01-4234 U.S. v. Martinez-Jimenez

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“Martinez-Jimenez argues that the court and/or the government were confused and that, as a result, it was unclear what was being waived. After reviewing the record, we find this argument unpersuasive. Further, Martinez-Jimenez can hardly claim ignorance on the part of himself or anyone else where, as here, he and the government submitted arguments concerning the very sentencing calculation issue for which he now seeks appellate review, and the probation officer prepared a supplemental report outlining and explaining the offense level computations of which all parties and the court were aware. Cf. United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000) (finding that where the defendant knew he had a right to object to the calculation of his criminal history, knew the contents of the presentencing report, and affirmatively decided not to object despite such knowledge, his right to appeal calculation issue was waived). Martinez-Jimenez has waived any challenge to the district court’s offense level calculation and appellate review is precluded.

“Even if we were to disregard the contents of the record and assume that Martinez-Jimenez’ relinquishment of his sentencing argument was unintentional, resulting in a forfeiture rather than a waiver, we still would not disturb the sentence imposed by the district court. The court’s allowance of an ‘aggravated felony’ enhancement for a crime that entailed the luring or enticement of a child into a vehicle for an unlawful purpose is simply not clear error when such deviant conduct by its nature involves a substantial risk that in the course of such offense, force may be used against the young victim. The eight level increase in Martinez-Jimenez’ offense level computation provides no grounds for reversal.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Bauer, J.