United States v. Kristopher Montemayor , 668 F. App'x 96 ( 2016 )

Case: 15-40197 Document: 00513641517 Page: 1 Date Filed: 08/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40197
Fifth Circuit
FILED
Summary Calendar August 17, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
KRISTOPHER MICHAEL MONTEMAYOR,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-252-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Kristopher Michael Montemayor, a former elected
member of the Webb County Commissioners Court, pleaded guilty under a plea
agreement to Count 2 of his indictment, which charged him with federal
programs bribery under 18 U.S.C. § 666(a)(1)(B). As part of the plea
agreement, Montemayor agreed to waive his right to appeal his conviction and
sentence, except to the extent that the district court sentenced him to an
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-40197
imprisonment term that exceeds the statutory maximum or to an upward
departure or upward variance from the applicable guidelines range.
The district court sentenced Montemayor within his advisory guidelines
range to 76 months of imprisonment, three years of supervised release, and a
fine of $109,405.72. The district court also ordered a $100 special assessment
and a forfeiture of $13,721.16.
Montemayor appeals his conviction and sentence, raising six arguments:
(1) his waiver of appeal is invalid because the government provided no
consideration in exchange for the plea agreement; (2) there was no jurisdiction
to prosecute him under § 666 because his position as a county commissioner in
Texas did not qualify him as an “agent” for purposes of § 666; (3) the district
court erred in sentencing him by considering as relevant conduct information
obtained from him in the course of his agreeing with federal agents to perform
undercover work; (4) that court miscalculated the value of a truck involved in
a bribery scheme; (5) that court erred regarding his sentence by considering as
relevant conduct payments he received or solicited before taking office; and (6)
that court erred regarding the fine imposed by failing to consider all the factors
under U.S.S.G. § 5E1.2(d)(1)-(7) for determining the amount of the fine and by
improperly delegating to the probation officer the court’s responsibility to
instruct how the fine was to be collected. The government invokes
Montemayor’s waiver of appeal.
Montemayor did not challenge the validity of the plea agreement in the
district court or attempt to withdraw his guilty plea on the ground that the
plea agreement lacked consideration. He cannot establish here that the
district court plainly erred in accepting the plea agreement, as we have never
expressly held that consideration is required to support a valid plea agreement.
See United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002) (applying plain
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error review); United States v. Smallwood, 920 F.2d 1231, 1239-40 (5th Cir.
1991); see also United States v. Araromi, 477 F. App’x 157, 159 (5th Cir. 2012).
Moreover, Montemayor has not shown that the plea agreement lacked
consideration, as the government agreed in the plea agreement to, among other
things, dismiss Count 1 of Montemayor’s indictment and refrain from further
prosecuting him based on the information then known by the government. The
plea agreement bound the government to do something it was not otherwise
required to do, so Montemayor has not shown that the plea agreement lacked
consideration. See Smith v. Estelle, 562 F.2d 1006, 1008 (5th Cir. 1977).
Montemayor’s second contention, that there was no jurisdiction to
prosecute him under § 666 because he did not meet the definition of an “agent”
for purposes of § 666, is also unavailing. The question whether Montemayor
was an “agent” under § 666 does not relate to the district court’s subject matter
jurisdiction. See United States v. Isgar, 739 F.3d 829, 838 (5th Cir. 2014).
Instead, the assertion that the facts did not satisfy the “agent” element of § 666
goes only to the merits of the case. See United States v. Cotton, 535 U.S. 625,
630-31 (2002); United States v. Scruggs, 714 F.3d 258, 263 (5th Cir. 2013).
Montemayor did not claim in the district court that he was not an “agent” for
purposes of § 666, so that issue is subject to plain error review. See United
States v. Baymon, 312 F.3d 725, 728 (5th Cir. 2002).
Montemayor’s guilty plea and appeal waiver do not bar review of a claim
that the factual basis for his plea failed to establish the essential elements of
the offense. See United States v. Garcia-Paulin, 627 F.3d 127, 131 n.2 (5th Cir.
2010); Baymon, 312 F.3d at 727-28. Nevertheless, his claim that he is not an
“agent” is unavailing. Section § 666 applies to agents of local governments,
including Texas county governments. See § 666(a)(1), (d)(3); United States v.
Marmolejo, 89 F.3d 1185, 1191, 1194 n.11 (5th Cir. 1996). Montemayor
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concedes that county commissioners are involved in the administration of the
county’s federal funds, which distinguishes his case from United States v.
Phillips, 219 F.3d 404, 411-13 (5th Cir. 2000). He has not shown error on this
issue, plain or otherwise. See United States v. Lipscomb, 299 F.3d 303, 315-16
(5th Cir. 2002).
Montemayor’s remaining assertions challenge the propriety of his
sentence, and he has not adequately briefed any basis for claiming that those
challenges are excepted from his appeal waiver. See United States v. Edwards,
303 F.3d 606, 647 (5th Cir. 2002) (recognizing that issues that are not
adequately briefed are waived). His sentence was within his guidelines range
and below the statutory maximum, so his challenges to his sentence are barred
by his appeal waiver. See United States v. Branam, 231 F.3d 931, 933 (5th Cir.
2000).
Finally, Montemayor’s assertion that district court improperly delegated
its duty to designate how the fine was to be collected would fail even if it were
not barred by his appeal waiver. No such delegation occurred: The district
court determined the fine amount and ordered immediate payment, which is
when payment is ordinarily required under 18 U.S.C. § 3572(d)(1). See United
States v. Arledge, 553 F.3d 881, 901 (5th Cir. 2008); see also Jones v. Fox, 453
F. App’x 471, 471 (5th Cir. 2011).
The judgment of the district court is AFFIRMED.
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