United States of America v. Enrique Martinez-Expanosa

Albuquerque, New Mexico criminal defense lawyer represented the Defendant charged with illegal re-entry of an alien after removal.

On May 4, 2023, United States Border Patrol agents found Martinez-Espinoza

with a group of fifteen other individuals in Hidalgo County, New Mexico. He

admitted to being a Mexican citizen without legal authorization to enter or remain in

the United States. Agents confirmed Martinez-Espinoza's identity and determined he

was first removed or deported from the United States on June 30, 1992. Since then,

he has committed eleven additional reentry-related offenses, not including the instant

case. At the time he was detained by Border Control, Martinez-Espinoza was on

supervised release for a 2019 illegal reentry conviction.



On June 8, 2023, Martinez-Espinoza was charged with and pleaded guilty to

one count of reentry of a removed alien in violation of 8 U.S.C. § 1326(a). A

corresponding petition to revoke his supervised release was also filed. Martinez-

Espinoza entered into a written plea agreement pursuant to Fed. R. Crim.

P. 11(c)(1)(C), which included a two-level downward departure under U.S.S.G.

§ 5K3.1.1 The departure, however, would not be triggered unless his criminal history

category fell below VI. Based on his lengthy history of recidivism, the probation

office's Presentence Investigation Report ("PSR”) calculated his criminal history

category at VI and recommended the departure not apply.



At a change of plea hearing, the magistrate judge notified Martinez-Espinoza

that the district court could reject his agreement. If so, the court instructed that he

could withdraw his plea and move to trial; attempt to negotiate a new plea; or, at the

risk of receiving a more severe punishment, proceed with a guilty plea. Following the

plea process, the parties filed sentencing memoranda. Martinez-Espinoza requested

twenty-four months' imprisonment and for the sentence to run concurrently with his

supervised release punishment. The government requested a high-end sentence and

for at least half of the supervised release sentence to be consecutive to the underlying

reentry punishment. The district court set a hearing to consider both matters. The

hearing proceeded, in relevant part, as follows:



The Court: All right. Now, sir, you are also before the Court in two

matters. The first is 23-cr-836. The second is 23-cr-1016, and that is

also a petition to revoke conditions of supervision, conditions that were

imposed by Judge Collins, Senior Judge Collins, in the District of

Arizona.



As to that matter, [Martinez-Espinoza's Counsel], has Mr. Martinez

admitted that violation?



Martinez-Espinoza's Counsel: He has not, Your Honor.



The Court: Okay. Now, similar to the earlier case, the facts alleged in

the petition are the same as the facts that Mr. Martinez admitted when

he pled guilty to reentry. For that reason, is there a need to go through

the colloquy on the petition?



Martinez-Espinoza's Counsel: No, there is not, Your Honor.



The Court: So, can we go straight to sentencing?



Martinez-Espinoza's Counsel: Yes, Your Honor.



The Court: All right. Mr. Martinez-Espinoza, did you understand what I

just discussed with [your counsel]?



Martinez-Espinoza: Yes, sir.



The Court: Do you agree with this?



Martinez-Espinoza: Yes, sir.



After addressing revocation, the district court proceeded by confirming the

PSR's guidelines calculation. Martinez-Espinoza did not object when the district

court concluded his offense level was ten and his criminal history category was VI.



The district court noted that this criminal history category would disqualify him from

receiving the two-level downward departure offered under § 5K3.1. The hearing

continued:



The Court: Therefore, what I'm inclined to do is reject the plea

agreement, if it all is still in effect, finding that there's no benefit to

Mr. Martinez with that plea agreement. What's your position on that?

Martinez-Espinoza's Counsel: I think that would be appropriate, Your

Honor.



The Court: Okay. Do you agree with that, [government's counsel]?

Government's Counsel: Yes, Your Honor.



The Court: Okay. In doing that, Mr. Martinez, what I have done is I've

rejected the plea agreement that you agreed to have, but you receive no

benefit from it. Instead, you have waived your right to appeal the final

sentence of the Court with that plea agreement. But having rejected it,

I'm now giving you that right to appeal the sentence back. So you can

do that if you wish to do that. Do you have any questions?

Martinez-Espinoza: No, sir.



* * *



Fed. R. Crim. P. 11(c)(1)(C) provides a process for negotiated plea bargains in

which the government may, inter alia, "agree . . . that a particular provision of the

Sentencing Guidelines” applies. As noted in Part II above, the parties entered into

such an agreement, but the district court rejected it after determining Martinez-

Espinoza's criminal history prevented him from receiving the benefit of the bargain.

See United States v. Hurst, 94 F.4th 993, 1002 (10th Cir. 2024) (noting district

courts' general authority to reject plea agreements). Following a plea rejection, a

court must advise the defendant that it is not required to follow the plea agreement

and, as a result, the defendant may either withdraw the plea or proceed with a guilty

plea at the risk of receiving a higher sentence. Fed. R. Crim. P. 11(c)(5)(B)–(C); see,

e.g., United States v. Kearn, 90 F.4th 1301, 1307 (10th Cir. 2024). Here, all parties

agree the district court plainly erred by not informing Martinez-Espinoza of these

choices as outlined in Rule 11(c)(5). See United States v. Fuentes, 341 F.3d 1216,

1220 (10th Cir. 2003); see also United States v. Sandoval-Enrique, 870 F.3d 1207,

1212 n.5 (10th Cir. 2017); United States v. Rakes, 510 F.3d 1280, 1283 (10th Cir.

2007).

After hearing argument from the parties, the district court credited Martinez-

Espinoza with admitting to his supervised release violation and sentenced him to

forty-one months’ imprisonment for both offenses.



Affirmed on appeal.



See: Tenth Circuit 23-2139 and 23-2140