United States v. Montalvo

United States Court of Appeals
for the Fifth Circuit

No. 19-11306

United States of America,

Plaintiff—Appellee,

versus

Bryan Montalvo,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-160-1

Before Davis, Stewart, and Oldham, Circuit Judges.
Per Curiam:*
Bryan Montalvo pleaded guilty to drug charges. The district court
denied a motion for downward departure and sentenced Montalvo to the
bottom of his Guideline range. Because that sentence was reasonable, we
affirm.

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 7, 2020

Lyle W. Cayce
Clerk
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I.
Montalvo pleaded guilty to possession with intent to distribute 50
grams or more of methamphetamine. The drug weight, his extensive criminal
history, two enhancements, and one reduction resulted in an advisory
Guideline range of 292 to 365 months of imprisonment. Hoping to reduce his
sentence, Montalvo agreed to provide inside information about his co-
conspirators to the Government. He participated in four “proffer
interviews” with federal agents to that end. In light of Montalvo’s assistance,
the Government filed a motion to reduce his sentence under U.S.S.G.
§ 5K1.1.
But the proffer interviews did not just reveal information about
Montalvo’s co-conspirators. They also revealed that Montalvo possessed
more than five times the amount of meth initially included in his Presentence
Report. So a probation officer filed an addendum to Montalvo’s PSR. The
addendum informed the court that Montalvo’s Guideline range would have
been “360 months to Life imprisonment” had he been held responsible for
all the meth he possessed.
The district court addressed the Government’s § 5K1.1 motion and
the PSR addendum at sentencing. It agreed that Montalvo had “provided
substantial assistance to the government.” But given Montalvo’s criminal
history and the fact that his “actual criminal conduct . . . was much more
serious than [he] was charged with,” the court declined to impose a sentence
“below the bottom of the advisory guideline range.” It sentenced Montalvo
to 292 months in prison after finding that length would “adequately and
appropriately address all the sentencing factors.” Montalvo timely appealed.
II.
Montalvo challenges his sentence as substantively unreasonable. He
preserved his challenge by requesting a sentence below the advisory
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sentencing range. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766
(2020). So we review for abuse of discretion. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Ochoa, 977 F.3d 354, 356 (5th Cir. 2020).
Within-Guidelines sentences like Montalvo’s “are presumptively reasonable
and are accorded great deference on review.” Ochoa, 977 F.3d at 357
(quotation omitted). This presumption “is rebutted only upon a showing that
the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Montalvo’s argument centers on the second of those avenues for
relief. Specifically, he contends the district court improperly based its
sentencing determination on details about Montalvo’s drug possession that
he revealed during his proffer interviews. Montalvo relies on § 1B1.8 of the
Sentencing Guidelines, which provides:
Where a defendant agrees to cooperate with the government by
providing information concerning unlawful activities of others,
and as part of that cooperation agreement the government
agrees that self-incriminating information provided pursuant
to the agreement will not be used against the defendant, then
such information shall not be used in determining the
applicable guideline range, except to the extent provided in the
agreement.
U.S.S.G. § 1B1.8(a).
The record shows that Montalvo did in fact “agree[] to cooperate with
the government” by providing helpful information about his co-conspirators.
And part of his written cooperation agreement included the Government’s
promise that “no self-incriminating statements made by defendant during
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the proffer interview(s) will be used against him in any criminal trial or
sentencing proceeding.” So far so good for Montalvo.
But that is not the end of the matter. Section 1B1.8 also states that
“[t]he provisions of subsection (a) shall not be applied to restrict the use of
information . . . in determining whether, or to what extent, a downward
departure from the guidelines is warranted pursuant to a government motion
under § 5K1.1.” Id. § 1B1.8(b)(5). And Montalvo “expressly
acknowledge[d]” in his proffer agreement “that any self-incriminating
information he might disclose pursuant to th[e] agreement may be used for
th[at] purpose[].”
Thus, the substantive reasonableness (or unreasonableness) of
Montalvo’s sentence turns on the way the district court used his inculpatory
proffer evidence. If the court used that evidence to “determin[e]
[Montalvo’s] applicable guideline range,” then it improperly applied
§ 1B1.8(a). But if the court used the evidence to “determin[e] whether . . . a
downward departure . . . [was] warranted . . . under § 5K1.1,” then it properly
applied § 1B1.8(b).
The sentencing transcript clearly shows the district court did the
latter. After hearing testimony about Montalvo’s cooperation, the court said
this:
Well, you have provided substantial assistance to the
government. Unfortunately, your criminal history is such and
the actual criminal conduct that resulted in us being here today
was much more serious than you were charged with[.] . . .
[H]ad you been . . . charged with your actual criminal conduct
as it was finally disclosed pursuant to interviews that were
made as a result of your agreement with the government[,]
[y]our guideline range would have been 360 months to life
imprisonment. Of course, I can’t take that into account in
determining what sentence to impose except to the extent I can take
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it into account in determining the ruling I should make on the motion
by the government for a sentence below the bottom of the advisory
guideline range.
The italicized portion is an unmistakable reference to the Government’s
§ 5K1.1 motion. And it leaves no doubt that the district court acted properly
under § 1B1.8(b).
Montalvo nevertheless claims that a “less than clear” tentative order
issued by the district court prior to the sentencing hearing “looms as a cloud
over the sentence.” In his view, the non-binding and superseded order
suggests the district court intended to use the proffer evidence to “form a
hypothetical, higher advisory sentencing range.” Montalvo asserts it was
only after the district court created that impermissible range that it
considered whether to depart downward in light of Montalvo’s assistance to
the Government.
We reject that argument for two reasons. First, the tentative order
does not say what Montalvo thinks it says. The order began with the district
court’s preliminary assessment that “all objections made by defendant to the
presentence report are without merit.” Then it identified two factors the
court planned to consider “in determining what, if any, reduction in
defendant’s sentence of imprisonment should be granted based on whatever
assistance defendant might have provided to the government.” One of those
factors was the PSR addendum’s observation that if Montalvo’s “true
offense conduct had been taken into account” as revealed in his proffer
interviews, “his advisory guideline imprisonment range would have been 360
months to life imprisonment.”
Montalvo interprets the order’s reference to a “reduction in [his]
sentence” to mean that the district court was thinking about more than just
the Government’s § 5K1.1 departure motion. But the only reason the district
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court gave for contemplating a reduction was “whatever assistance
[Montalvo] might have provided to the government.” And the only reason
that assistance could have mattered was because § 5K1.1 made it relevant.
See U.S.S.G. § 5K1.1 (authorizing district court to “depart from the
guidelines” upon a “motion of the government stating that the defendant has
provided substantial assistance”).
1
So the best reading of the tentative order
is that the district court was doing exactly what it was supposed to: using the
proffer evidence to “determin[e] whether . . . a downward departure from
the guidelines [was] warranted pursuant to a government motion under
§ 5K1.1.” Id. § 1B1.8(b)(5).
Second, even if the tentative order could be read to suggest that the
district court initially considered using the proffer evidence to amend
Montalvo’s Guideline range, the court’s subsequent comments at the
sentencing hearing show it changed its mind. Paraphrasing § 1B1.8, the court
said it could not “take [the proffer evidence] into account . . . except . . . in
determining the ruling [it] should make on the [§ 5K1.1] motion.” Montalvo
himself concedes the district court’s sentencing statement “does not square
with” his interpretation of the district court’s prior order. And the
sentencing statement is all that matters. See Cooks, 589 F.3d at 186 (holding
a defendant claiming substantive unreasonableness must show “that the
sentence . . . gives significant weight to an irrelevant or improper factor”
(emphasis added)).
Because the district court only considered Montalvo’s proffer
evidence for purposes of the Government’s § 5K1.1 motion, the court did not

1
18 U.S.C. § 3553(e) also authorizes downward departures “[u]pon motion of the
Government . . . so as to reflect a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.” But nothing in the record
indicates the Government filed a § 3553(e) motion in this case.
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give weight to an improper sentencing factor. Montalvo brings no additional
challenge to the reasonableness of his sentence.
2

AFFIRMED.

2
Montalvo separately challenges the district court’s discretionary decision to deny
the Government’s § 5K1.1 departure motion. But he concedes “this argument is
foreclosed” by circuit precedent and raises it only “to preserve it for further review.” See
United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013) (“We lack jurisdiction to review
the denial of a downward departure unless the district court’s denial resulted from a
mistaken belief that the Guidelines do not give it authority to depart.”); see also 18 U.S.C.
§ 3742(a)(3) (“A defendant may file a notice of appeal in the district court for review of an
otherwise final sentence if the sentence . . . is greater than the sentence specified in the
applicable guideline range . . . .” (emphasis added)).
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