United States v. Montes ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  October 19, 2004
    Charles R. Fulbruge III
    Clerk
    No. 04-50330
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JUAN ALBERTO MONTES, JR.,
    also known as Jose Maria Gonzalez,
    also known as Jorge Montes-Ramos,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. EP-03-CR-1943-ALL-DB
    --------------------
    Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
    PER CURIAM:*
    Juan Alberto Montes, Jr., appeals his sentence of 24 months
    in prison arising from his guilty-plea conviction for illegal re-
    entry into the United States.   Montes argues that the upward
    adjustment for obstruction of justice was contrary to the
    Sentencing Guideline’s commentary and that, even if the
    obstruction adjustment was not barred, it was not supported by
    the evidence because the Government admitted that it could not
    *
    Pursuant to 5TH CIR. R. 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    this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
    No. 04-50330
    -2-
    prove that “Juan Alberto Montes” is a false name and the
    Government had offered no evidence that the birth date Montes had
    given was false.
    The district court made no explicit finding to support the
    enhancement for obstruction of justice.     By granting the
    Government’s motion, the district court implicitly found either
    that Montes had made a materially false statement to a judge or
    magistrate judge or to the probation officer.     However, the
    record does not support a finding that Montes had made a false
    statement at all.    The Government admitted that it did not know
    whether “Montes” was a false name and did not offer any evidence
    that the 1972 birth date was false.     Thus, the district court
    clearly erred.     See United States v. Martinez, 
    263 F.3d 436
    , 441
    (5th Cir. 2001).
    We do not conclude, “on the record as a whole, that the
    error was harmless, i.e., that the error did not affect the
    district court’s selection of the sentence imposed.”     United
    States v. Ahmed, 
    324 F.3d 368
    , 374 (5th Cir. 2003)(internal
    quotation marks and citations omitted).     Montes’s sentence is
    VACATED and the matter REMANDED for resentencing.
    

Document Info

Docket Number: 04-50330

Judges: Wiener, Benavides, Stewart

Filed Date: 10/19/2004

Precedential Status: Non-Precedential

Modified Date: 11/5/2024