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Date: 10-08-2021

Case Style:

United States of America v. ELFIDO CHAVEZ-MARTINEZ

Case Number: 07-2000

Judge: Paul J. Kelly, Jr.

Court: UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:


Denver, CO - Criminal defense Lawyer Directory


Description:

Denver, CO - Criminal defense lawyer represented defendant with a
reentry of a deported alien previously convicted of an aggravated felony charge.



Following Mr. Chavez-Martinez’s guilty plea, a presentence investigation
report (PSR) was prepared. The PSR calculated the applicable Guideline
sentencing range to be twenty-seven to thirty-three months’ imprisonment. At the
sentencing hearing, Mr. Chavez-Martinez requested that the district court vary
from the bottom of the Guideline range and sentence him to twenty-one months’
imprisonment, which would have been equivalent to the sentence imposed had
Mr. Chavez-Martinez been sentenced after entering a plea pursuant to the fasttrack program. Mr. Chavez-Martinez’s counsel at the sentencing hearing, Mr.
Bustamante, claimed that Mr. Chavez-Martinez asked prior counsel to enter a
fast-track plea. For reasons unknown to Mr. Bustamante, the government refused
to grant fast-track and proceeded with an indictment. At sentencing, the district
court refused to grant Mr. Chavez-Martinez’s request for a variance.
We agree with Mr. Chavez-Martinez’s counsel that there exist no
potentially meritorious issues on appeal. First, there is no reason to believe that
Mr. Chavez-Martinez’s plea was anything but knowing and voluntary. See Brady
v. United States, 397 U.S. 742, 755-56 (1970). Next, the district court was not
permitted to take into account the availability of the fast-track program to other
Appellate Case: 07-2000 Document: 010136340 Date Filed: 09/20/2007 Page: 2
- 3 -
criminal defendants in fashioning a reasonable sentence under the 18 U.S.C. §
3553(a) factors, see United States v. Martinez-Trujillo, 468 F.3d 1266, 1269 (10th
Cir. 2006), and Mr. Chavez-Martinez has no enforceable right to participate in the
fast-track program. Finally, Mr. Chavez-Martinez did not lodge an objection to
any facts contained within the PSR, see Fed. R. Crim. P. 32(i)(3)(A) (allowing a
court at sentencing to “accept any undisputed portion of the presentence report as
a finding of fact”); his sentence fell at the low end of the presumptively
reasonable—and correctly calculated—Guideline range and no facts exist to rebut
the presumption, see Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007);
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006); and the sentence
imposed was adequately reasoned, see United States v. Chavez-Calderon, – F.3d
–, 2007 WL 2171363, at *2 (10th Cir. 2007).

Outcome: Accordingly, we DISMISS thisappeal and GRANT counsel’s motion to withdraw.

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