United States v. Gilberto Montas ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 19, 2010
No. 09-11788 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 08-00271-CR-T-27-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO MONTAS,
a.k.a. Gilberto Montes,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 19, 2010)
Before EDMONDSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Gilbert Montas appeals his 78-month sentence for conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B).
After review, we affirm.
I. BACKGROUND
Montas pled guilty on October 28, 2008. The Presentence Investigation
Report (“PSI”) recommended an advisory guidelines range of 63 to 78 months’
imprisonment, based on a total offense level of 26 and a criminal history category
of I. The PSI stated, inter alia, that Montas should not receive an offense level
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, because
Montas was arrested for a new felony offense on March 7, 2009.
Montas objected, arguing that he should receive a two-level reduction for
acceptance of responsibility because he was innocent of the new charge. In an
addendum to the PSI, the probation officer responded that she had reviewed the
arrest affidavit and spoken with jail officials regarding the arrest. The addendum
indicated that there were two female witnesses to the alleged new offense and that
the government planned to present evidence about that alleged offense at the
sentencing hearing. The addendum advised that, if Montas testified at the
sentencing hearing, his testimony needed to be truthful or he risked a two-level
increase in his federal offense level, pursuant to U.S.S.G. § 3C1.1, for obstruction
of justice.
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At the sentencing hearing, the government presented several witnesses who
testified about an incident that occurred in the visitation center at the Pinellas
County Jail, where Montas was housed. Catherine Stroud testified that on March
7, 2009, she, her mother and her 14-year-old sister, Michelle Schuette, were
visiting her brother at the jail when an inmate (whom she identified as Montas)
called her sister over to the phone in his booth. Stroud told her sister to ignore
him. Then, Montas “went off to the side and started to masturbate in front of the
camera.” Susan Kresin, a detention deputy at the visitation center, testified that the
mother of a young girl approached her and said that she wanted to press charges
against an inmate (later identified as Montas with the use of jail photographs)
because he had exposed himself.
Deputy Jeffrey Martin, who was called to the jail to investigate, testified that
Michelle Schuette and her sister both told him that Montas had exposed himself
while Montas was in a visitation booth next to where the girls were sitting. The
girls indicated that Montas removed his penis from his pants and began
masturbating. After advising Montas of his Miranda rights, Deputy Martin
discussed the allegations with Montas. Initially, Montas smiled and “shook” his
head in an affirmative manner. But, when Martin stated that the girl was 14 years
old, Montas stopped, said it was not him and explained that he thought Martin was
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referring to a conversation Montas had just had with his wife about sex.
At the same sentencing hearing, Montas testified under oath and denied
masturbating on that day or telling Deputy Martin that he had done so. Montas
said he spoke little English and that he never intended to confess to Martin that he
had done anything other than talk to his wife about sex.
In rebuttal, the government called Michelle Schuette. Schuette testified that
Montas “expose[d] himself to her” while she was at the jail with her mother and
sister. Schuette said that Montas pulled his penis out of his pants and masturbated.
Schuette was shown pictures of two men who were in the booth around the same
time, and she thought both looked like the man who exposed himself to her.
However, Schuette stated that she now was sure Montas was the man she saw
masturbating.
At the close of the evidence, Montas conceded that, under binding precedent,
the district court had the discretion to deny him the acceptance of responsibility
reduction for unrelated criminal conduct, but asked the court not to do so. Montas
argued that the government had not proved by a preponderance of the evidence that
Montas was the inmate who had engaged in the illegal conduct.
The district court found that the testimony of Catherine Stroud, Michelle
Schuette and Deputy Martin was credible and that Montas in fact had done what he
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was accused of doing. The district court concluded that Montas was not entitled to
the acceptance of responsibility reduction, although the court stated that it would
still consider Montas’s acceptance under the 18 U.S.C. § 3553(a) factors. Further,
the district court found that Montas willfully had testified falsely at the sentencing
hearing and, therefore, imposed a two-level increase for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1. With an adjusted offense level of 28 and a criminal
history category of I, the district court calculated an advisory guidelines range of
78 to 97 months’ imprisonment.
Montas’s counsel asked the court to impose a 78-month sentence in light of
the fact that Montas: (1) had pled guilty; (2) would probably be deported to the
Dominican Republic; (3) had a wife and children in the United States; and (4)
recently had been the victim of a home invasion robbery during which he was shot
in the stomach. Montas also personally addressed the district court and again
denied that he had engaged in the sexual exposure at the jail.
The district court stated that it had considered; (1) the 3553(a) factors; (2)
Montas’s background and characteristics in particular; (3) that Montas had
accepted responsibility for his federal charge; and (4) Montas was subject to
deportation, which was likely to occur. Noting that “[t]he sentence should promote
respect for the law, deter others and protect the public,” the district court stated that
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the obstruction of justice enhancement and the loss of the acceptance of
responsibility reduction were “unfortunate,” but were “consequences of acts this
defendant has engaged in.” The district court imposed a 78-month sentence.
Montas filed this appeal challenging his sentence.
II. DISCUSSION
A. Acceptance of Responsibility
Montas first challenges the district court’s denial of an offense level
reduction for acceptance of responsibility.1 A defendant is entitled to a two-level
reduction in his offense level if he “clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). The defendant bears the
burden to show he is entitled to an acceptance of responsibility reduction. United
States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997). Although a guilty plea
“will constitute significant evidence of acceptance of responsibility,” it can be
“outweighed by conduct of the defendant that is inconsistent with such acceptance
of responsibility.” U.S.S.G. § 3E1.1 cmt. n.3. A district court may consider
subsequent criminal conduct that is unrelated to the offense of conviction in
1
We review a district court’s factual findings concerning acceptance of responsibility for
clear error. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). “A district court’s
determination that a defendant is not entitled to acceptance of responsibility will not be set aside
unless the facts in the record clearly establish that a defendant has accepted personal
responsibility.” United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
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deciding whether to give a reduction for acceptance of responsibility. United
States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994) (upholding district court’s denial
of acceptance of responsibility reduction based on defendant’s subsequent
marijuana use unrelated to his conviction for making false statements to the
government).
Here, the district court denied Montas a two-level reduction for acceptance
of responsibility because Montas engaged in further criminal conduct by exposing
himself to a minor at the Pinellas County Jail visitation center. Under our
precedent, the district court was authorized to consider this criminal conduct even
though it is unrelated to Montas’s offense of conviction. We find unpersuasive
Montas’s argument that his subsequent criminal conduct should not count against
him because it was sexual in nature and reflected “a sexually troubled individual”
without the requisite mental state. Montas has not shown clear error in the district
court’s decision to deny the acceptance of responsibility reduction.
B. Obstruction of Justice
Montas next challenges the district court’s obstruction-of-justice
enhancement.2 Under U.S.S.G. § 3C1.1, a defendant’s offense level is increased
2
We review for clear error the district court's findings of fact necessary for an obstruction
of justice enhancement based upon perjury, giving great deference to the credibility
determinations of the district court. United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002).
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by two levels if the defendant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction” and “the
obstructive conduct related to” the offense of conviction, relevant conduct or a
closely related offense. U.S.S.G. § 3C1.1. The § 3C1.1 enhancement applies if a
defendant commits perjury or provides materially false information to a judge or
magistrate. U.S.S.G. § 3C1.1 cmt. n.4(b), (f). For purposes of applying this
enhancement, perjury is defined as “false testimony concerning a material matter
with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” United States v. Bradberry, 466 F.3d
1249, 1254 (11th Cir. 2006) (quotation marks omitted).
The district court did not clearly err in finding that Montas perjured himself
at the sentencing hearing. Although Montas testified that he did not engage in any
act of sexual misconduct while at the Pinellas County Jail, the district court
credited the contradictory testimony from two eyewitnesses and concluded that
Montas’s testimony was false. We defer to the district court’s credibility findings.
See Singh, 291 F.3d at 763.
Further, Montas’s perjured testimony was material to the issues being
determined by the sentencing judge, that is, the calculation of Montas’s advisory
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guidelines range and, more specifically, whether Montas should be given an
acceptance of responsibility reduction. And, in light of the facts that Montas knew
his testimony at the hearing was under oath and that his testimony directly
contradicted the testimony of two eye-witnesses, the district court did not clearly
err in finding that Montas’s presentation of the material false testimony was
deliberate, rather than the result of mistake, confusion or faulty memory.
Accordingly, the district court did not err in applying the two-level obstruction of
justice enhancement.
C. Procedural Reasonableness
We review the reasonableness of a sentence for abuse of discretion using a
two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
We look first at whether the district court committed any significant procedural
error, such as improperly calculating the guidelines range, failing to consider the §
3553(a) factors or failing to adequately explain the chosen sentence. Id.3 If there
is no procedural error, we look at whether the sentence is substantively reasonable
3
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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under the totality of the circumstances. Id. The party challenging the sentence
bears the burden to show it is unreasonable. United States v. Thomas, 446 F.3d
1348, 1351 (11th Cir. 2006).
Montas argues that his sentence is procedurally unreasonable because the
district court did not consider or mention the § 3553(a) factors when it imposed the
sentence.4 The district court need not “state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Rather, the
district court “should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
legal decision making authority. Rita v. United States, 551 U.S. 338, 356, 127 S.
Ct. 2456, 2468 (2007).
Our review of the record indicates that the district court explicitly considered
the § 3553(a) factors. The district court stated that it had considered the § 3553(a)
factors and also specifically discussed several of them, including Montas’s history
and characteristics. The district court noted that Montas had accepted
responsibility by pleading guilty and was subject to deportation. The district court
also noted that the sentence needed to promote respect for the law, deter others and
4
Montas does not argue that his 78-month sentence is substantively unreasonable.
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protect the public, all § 3553(a) factors. Montas has not shown any procedural
error in his sentence.
AFFIRMED.
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