United States v. Montero ( 2023 )

Case: 21-30767 Document: 00516669459 Page: 1 Date Filed: 03/08/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 8, 2023
No. 21-30767 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Antonio Montero,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:18-CR-246-1
Before Clement, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Antonio Montero pled guilty to conspiracy to distribute and possess
with intent to distribute at least 500 grams of methamphetamine in violation
of 21 U.S.C. § 846. The district court sentenced Montero to the mandatory-
minimum term of 120 months of imprisonment, “with credit for time
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-30767
served,” 1 and imposed a five-year term of supervised release. After being
granted an out-of-time appeal, Montero filed a pro se notice of appeal. We
affirm.
Montero’s appointed counsel initially filed a motion to withdraw and
a brief in accordance with Anders v. California, 386 U.S. 738 (1967). But we
determined that the Anders brief did not adequately address three issues:
(1) whether Montero was eligible for a safety-valve reduction under 18
U.S.C. § 3553(f); (2) whether the district court was otherwise authorized to
sentence Montero below the statutory mandatory minimum; and (3) whether
there is any nonfrivolous issue for appeal regarding the district court’s failure
to advise Montero of the possible immigration consequences he faced if
convicted. We ordered counsel to file a supplemental Anders brief addressing
those issues or, alternatively, a brief on the merits addressing any
nonfrivolous issues that counsel deemed appropriate.
Montero’s counsel filed a merits brief analyzing the three issues
identified in our order. As to the issue regarding notice of the immigration
consequences of his conviction, Montero briefed the issue, but he concedes
that he cannot make the showing required for plain error. Thus, we address
the first two issues only.
First, we address Montero’s argument that he is entitled to a safety-
valve reduction under 18 U.S.C. § 3553(f). Because he raises this argument
for the first time on appeal, our review is for plain error only. See Puckett v.
United States, 556 U.S. 129, 135 (2009). But no matter the standard of review,
1
Montero was sentenced in January 2020. Montero indicated during sentencing
that he had been in federal custody since October 2018. Thus, the district court apparently
intended for Montero to receive over a year of credit for time served.
2
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No. 21-30767
Montero’s safety-valve argument is foreclosed by United States v. Palomares,
52 F.4th 640 (5th Cir. 2022).
Section 3553(f), the First Step Act’s “safety valve,” exempts certain
defendants convicted of controlled-substance offenses from mandatory-
minimum sentences. Specifically, a defendant who meets the criteria in
§ 3553(f)(2)–(5) is eligible for safety-valve relief so long as he
does not have—
(A) more than 4 criminal history points, excluding any
criminal history points resulting from a 1-point offense,
as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the
sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under
the sentencing guidelines[.]
18 U.S.C. § 3553(f)(1).
Montero admits that his criminal history runs afoul of § 3553(f)(1)(B).
But, focusing on the “and” in the statute, he contends that “a judge [must]
find the defendant has violated all conditions [in § 3553(f)(1)] in order to be
ineligible for the sentence reduction.” Because he hurdles the requirements
of § 3553(f)(1)(A) and (f)(1)(C), he reasons that he remains eligible for safety-
valve relief. But Palomares, which was pending when Montero appealed, has
foreclosed his argument. In Palomares, we held that “criminal defendants
[are] ineligible for safety valve relief if they run afoul of any one of [the
§ 3553(f)(1)] requirements.” 52 F.4th at 647 (emphasis added). Because
Montero admits that his criminal history runs afoul of 18 U.S.C.
§ 3553(f)(1)(B), his safety-valve argument thus fails.
Next, Montero asserts that though the district court intended to
reduce his sentence by the number of days he served in federal custody prior
to sentencing, the sentence imposed fails to do so because the district court’s
3
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No. 21-30767
direction that he be given credit for time served is not binding on the Bureau
of Prisons (BOP). 2 As a result, Montero contends, he has not received any
credit for time served from the BOP. He thus requests a limited remand for
the district court to clarify whether it would impose the same sentence
knowing it lacks authority to order credit for time served. Again, because
Montero did not raise this issue below, our review is for plain error. See
Puckett, 556 U.S. at 135.
Under certain conditions, a defendant is entitled to credit toward his
federal sentence for time spent in official detention prior to the date of his
federal sentence. 18 U.S.C. § 3585. However, the sentencing court is not
authorized to order credit for time served. United States v. Taylor, 973 F.3d
414, 418–19 (5th Cir. 2020). Instead, only the Attorney General, through the
BOP, is authorized to order credit for time served and does so “as an
administrative matter when imprisoning the defendant.” United States v.
Wilson, 503 U.S. 329, 335 (1992). 3 The district court can nevertheless fashion
a sentence that takes into consideration the time served by a defendant
because sentencing courts “retain residual authority to reduce defendants’
sentences based on previous time served related to their offenses.” United
States v. Hankton, 875 F.3d 786, 792 (5th Cir. 2017); see U.S.S.G. § 5G1.3(b);
U.S.S.G. § 5K2.23. Thus, the proper way for the district court to take into
2
The Government agrees that the district court lacked authority to order credit for
time served.
3
The BOP’s procedures for calculating credit under 18 U.S.C. § 3585 are set out
in its Sentence Computation Manual. See U.S. Dep’t of Justice, Fed. Bureau
of Prisons Program Statement No. 5880-28 (July 20, 1999); see also In re U.S.
Bureau of Prisons, 918 F.3d 431, 438–39 (5th Cir. 2019). A prisoner who believes the BOP
has failed to calculate credit correctly may seek “administrative review of the computation
of [his] credits” or “judicial review of the[] computations after exhausting [his]
administrative remedies.” Wilson, 503 U.S. at 335.
4
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account time served is to “reduce[] [a defendant’s] sentence accordingly and
note[] the reason for the reduction in the judgment.” Taylor, 973 F.3d at 419.
But that is not an option for the district court here. Because Montero
is subject to a mandatory minimum sentence of 120 months and is ineligible
for safety-valve relief, the district court does not have authority to depart
downward below his statutory-minimum sentence, even to adjust for time
served. 4 See Smith v. McConnell, 950 F.3d 285, 288–89 (5th Cir. 2020) (per
curiam). Given this constraint, there is no “reasonable probability”—or
even a possibility—“that, but for the error, [Montero] would have received
a lesser sentence.” United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012).
Thus, Montero cannot make the showing required for plain error.
The district court was not authorized to order credit for time served,
so we modify the judgment to strike that provision. In all other respects, we
AFFIRM the district court’s sentence. Montero’s pro se motion for new
counsel, which was previously carried with the case, is DENIED. See United
States v. Wagner, 158 F.3d 901, 902–03 (5th Cir. 1998).
AFFIRMED AS MODIFIED.
4
The Government suggests that we could also grant a limited remand for the
district court to consider whether “to amend [Montero’s] sentence nunc pro tunc to order
that it run concurrently with any time in state incarceration.” But Montero does not
request this relief. Even if he had, Montero cannot make the proper showing for plain error,
as there is no indication in the record that the district court was unaware at the time of
sentencing that it had discretion to order that the federal sentence run concurrently to any
state sentence resulting from Montero’s then-pending state charges.
5