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United States v. Martinez

United States Court of Appeals, Tenth Circuit

June 7, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
EMILIANO FRANCISCO MARTINEZ, Defendant-Appellant.

         Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:14-CR-00274-ABJ-1)

          Grant Russell Smith, Research & Writing Specialist, Office of the Federal Public Defender, Cheyenne, Wyoming (Virginia L. Grady, Federal Public Defender, and Veronica S. Rossman, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, with him on the briefs), for Defendant-Appellant.

          Eric J. Heimann, Assistant United States Attorney, Office of the United States Attorney, Cheyenne, Wyoming (Christopher A. Crofts, United States Attorney, Office of the United States Attorney, Cheyenne, Wyoming, with him on the brief), for Plaintiff-Appellee.

          Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.

          PHILLIPS, Circuit Judge.

         Emiliano Martinez pleaded guilty to possessing an unregistered, short-barrel shotgun in violation of federal law. 26 U.S.C. §§ 5841, 5845(a), (d), 5861(d), and 5871. Under his plea agreement, Martinez reserved the right to appeal his sentence if the district court determined that his total offense level was greater than 23 under the 2014 United States Sentencing Guidelines. The district court calculated his total offense level as 27 after applying a four-level enhancement for using or possessing a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Key to this enhancement was the district court's finding that Martinez had possessed a firearm in connection with another felony offense-a burglary of the home from which the shotgun Martinez later possessed was stolen.

         On appeal, Martinez contends that the district court clearly erred at sentencing when it considered the hearsay statements of Eduardo Hernandez, who, in a police interview, had admitted to committing the burglary with Martinez. Martinez argues that Hernandez's hearsay statements lacked sufficient indicia of reliability to support their probable accuracy. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         BACKGROUND

         A. Palomo Burglary

         On July 14, 2014, Arlo Palomo's home in Torrington, Wyoming was burglarized. The burglary was extensive, lasting several hours. A burglar even took time to eat a bowl of cereal. Among other items stolen was a Remington 870 12-gauge shotgun. Mr. Palomo told police that his ex-wife, June Palomo, had bought the shotgun at a Walmart in Scottsbluff, Nebraska. Inside the Palomo home, police found a fingerprint left by Eduardo Hernandez.

         B. Discovery of a Short-Barrel Shotgun

         On July 23, 2014, nine days after the burglary, agents from the Wyoming Division of Criminal Investigation (DCI) and the U.S. Drug Enforcement Administration executed a search warrant-one unrelated to the Palomo burglary- on the car of Martinez's girlfriend, Amanda Dowers. In Dowers's car trunk, the agents found and seized a Remington 870 12-gauge shotgun with a 17-inch barrel.[1] A witness later told DCI that the shotgun belonged to Martinez.

         Sometime after the agents executed the search warrant, U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agents Steve McFarland and Matthew Wright took possession of the shotgun and began investigating Martinez. The agents ran a trace on the shotgun's serial number and learned that June Palomo had bought the shotgun from a Walmart in Scottsbluff, Nebraska. Although this was consistent with Arlo Palomo's statements to Torrington police after the burglary, the record doesn't say whether Torrington police had advised the ATF agents about the Palomo burglary before the ATF agents ran the trace.

         C. Interview with Martinez

         On September 26, 2014, two months after officers seized Martinez's short-barrel shotgun, Agents McFarland and Wright interviewed Martinez in Torrington. During the non-custodial interview, Martinez said that he obtained the shotgun from an unidentified white male in a field "a couple months" before Dowers's arrest (so by his account he would have obtained it sometime near late May 2014). R. vol. 1 at 11. Martinez also told Agents McFarland and Wright that the barrel was already cut down when he obtained the shotgun and that he had put the shotgun in Dowers's car trunk the day that she was arrested. Further, Martinez said that he had previously buried the shotgun in the ground "because there was no need for [him] to be messing with it unless he needed it; and he would leave it buried until the appropriate time." Id. (alteration in original) (quotation marks omitted).

         D. ...


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