 to 20, which helped set his recommended

guidelines range at 30 to 37 months. And when all was said and

done, the judge sentenced him to 34 months in prison.

Unhappy with this outcome, Martínez now appeals.

Jurisdiction and Standard of Review

The district judge had original jurisdiction under 18

U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C.

5 The Ramos Rivas footnote reads in relevant part:

[Article] 406 of the Puerto Rico Controlled Substances

Act . . . punishes the attempt or conspiracy to commit

any of the crimes defined in the act. The [article]

refers to base offenses, the attempt or conspiracy to

commit which gave rise to the sentence imposed.

Consequently, in this case we must refer to [Article]

401 . . . insofar as it concerns the penalty imposed.

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§ 1291. And we review the judge's legal analysis de novo, see

Dávila-Félix, 667 F.3d at 54, noting additional details as needed.

Summary of the Parties' Main Arguments

Attacking the district judge's work, Martínez contends

that none of the government-provided documents showed his Article

406 conviction was for attempt/conspiracy to possess heroin with

intent to distribute (with Article 401 being the object of the

attempt/conspiracy), rather than, say, attempt/conspiracy to

possess heroin without intent to distribute (with Article 404 being

the object of the attempt/conspiracy) — the first is a § 4B1.2-

qualifying predicate, he quickly reminds us; the second is not.

As for the judge's reliance on Ramos Rivas, Martínez claims that

this decision has zero relevance because (in his words) Ramos Rivas

does not hold that "all Article 406 convictions . . . reclassified

from Article 401 are drug trafficking offenses."

The government, contrastingly, argues that the district

judge got everything exactly right. Puerto Rico law, the

government writes, directs courts to "tie" a defendant's Article

406 attempt/conspiracy conviction to a substantive "base offense"

under Puerto Rico's CSA "to determine the fixed penalty" and then

to pick "a penalty not to exceed that maximum." To help with this

task, the government continues, Ramos Rivas requires courts to

"refer[] to the offense in the charging document[]" to discern the

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substantive offense underlying an Article 406 conviction "that

[was] reclassified from [another] charge[]." Putting these points

together, the government repeats that Martínez's plea resulted

from an Article 401 possession-with-intent-to-distribute charge

that got "reclassified to Article 406." And given the charging

document, the judge rightly ruled that Martínez's Article 406

guilty-plea conviction was "for attempting or conspiring to

possess" heroin "with intent to distribute" — or so the government

insists, noting too that Martínez's 3-year suspended sentence did

not "exceed" the pertinent 20-year maximum penalty in Article 401.

Ergo, the government concludes, the judge rightly found that

Martínez's conviction was a § 4B1.2-qualifying predicate.

As a fallback, the government contends that even if we

think Martínez pled guilty to attempting/conspiring to violate

Article 401 by means other than possessing heroin with distributive

intent — like, for example, by possessing heroin with intent to

conceal — we should still affirm his sentence. And that is

because, in the government's view, even though our Dávila-Félix

opinion says Article 401 "criminalizes actions . . . not commonly

considered drug trafficking offenses, such as concealment of a

controlled substance," see 667 F.3d at 56, a Puerto Rico Supreme

Court case predating Dávila-Félix — Puerto Rico v. Rosario Cintrón,

2 P.R. Offic. Trans. 107, 102 D.P.R. 82 (1974) — holds otherwise.

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Thus, according to the government, we as a panel must overrule

Dávila-Félix. Martínez, for his part, claims that the government

waived this argument by not raising it in the district court — a

contention the government disputes.

Our Take

To state the obvious, Martínez's federal sentence can

stand only if his Article 406 attempt/conspiracy conviction

constitutes a controlled substance offense under the guidelines —

an issue (we say again) that the government had the burden of

proving. See Dávila–Félix, 667 F.3d at 55. As the parties agree,

Article 406 covers separate crimes with separate elements — some

of which qualify as controlled substance offenses, like

attempt/conspiracy to possess heroin with distributive intent; and

others of which do not, like attempt/conspiracy to possess heroin

without distributive intent. See Román-Huertas, 848 F.3d at 77.

So, in legalese, Article 406 is a "divisible" statute. See Mathis

v. United States, 136 S. Ct. 2243, 2249 (2016). Which means we

must apply what is called the "modified categorical approach," a

procedure that lets judges look at a narrow set of documents from

a defendant's conviction — like "the indictment, jury

instructions, or plea agreement and colloquy" — to see what crime

he committed. Id. (citing Shepard v. United States, 544 U.S. 13,

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26 (2005), and Taylor v. United States, 495 U.S. 575, 602 (1990));

see also Román-Huertas, 848 F.3d at 77.

Back again then to the government-filed papers. The

charging document in Martínez's Puerto Rico case accused him of

possessing heroin with intent to distribute, in violation of

Article 401. And the sentencing document shows he later pled

guilty to an Article 406 attempt/conspiracy crime, reclassified

from the Article 401 charge. Unfortunately for us, however, the

documents do not say what he pled guilty to attempting/conspiring

to do: possessing heroin with intent to distribute (an Article

401 substantive offense), perhaps — a qualifying predicate under

§ 4B1.2; or perhaps possessing heroin without intent to distribute

(an Article 404 substantive offense) — a non-qualifying predicate

under § 4B1.2. And that failure devastates the government's theory

here, as we now explain.

The 3-year suspended sentence Martínez received is

certainly consistent with his having pled to attempting/conspiring

to possess heroin without distributive intent. But it is equally

consistent with his having pled to attempting/conspiring to

possess heroin with distributive intent. We say that because the

3-year suspended sentence does not exceed the pertinent maximum

penalties under Article 404 and Article 401. Remember: Article

404 calls for a "fixed" 3-year prison "term" for simple possession

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(which the court can raise to a 5-year "maximum" term or drop to

a 2-year "minimum" term, if "aggravating" or "extenuating" factors

exist). See P.R. Laws Ann. tit. 24, § 2404. And Article 401 calls

for a "fixed" prison "term" of 20 years for (among other things)

possession with intent to distribute (which the court can raise to

a 30-year "maximum" term or drop to a 10-year "minimum" term, if

"aggravating" or "extenuating" circumstances exist). See P.R.

Laws Ann. tit. 24, § 2401.

Hoping to get to the bottom of things, we asked the

government's lawyer at oral argument if a defendant charged with

an Article 401 possession-with-intent-to-distribute offense could

cop to an Article 404 simple-possession offense, which could then

serve as the substantive offense underlying an Article 406

attempt/conspiracy guilty-plea conviction. Yes, the lawyer said.6

Which makes sense given that "[d]efendants are frequently charged

for crimes different from those they are ultimately convicted of."

See United States v. Bravo-García, No. 16-1258, slip op. at 3 (1st

Cir. July 10, 2017) (judgment). And based on this truism, we have

6 Possession without distributive intent is a lesser-included

offense of possession with distributive intent — a point the

government does not dispute. See generally Ramos-González, 775

F.3d at 507 (mentioning how a "police complaint" accused a

defendant of possessing cocaine with distributive intent, "a

violation of Article 401," but the defendant later pled "guilty to

a [simple] possession crime" under "Article 404").

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said that a sentencing order "stating that [the defendant's]

Article 406 offense was 'reclassified' from Article 401, on its

own, . . . fails to justify a finding that [her] conviction is

actually under Article 401" instead of some other article. See

id., slip. op. at 2 n.3.

Seeking a way around these obstacles, the government's

attorney basically fell back on an argument made in his brief:

i.e., that because Martínez pled guilty to an Article 406

attempt/conspiracy crime, reclassified from an Article 401

possession-with-intent-to-distribute charge, then under Ramos

Rivas the Article 401 offense is considered the "object" of the

attempt or conspiracy — meaning, at least according to the

government, Martínez pled guilty to attempting/conspiring to

possess a controlled substance with intent to distribute, which

makes his Article 406 conviction a qualifying predicate offense

for a guidelines enhancement. But the government reads way too

much into Ramos Rivas.

Charged with violating Article 401 by possessing cocaine

with distributive intent, the Ramos Rivas defendant pled guilty to

infracting Article 406. See 2007 TSPR at ___, 171 D.P.R. at ___,

2007 WL 2079844, at *1. Noting that she had two prior Article 404

convictions, the lower court imposed a 20-year sentence under a

recidivist statute in Puerto Rico's Penal Code. Id. Displeased,

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the defendant argued on appeal that because her earlier convictions

were for violating Puerto Rico's CSA, the court should have instead

sentenced her under the less-onerous recidivist provision in

Article 401 of the CSA. See 2007 TSPR at ___, 171 D.P.R. at ___,

2007 WL 2079844, at *1-2.7 The Commonwealth's position was

essentially no harm, no foul because the sentence fell "within the

parameters" of Article 401's recidivist provision. See 2007 TSPR

at ___, 171 D.P.R. at ___, 2007 WL 2079844, at *7. Given the Ramos

Rivas parties' laser-like focus on Article 401 in framing the

issue, it makes perfect sense that the Puerto Rico Supreme Court

would say (in the now-much discussed footnote) that "in this case"

(meaning the Ramos Rivas case) one had to "refer to [Article] 401

. . . insofar as it concerns the penalty imposed." See 2007 TSPR

at ___, 171 D.P.R. at ___, 2007 WL 2079844, at *1 n.1 (emphasis

added).8

7 According to Ramos Rivas, the CSA

is a special law that provides that a certain type of

conduct (such as violating [Article] 401 of said act and

having two or more previous felony convictions under

this act) [triggers] the recidivism provision of this

law. In turn, the Penal Code contains a "generic"

recidivism provision under which it penalizes those who

have committed a felony and have two or more previous

felony convictions, regardless of the statute they

violated.

2007 TSPR at ___, 171 D.P.R. at ___, 2007 WL 2079844, at *7

(quotation marks omitted and second bracket in original).

8 For those wondering what happened to the Ramos Rivas

defendant: The Puerto Rico Supreme Court concluded that the

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Viewed against this backdrop, one thing is transparently

clear: Despite what the government suggests, Ramos Rivas did not

establish a general rule that if a defendant pleads guilty to an

Article 406 attempt/conspiracy violation following an Article 401

possession-with-intent-to-distribute charge, then it always means

he stands convicted of attempt/conspiracy to possess drugs with

distributive intent. Instead, Ramos Rivas is a narrow decision

holding that in the idiosyncratic circumstances of that case, one

had to look to Article 401 given the parties' apparent agreement

that Article 401 was the substantive offense underlying the Article

406 attempt/conspiracy conviction — and not some other article,

like Article 404. And that situation is worlds apart from

Martínez's. Which undercuts the government's Ramos Rivas-based

theory.

Still trying to convince us that "Martínez's Article 406

conviction was for the attempt/conspiracy to commit an Article 401



specific recidivist provision in Article 401 controlled over the

general recidivist provision in the Penal Code. 2007 TSPR at ___,

171 D.P.R. at ___, 2007 WL 2079844, at *7-8. And noting that a

"sentence imposed under" the Penal Code's recidivist provision "is

more onerous than a sentence imposed under the" CSA's recidivist

provision (because, for example, a sentence handed down under the

Penal Code's recidivist provision "does not qualify" a defendant

"to receive credits" for good conduct and the like), the high court

rejected the Commonwealth's no-harm-no-foul argument and remanded

for resentencing. See 2007 TSPR at ___, 171 D.P.R. at ___, 2007

WL 2079844, at *7-9.

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violation" — namely, possessing heroin with intent to distribute

— the government talks up two decisions by the Puerto Rico Circuit

Court of Appeals: Puerto Rico v. Ramírez Santiago, KLCE201701670,

2017 WL 6884475 (P.R. Cir. Nov. 29, 2017) (certified translation

provided by the government), and Puerto Rico v. Collazo Ortiz,

KLCE201700104, 2017 WL 1906428 (P.R. Cir. Mar. 30, 2017) (certified

translation provided by the government). In both cases, the

defendants stood accused of violating Article 401; the charges got

reclassified to Article 406 offenses, to which they pled guilty;

and the intermediate appellate court rejected their claims that

their sentences — 9 years in Ramírez Santiago, and 8 years in

Collazo Ortiz — were too stiff, noting how the time they received

did not exceed the 20-year fixed penalty in Article 401. As in

Ramos Rivas, none of the parties in Ramírez Santiago or Collazo

Ortiz disputed that Article 401 was the substantive offense

underlying the Article 406 attempt/conspiracy convictions. So

Ramírez Santiago and Collazo Ortiz are of no help to the

government.

And there is more that cuts against the government's

position. Responding to other questions at oral argument, the

government's lawyer also conceded that Martínez could have pled

guilty during the plea colloquy in the Puerto Rico case to an

Article 404 simple-possession offense, which could then serve as

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the substantive crime behind the Article 406 attempt/conspiracy

conviction — even if Article 404 was not mentioned in the judgment

of conviction. Given how Article 404 is not a "controlled

substance offense" for guidelines purposes, see Román-Huertas, 848

F.3d at 77, the government's concession is fatal to its defense of

the judge's work.

Perhaps sensing the difficulties in his position, the

government's attorney added that while the plea colloquy might

"clarify" what Martínez pled to, it also might not — we do not

know, because prosecutors did not provide the plea-colloquy

transcript at his federal-sentencing hearing. But this goes to

show only that the government has not met its burden of proving

exactly what the substantive crime undergirding Martínez's Article

406 conviction was.

That leaves one matter the government presents on appeal

— that we as a panel should use the Puerto Rico Supreme Court's

opinion in Rosario Cintrón to overrule language in our DávilaFélix opinion that Article 401 "criminalizes actions . . . not

commonly considered drug trafficking offenses, such as concealment

of a controlled substance." Assuming without deciding that the

government preserved the claim, given how the government-filed

papers leave up in the air what offense Martínez pled guilty to

attempting/conspiring to commit — simple possession under Article

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404 is a possibility, as the government's lawyer confirmed at oral

argument — we have no need to resolve the government's fallback

Article 401 argument today.

Final Words

To hammer the key point of our opinion home: The 3-year

suspended sentence Martínez got for his Puerto Rico drug conviction

is at least equally consistent with his having pled to

attempting/conspiring to commit simple drug possession (which,

don't forget, is not a "controlled substance offense" under the

guidelines). And prosecutors never introduced the Puerto Rico

plea colloquy to show that simple possession was not (in Article

406 lingo) "the object of the attempt or conspiracy." So ours is

a fact-specific holding, declaring that the government — in the

particular circumstances presented here — failed to shoulder its

burden of showing what Martínez pled to, which requires us to

vacate his sentence and remand for resentencing. We add a caveat,

however. The government had every incentive — and opportunity —

to present sufficient proof to support its requested "controlled

substance offense" enhancement. But it did not do so, as we have

seen. Thus the government may not present new evidence of

Martínez's prior conviction at resentencing. See, e.g., RománHuertas, 848 F.3d at 78.

VACATED AND REMANDED, WITH INSTRUCTIONS