UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51228 SA-98-CR-267-ALL

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v.

CARLOS MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas

December 13, 1999 Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellant Martinez pleaded guilty to obstructing commerce

by robbery and using a firearm during a crime of violence. On

appeal, he raises a sentencing issue, and preserves for future

appeal the contention that the Hobbs Act is unconstitutional when

applied to the commission of an individual, purely local robbery.

Finding no reversible error, we affirm.

From a Guidelines range that, after much initial

jockeying, would have yielded a sentence of 37-46 months on the

robbery count, the district court departed upward to impose a 60-

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 month sentence. When this was added to the mandatory 60-month

consecutive sentence for the firearm count, Martinez received a

sentence of 10 years’ imprisonment. He contends that the district

court erred in applying an upward departure based on U.S.S.G. §

5K2.17, which suggests an upward departure if the defendant

possesses “a high-capacity, semiautomatic firearm in connection

with a crime of violence. . .” The section also suggests that the

extent of any increase “should depend upon the degree to which the

nature of the weapon increased the likelihood of death or injury in

the circumstances of the particular case.” Appellant contends

that, although he used an AK-47 rifle during the offense, it was

not a “high-capacity, semiautomatic firearm” referenced in the

Guideline, and furthermore, his use of the weapon did not

significantly increase the risk of harm, as the Policy Statement to

that Guidelines requires. See U.S.S.G. App. C, Amend. 531.

Whether the AK-47 falls within this Guideline, it is

argued, may depend upon the size of the magazine it carried. If

the magazine had the capacity to hold more than 10 cartridges, it

would qualify, but if it had only a five cartridge capacity, it

would not. This factual issue is not settled in the record. No

case law further elaborates on the definition of a high-capacity,

semiautomatic firearm. The government’s brief seems to assume,

with common sense to back it up, that an AK-47 is, inherently, the

type of weapon contemplated by this Guideline.

Ultimately, however, this issue is not critical to

affirming the departure. The district court relied not only on

2 section 5K2.17, but also on the “multiple carjacking-type behavior”

that was involved in the defendant’s crime. Under the Guidelines,

a court may depart upward if it finds the existence of an

aggravating circumstance that was not adequately taken into

consideration by the Guidelines.

(b). This court

affirms an upward departure if the district court gives acceptable

reasons for departing, and the extent of the departure (not here

contested) is reasonable. United States v. Nevels,

(5th Cir. 1998), (cert. denied, ____ U.S. ____,

(1999). Finally, even if the district court erred or abused its

discretion in departing upward based upon section 5K2.17, a remand

will not be required if this court determines that the district

court would have imposed the same sentence without relying upon

this factor. Koon v. United States,

(1996); see

also Williams v. United States,

(1992).

The Koon/Williams rationale is fully dispositive here.

Martinez’s and his cohorts’ armed robbery of Renters Choice, Inc.,

an appliance and equipment rental business located in San Antonio,

was particularly egregious. The robbers terrorized the victims

while they stole the company cash, made one of the victims

partially disrobe, and systematically took business merchandise and

loaded it into several vehicles. Not only did the robbers take an

employee’s Hyundai, but they also stole one of the business’s

delivery trucks by appropriating the keys at gunpoint, to haul off

more merchandise. The district court was legitimately repelled by

this drawn-out, highly intimidating sequence of events, and the

3 court specifically focused on the multiple carjacking-type behavior

in awarding the upward departure.

Contrary to appellant’s argument, it seems obvious that

this behavior alone warranted the moderate, 13-month upward

departure. Martinez does not suggest that such a departure was

legally inappropriate, but only that “these facts do not constitute

the very threatening and personal form of car theft in a typical

carjacking offense.” We disagree. Because we are convinced that

the court was fully entitled to, and would have departed upward

based solely on the extreme circumstances of the offense, we do not

need to explore the status of the AK-47 alone.

The sentence and judgment of the district court are

AFFIRMED.

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