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U.S. v. Martinez

Count Three Conviction's Vacatur Under 'Davis' Reduces Sentence by 10 Years

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MEMORANDUM DECISION & ORDER On September 26, 2003, defendant Johnny Martinez was convicted after a jury trial of (1) conspiracy to commit murder-for-hire in violation of 18 U.S.C. §1958 (“Count One”) and (2) use of a firearm in connection with a crime of violence (specifically, the conspiracy charged in Count One), in violation of 18 U.S.C. §924(c) (“Count Three”). Dkt. No. 86; Presentence Investigation Report (“PSR”) at 1. He was acquitted of murder-for-hire (“Count Two”), which also alleged a violation of 18 U.S.C. §1958. Dkt. No. 86; PSR at 1. On January 24, 2005, Martinez was sentenced to a term of life imprisonment on Count One, followed by a consecutive term of imprisonment of ten years on Count Three. Sentencing Transcript (“Sent’g Tr.”) at 16. Martinez, pro se, now makes the following post-judgment motions: motion to reduce sentence, Dkt. No. 190; motions to vacate, set aside, or correct sentence, Dkt. Nos. 207, 209; motion for clarification of sentence, Dkt. No. 222; motion for compassionate release, Dkt. Nos. 223, 239; and motion for appointment of counsel, Dkt. No. 233. For the reasons set forth below, Martinez’s motion to vacate, set aside, or correct his sentence is GRANTED IN PART AND DENIED IN PART and the rest of his motions are DENIED. BACKGROUND In May 1998, a drug-distribution organization hired Martinez and two other individuals to kill Johan Pena-Perez and Nilton Duran, two men who had allegedly stolen heroin and cash from the organization. PSR

17-18. On May 26, 1998, Martinez and the other gunmen fired at the victims while they sat in their car at a traffic light, killing the first victim in the driver’s seat and wounding the second victim in the passenger seat. Id.

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