United States of America v. Juan Montas, also known as Juan Miguel Montas, also known as Juan Montas Hilario,…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-1851
UNITED STATES OF AMERICA
v.
JUAN MONTAS, also known as Juan Miguel Montas,
also known as Juan Montas Hilario, also known as Juan
Hilario,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 3:23-cr-00507-001)
District Judge: Honorable Zahid N. Quraishi
Submitted Under Third Circuit L.A.R. 34.1(a)
on June 10, 2025
Before: KRAUSE, PORTER, and AMBRO, Circuit Judges
(Opinion filed July 30, 2025)

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Timothy M. Shepherd
Office of Federal Public Defender
22 S Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609
Counsel for Appellant
Mark E. Coyne
Richard J. Ramsay
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
This case presents a single issue: whether the District
Court violated Federal Rule of Criminal Procedure 32 by
relying on information at sentencing without giving prior
notice to the defendant, Juan Montas. As he concedes, we
review the issue for plain error because he did not raise this
objection before the District Court. United States v. Olano, 507
U.S. 725, 732 (1993). Montas succeeds on the first two prongs
of plain-error review—the District Court erred, and it was

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clear. Id. at 732–34. His claim fails, however, at the third
prong: prejudice. He cannot show that, with notice, the
ultimate sentence would have been different. See United States
v. Reynoso, 254 F.3d 467, 470 (3d Cir. 2001). We therefore
affirm that sentence.
I
Montas is a citizen of the Dominican Republic and
entered the United States as a toddler in 1996. In 2017, he was
convicted and sentenced in the U.S. District Court for the
District of New Jersey for conspiracy to distribute heroin.
Deportation followed in 2020. However, Montas reentered
sometime before April 2023, when New Jersey State Police
arrested him for possession of a false driver’s license, drug
offenses, and money laundering. He pled guilty in the same
Court in 2023 to illegally reentering the United States. At his
2024 sentencing for that offense, the District Court repeatedly
referred to and relied on the Presentence Investigation Report
(PSR) and hearing transcript from Montas’s 2017 sentencing.
The District Judge began the sentencing by confirming
that counsel had the relevant materials, such as the 2024 PSR,
both sides’ sentencing submissions, letters of support, and
certificates that Montas had earned while incarcerated. But it
then told counsel:
In addition to that, I just want to let you know, I
reviewed Mr. Montas’ sentencing transcript from
2017 when he appeared before this Court before
Judge Cecchi in Newark. And I reviewed the
presentence report that was prepared at that time
in advance of that sentencing hearing. So I did

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review those documents as well[,] and I wanted
to make sure that you all know that I did review
that.
App. 52. The Court did not warn counsel before the hearing
that it would use those materials, nor did it provide them after
making this statement. As Montas acknowledges, his counsel
did not object. The District Judge then noted that Montas had
already received a 30-month sentence from this
Court, and that didn’t deter him from coming
back here illegally, that didn’t deter him from
having a fake passport from the Dominican
Republic, and it doesn’t convince me that — it’s
highly likely that regardless of what I do in my
sentence today, he’s going to come back again
because that’s what he’s been doing. In 2017, let
me tell you what he said to Judge Cecchi,
because I think this is important.
App. 59. The Judge then quoted a statement Montas had made
during his 2017 sentencing:
I would like to apologize to the Court and to my
family. And if I was to get another chance to be
in society, I would take the most advantage of it
and keep doing my best to be a better person and
be there for my family, and especially my kids.
Id. The Judge commented that Montas “didn’t do any of that.
That was a lie, right?” Id. The follow-up was a rhetorical
question: “[W]hy should I be convinced to give a downward
variance to somebody who continues to come here illegally[?]”

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App. 60. He also asked why Montas should get a lower
sentence for the current offense than the 2017 offense:
We gave him a 30-month sentence [in 2017], and
he thumbed his nose at this Court. Here he is
back again, and you’re asking me to give him
less time. Why would I do that? . . . [W]hy would
I give him less time than what he got in 2017
when he told this Court, and I’m sure everyone
believed him then, I’m not going to do this again,
just give me another chance, I will do right by
this Court, I will do right by my family, I will do
right by the United States. He didn’t do any of
that.
App. 60–61. The prosecutor, who argued for a Guideline
sentence of 18 to 24 months, responded by pointing to
Montas’s reentry plan for returning to the Dominican Republic.
That new plan was formulated with his family and newlywed
wife. The Judge suggested it was “not believable,” positing
that Montas’s “history demonstrates that he doesn’t have a plan
other than, look, I will do whatever the Judge says today, I will
come back and hopefully I won’t be caught next time. That’s
what I think his history demonstrates because that’s all he’s
done.” App. 62.
When the defense began its presentation by
emphasizing Montas’s prior trauma, the Judge noted that
“those were the same issues that have come before this Court
and others before[,] and at some point it doesn’t outweigh the
danger that he continues to cause by poisoning the
communities with these drugs.” App. 63–64. And when
defense counsel pointed out the stronger reentry plan, the

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Judge asked, “Why wasn’t this done before, the last time he
was deported?” App. 65. The Judge also opined that Montas’s
family’s plan was not reliable and assumed that they would
falsely claim they did not know he was in the country illegally.
In imposing the sentence, the District Judge relied on
the 2017 sentencing transcript, emphasizing that Montas was
“before this Court several years ago saying what [he’s] saying
now, except for a slight twist, that [he has] a plan.” App. 75.
When discussing the mitigation arguments raised by defense
counsel, the Judge noted:
[M]any of those issues were raised to this Court
in 2017. H[is] being a victim of a gunshot, his
substance abuse issues, childhood issues, all
were issues that were brought before this Court
in 2017. And to recognize those then and to rely
upon them now when [Montas] continue[s] to
commit the same crimes, I will tell you I believe
that those mitigating issues are significantly
outweighed.
Id. The Court did not believe Montas because he
made these statements to this Court before. . . . I
can’t pretend that I didn’t review your words in
2017 saying: I’m not going to do this again, and
here you are now. And you said those things then.
And you might have meant them even then. I’m
not even saying necessarily that you were lying
to the Court in 2017. What I’m telling you is that
regardless of whether you lied, maybe you even
believed your words to be truthful, I can’t count

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on them anymore. So I hope you’re right. But the
record that I have before me with these several
convictions for the very same crime, including
when you have been deported and prior to your
deportation, demonstrate to this Court that we
can’t rest on your words. That I can’t believe the
words you have [spoken].
App. 76.
The Judge pegged the 2024 sentence to the 2017
sentence: “I will tell you this, you’re not getting a lower
sentence than you got in 2017. There is nothing in this record
that would make me think that you somehow have earned a
lesser sentence now than you did in 2017 when you shouldn’t
be back here committing this crime again.” App. 78. He
sentenced Montas to 34 months’ imprisonment and explained
that he added a term of supervised release because he
“believe[d] [Montas was] coming back.” App. 78–79. He
timely appealed.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). To prevail on plain-error review, Montas
must show (1) an error occurred, (2) it was clear or obvious,
(3) it affected his substantial rights, and (4) it seriously affected
the fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 732–36.

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A
We “interpret[] Federal Rule of Criminal Procedure 32
to require pre-hearing disclosure of documents on which a
district court will rely at sentencing.” United States v. Smith,
751 F.3d 107, 117 n.7 (3d Cir. 2014). Our Court has held that
a district court violates Rule 32 when it fails to notify counsel
before sentencing of its reliance on the defendant’s state PSR,
United States v. Nappi, 243 F.3d 758, 762–63 (3d Cir. 2001),
or the transcript from a co-defendant’s federal trial, Reynoso,
254 F.3d at 472–73. “[B]efore a sentencing court may rely on
testimonial or other evidence from another proceeding, the
court must notify the defendant and the Government of its
intent to do so and must identify with particularity the evidence
upon which it expects to rely and for what purpose.” Id. at 474.
The notice requirement is not just meant to put the defendant
(who presumably remembers his past proceedings) on notice,
but also counsel. Nappi, 243 F.3d at 764 (“Rule [32] requires
that counsel for the defendant . . . be provided with a
meaningful opportunity to address the information at issue.”
(emphasis omitted)).
Nappi construed an earlier version of Rule 32(c)(1). Id.
at 762 n.2. Montas argues that it is still relevant precedent
because a substantively similar rule is now found in
Rule 32(i)(1)(B) and (C). Although Rule 32 continues “to
require pre-hearing disclosure of documents on which a district
court will rely at sentencing,” Smith, 751 F.3d at 117 n.7, this
Court has not yet determined whether this requirement is found
in Rule 32(i)(1)(B) or (C), see United States v. Ausburn, 502
F.3d 313, 322 n.14 (3d Cir. 2007) (explaining that the
“provisions of the Rule 32 cited in Nappi have since been
renumbered and reorganized, but the current Rule is

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substantively similar, for purposes of our discussion, to the
version analyzed by Nappi,” but not specifying a subsection of
Rule 32); United States v. Berger, 689 F.3d 297, 298, 301 (3d
Cir. 2012) (assuming without deciding that the relevant
requirement comes from Rule 32(i)(1)(C)). Our Court has
taken conflicting positions in nonprecedential opinions.
Compare, e.g., United States v. Pena, 407 F. App’x 589, 590
(3d Cir. 2011) (using (C)), with United States v. Basralian, 843
F. App’x 453, 457–58 (3d Cir. 2021) (using (B)); United States
v. Mark, 757 F. App’x 208, 212 (3d Cir. 2018) (using (B)).
Today, we rely on (C) rather than (B). The former
requires sentencing courts to “allow the parties’ attorneys to
comment on the probation officer’s determinations and other
matters relating to an appropriate sentence.” Fed. R. Crim. P.
32(i)(1)(C). This closely tracks the older version of Rule
32(c)(1) addressed by Nappi, which gave counsel the
“opportunity to comment on . . . matters relating to the
appropriate sentence.” 243 F.3d at 762 (quoting the version of
Rule 32(c)(1) in effect at the time of the decision) (omission in
original). Section (B), on the other hand, requires a sentencing
court to provide the parties a summary, either written or in
camera, of “information excluded from the presentence report
under Rule 32(d)(3) on which the court will rely in
sentencing.” Fed. R. Crim. P. 32(i)(1)(B). Rule 32(d)(3)
excludes from the PSR confidential or diagnostic information
or “any other information that, if disclosed, might result in
physical or other harm to the defendant or others.” Section (B)
therefore has a more limited scope that is not relevant here.
The logic of Nappi, Reynoso, and Rule 32(i)(1)(C)
applies here. The District Court relied on information from
another proceeding—the 2017 sentencing. Montas’s counsel

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for the 2024 sentencing was not present for that earlier
proceeding and therefore could not speak to it without advance
notice. By failing to give Montas and his counsel advance
notice of its reliance on the 2017 materials, the Court
contravened Rule 32(i)(1)(C)’s mandate to “allow the parties’
attorneys to comment on . . . matters relating to an appropriate
sentence.”1
Arguments to the contrary by the Government are
unpersuasive. It emphasizes that the 2024 PSR relied on the
2017 PSR. It cannot say the same about the 2017 sentencing
transcript. And even for the 2017 PSR, a citation by the
Probation Office does not suffice for notice. Plus, the 2024
PSR merely stated that information from the 2017 PSR had
been incorporated. If anything, that statement suggested that
all relevant information from the 2017 PSR had already been
included in the 2024 PSR, meaning counsel had no reason to
expect that the District Court would examine and rely on the
2017 PSR independently.
The Government also argues that Nappi (1) applies only
to information used to prove or disprove a fact relevant to the
sentencing, (2) requires that the defendant had no knowledge
that the Court had the information or would consider it, and (3)
mandates that the information be aggravating. This reading
1 In arguing that an error occurred, Montas also raised party-
presentation concerns. In his view, the Court “acted as an
additional advocate for the [G]overnment” rather than deciding
solely the issues the parties presented. Opening Br. 24. We
need not reach this contention because it was advanced only in
service of the argument that the Court violated Rule 32, not as
a separate issue on appeal.

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contradicts our Court’s statement that we “interpret[] Federal
Rule of Criminal Procedure 32 to require pre-hearing
disclosure of documents on which a district court will rely at
sentencing.” Smith, 751 F.3d at 117 n.7 (citing Nappi, 243 F.3d
at 764). The Government characterizes this portion of Smith
as unconsidered dicta. But even assuming that is true, the
Government mischaracterizes Nappi. The first proposition—
that the disclosure requirement applies only to information
used to prove or disprove a relevant fact—seems to come not
from Nappi but from an out-of-circuit case it cites, United
States v. Curran, 926 F.2d 59, 63 (1st Cir. 1991). Nappi cited
Curran in support of its notice-and-disclosure rule, not this
limitation. Nappi, 243 F.3d at 764. The second proposition,
that the defendant must have had no knowledge that the Court
had or would consider the information, adds the word “must”
to a quote from the factual summary in Nappi. Gov’t Br. 24
(citing Nappi, 243 F.3d at 766). And the third, that the
information must be aggravating, is not in Nappi at all. The
Government did not point us to other cases adopting that rule,
nor did we find any.
Even setting aside the mischaracterization of Nappi, the
Government seems to argue that the 2017 transcript is not
aggravating because Montas spoke for his own benefit at the
time. That is unpersuasive. Presumably the relevant
consideration would be whether it is aggravating for the 2024
sentencing, not the one in 2017. The Government also
emphasizes that both PSRs are from the same Court and
Probation Office and contends that Montas could have asked
Probation for the 2017 PSR before the 2024 sentencing. Those
assertions have no bearing on the District Court’s obligation to
notify counsel of the materials on which it plans to rely at
sentencing. Reynoso requires the Court to identify the

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information with particularity and an explanation of its
purposes. 254 F.3d at 474.
B
The Government follows up that because neither our
Court nor the Supreme Court has applied Rule 32 to a
defendant’s own prior federal sentencing transcript or PSR,
Montas’s claim fails at the second plain-error prong because
the error was neither clear nor obvious. We disagree. The rule
depends not on the specific documents at issue but on whether
the District Court gave notice of any document outside the
record on which it planned to rely. Nappi, 243 F.3d at 764
(applying Rule 32 to the defendant’s own PSR from state court
because it was a “matter relating to the appropriate sentence”
and “an additional document on which the Court intend[ed] to
rely at sentencing”); Reynoso, 254 F.3d at 474 (“[B]efore a
sentencing court may rely on testimonial or other evidence
from another proceeding, the court must notify the defendant
and the Government of its intent to do so and must identify
with particularity the evidence upon which it expects to rely
and for what purpose.”). The error here was clear under Nappi
and Reynoso.
C
A defendant succeeds on the third prong of plain-error
review if the error prejudiced him, meaning the outcome of the
proceeding would have been different but for the error. Nappi,
243 F.3d at 762, 770. Montas must establish that “the District
Court would have imposed a lesser sentence had defense
counsel been given the required notice.” Reynoso, 254 F.3d at
470. The inquiry focuses on what would have happened with

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proper notice to counsel, not what would have happened if the
Court had never relied on the outside materials. Id. On this
prong, Montas comes up short.2
He first argues that the District Court misinterpreted his
statement that he would “take the most advantage of” a second
chance and do his “best to be a better person” as a promise not
to commit more crimes. App. 59; Supp. App. 12. We are not
persuaded. Even if that were a misinterpretation, we cannot
conclude that the Court’s sentence would have been lower if it
understood that he was not promising to stop committing
crimes.
Montas next contends that, with notice, he could have
better explained why his family support improved between
2017 and 2024: at the time of the 2024 sentencing, he had
recently married. But the District Court considered that
information and found it unpersuasive. Notice would not have
changed the argument raised; counsel made this point even
without notice. Nor would it have changed the outcome
considering that the Court gave the recent marriage little
weight in its analysis.
Montas also asserts that the District Court misconstrued
his immigration history, appearing to believe he had illegally
reentered the United States more than once. He is right that it
described him as “somebody who continues to come here
illegally,” App. 60, and as committing “this crime every time
[he] come[s] back to the United States,” App. 74. Montas first
entered the United States as a minor and was previously
2 Because his claim fails at the third prong of plain-error review,
we need not reach the fourth.

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deported only once, making this his first illegal reentry. The
Court signaled that it understood this during parts of the
sentencing. Regardless whether it got this fact right, notice of
its reliance on the 2017 materials would not have resolved the
problem. The 2024 PSR, of which everyone indisputably had
notice, makes clear that this is Montas’s first illegal reentry.
Montas’s appellate counsel fails to explain how notice of the
2017 materials would have helped sentencing counsel respond
to the potential error, let alone how it would have changed the
sentence.
Montas raises several other prejudice arguments, but
they consider the wrong counterfactual. As explained above,
we ask whether the sentence would have changed if counsel
had notice of the Court’s reliance on the 2017 materials.
Several of Montas’s arguments seem to rely on a different
scenario, one in which the Court could not rely on the 2017
materials at all. These include its:
• discussing Montas’s reliability based on the 2017
transcript;
• pegging the 2024 sentence to the 2017 sentence based
in part on Montas’s statements at the 2017 hearing;
and
• giving little weight to the defense’s mitigation factors
because they were also raised in 2017.
The defense does not argue that notice would have changed the
Court’s sentence based on these points, nor does it argue that it
could have rebutted the Court’s conclusions about Montas’s
reliability or the mitigation factors. In short, his claim fails at
the third prong because he cannot demonstrate that “the

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District Court would have imposed a lesser sentence had
defense counsel been given the required notice.” Reynoso, 254
F.3d at 470.
* * *
By relying at Montas’s sentencing in 2024 on a PSR and
transcript from his 2017 federal sentencing, without advance
notice to him or his counsel of its reliance, the District Court
erred under Rule 32(i)(1)(C). Yet Montas cannot show that,
with notice, his sentence would have been different. On plain-
error review, his claim thus fails at the prejudice prong, and we
affirm his sentence.

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