USA v. Heriberto Batista Montijo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13666
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERIBERTO BATISTA MONTIJO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:21-cr-00075-SPC-NPM-1
____________________
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2 Opinion of the Court 22-13666
Before BRANCH, L AGOA, and BRASHER , Circuit Judges.
PER CURIAM:
Heriberto Batista Montijo appeals his total sentence of 600
months’ imprisonment imposed after he pleaded guilty to two
counts of production of child pornography and one count of
possession of child pornography. He argues that the district court
engaged in impermissible double counting when it imposed a five-
level guidelines enhancement under both U.S.S.G. § 2G2.2(b)(5)1
and § 4B1.5(b)(1).2 After review, we affirm.
I. Background
In 2021, a grand jury indicted Batista Montijo on two counts
of production of child pornography, in violation of 18 U.S.C.
§ 2251(a) and (e) (Counts 1 and 2), and one count of possession of
child pornography, in violation of § 2252(a)(4)(B) and (b)(2) (Count
1 Section 2G2.2(b)(5) instructs the district court to increase the guidelines level
by five levels “[i]f the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor.”
2 Section 4B1.5 provides that
[i]n any case in which the defendant’s instant offense of
conviction is a covered sex crime, neither § 4B1.1 nor
subsection (a) of this guideline applies, and the defendant
engaged in a pattern of activity involving prohibited sexual
conduct: . . . [t]he offense level shall be 5 plus the offense level
determined under Chapters Two and Three.
U.S.S.G. § 4B1.5(b)(1).
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22-13666 Opinion of the Court 3
3). Batista Montijo entered an open plea of guilty to all three
counts.
Prior to sentencing, the United States Probation Office
prepared a presentence investigation report (“PSI”). As relevant to
this appeal, the probation office imposed a five-level guidelines
enhancement under U.S.S.G. § 2G2.2(b)(5) because Batista Montijo
“engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor.” The probation office then assessed
another five-level guidelines enhancement under § 4B1.5(b)(1)
because the offense was a covered sex crime, neither §4B1.1 nor
§ 4B1.5(a) applied, and Batista Montijo engaged in a repeated
“pattern of activity involving prohibited sexual conduct” by
engaging in repeated sexual activity with minors E.H. and I.S.
Batista Montijo’s total offense level after consideration of all
applicable guidelines enhancements and a three-point reduction for
acceptance of responsibility was 51. However, under the
guidelines an offense level of more than 43 is treated as an offense
level of 43 because 43 is the maximum offense level under the
guidelines.3 An offense level of 43 with Batista Montijo’s criminal
history category of I resulted in an advisory guidelines range of 960
months’ imprisonment, which was also the statutory maximum for
all counts if the counts were imposed consecutively.4
3 See U.S.S.G. Ch. 5, Part A (cmt. 2).
4 Batista Montijo’s base offense level of 43 and his criminal history category of
I resulted in a guidelines range of life under the sentencing table. However,
where, as here, “the statutorily authorized maximum sentence is less than the
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4 Opinion of the Court 22-13666
Batista Montijo objected to the application of the five-level
enhancement under § 2G2.2(b)(5) and the five-level enhancement
under § 4B1.5(b)(1) as improper “double counting,” arguing that
they were effectively the same enhancement and accounted for the
same conduct. He acknowledged that he did not have any case law
to support his position.
The district court overruled Batista Montijo’s objection,
explaining that § 2G2.2 was an enhancement for possession of child
pornography offenses, while § 4B1.5 was an enhancement
designed to address repeat and dangerous sex offenders. Thus, the
court concluded that there was no impermissible double counting
because
[a]lthough both enhancement[s] consider a
defendant’s pattern of prohibited sexual conduct,
they concern conceptually separate notions. So
Sections 2G2.2(b)(5) focuses on the substantive
offense of possessing child pornography offenses and
hones in on the defendants who directly abuse
minors, whereas, 4B1.5(b) focuses on a defendant’s
history, risk to the community and deterrence and
adds levels for those defendants who are repeat and
dangerous sex offenders against minors.
minimum of the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.” U.S.S.G. §§ 5G1.1(a),
5G1.2(b) cmt. (n.3(B)), 5G1.2(d).
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22-13666 Opinion of the Court 5
The court then sentenced Batista Montijo to a below-guidelines
total sentence of 600 months’ imprisonment to be followed by a
lifetime of supervised release. This appeal followed.
II. Discussion
Batista Montijo argues that increasing his offense level five
levels under both §§ 2G2.2(b)(5) and 4B1.5(b)(1) constituted
impermissible double counting for the same harm.
“We review de novo a claim of double counting.” United
States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006). Batista
Montijo’s claim is foreclosed by binding precedent. As we
explained in United States v. Rogers,
[i]mpermissible double counting occurs only when
one part of the Guidelines is applied to increase a
defendant’s punishment on account of a kind of
harm that has already been fully accounted for by
application of another part of the Guidelines.
Double counting is permitted, however, if the
Sentencing Commission intended that result and
each guideline section in question concerns
conceptually separate notions relating to sentencing.
We presume that the Sentencing Commission
intended separate guidelines sections to apply
cumulatively, unless specifically directed otherwise.
Section 4B1.5(b)(1) provides that:
In any case in which the defendant’s instant
offense of conviction is a covered sex crime
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6 Opinion of the Court 22-13666
. . . and the defendant engaged in a pattern of
activity involving prohibited sexual conduct:
(1) The offense level shall be 5 plus the
offense level determined under Chapters
Two and Three.
U.S.S.G. § 4B1.5(b)(1) (emphasis added). Thus, the
plain language of the guidelines establishes that the
Sentencing Commission intended for the
enhancements provided for in Chapter 4 to apply
cumulatively to any other enhancements from
Chapters 2 and 3. Accordingly, the application of
U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5 is not impermissible
double counting . . . .
989 F.3d 1255, 1263 (11th Cir. 2021) (quotations and internal
citations omitted).
Batista Montijo’s contention that Rogers is distinguishable
because it was decided on plain error review is unpersuasive. Our
holding in Rogers was premised on the conclusion that there was
no error, much less plain error, because the enhancements in
U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5 were intended to apply
cumulatively and do not constitute impermissible double
counting. That holding applies equally here even though Batista
Montijo’s claim is subject to de novo review.
Moreover, even assuming arguendo that there was error,
Batista Montijo is not entitled to relief because any error was
harmless. Even if Batista Montijo was correct and he should have
received only one five-level enhancement, his offense level would
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22-13666 Opinion of the Court 7
have been 46, which still would have been treated as a 43 under the
guidelines. See U.S.S.G. Ch. 5, Pt. A (cmt. n.2). Thus, any error
was harmless. See United States v. Sanchez, 30 F.4th 1063, 1076 (11th
Cir.), cert. denied 143 S. Ct. 227 (2022) (holding that any error in
applying an enhancement was harmless because “the countable
offense level would remain the same: 43”); United States v. Sarras,
575 F.3d 1191, 1220 n.39 (11th Cir. 2009) (explaining that any
alleged error in applying the enhancement in question was
harmless because the defendant’s “total adjusted offense level
would have been 46, which the district court still would have been
obligated to treat as 43”). Accordingly, we affirm.
AFFIRMED.
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