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PATRICK FISHER
Clerk
No. 04-8094
(District of Wyoming)
(D.C. No. 04-CR-69-J)
Defendant-Appellant.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Martinez asserts that had he been sentenced based solely on a guilty plea
to second degree murder, the applicable sentencing range would have been 121151 months.
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stipulated sentence in his Rule 11(c)(1)(C) plea agreement and was less than the
statutory maximum, it did not violate the law. 5 See United States v. Brown, 316
F.3d 1151, 1160 n.4 (10th Cir. 2003); United States v. Veri, 108 F.3d 1311, 1315
(10th Cir. 1997). Martinez also cannot challenge his sentence under United States
v. Booker, 125 S. Ct. 738 (2005), 6 because he admitted all relevant facts and
stipulated to the specific sentence he received. See United States v. Silva, No. 041522, 2005 WL 1581267, at *1 (10th Cir. July 7, 2005). Similarly, because
Martinezs sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement,
the district court did not apply the Sentencing Guidelines, let alone apply the
Guidelines incorrectly. See Fed. R. Crim. P. 11(c)(1)(C) (agreement is binding on
the court); Veri, 108 F.3d at 1313. The district courts application of the
provisions of the Rule 11(c)(1)(C) plea agreement resulted in a sentence that was
neither in violation of law nor an incorrect application of the sentencing
The statutory maximum penalty for second degree murder is life in prison.
18 U.S.C. 1111(b).
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Michael R. Murphy
Circuit Judge
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