IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 95-50867
(Summary Calendar)
_________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIS MONTANO,
Defendant-Appellant.
____________________________________________________
Appeal from United States District Court
for the Western District of Texas
USDC No. A-94-CR-203
__________________________________________________
October 28, 1997
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Melvis Montano appeals the sentence imposed following his plea of guilty to a
charge of conspiracy to possess with intent to distribute cocaine. He claims that a vacating of the
sentence and a remand for resentencing is required because (1) his Presentence Report (“PSR”)
contained procedural defects, denying him both an opportunity to review the PSR and to prepare a
defense concerning sentencing; and (2) the district court failed to perform its duty under 18 U.S.C.
§ 3553(c)(1) to state reasons for the specific sentence it imposed. For the reasons discussed below,
we affirm appellant’s sentence.
*
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 R. 47.5, the court has determined that this opinion should not be published and is not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.
BACKGROUND
Appellant was indicted by grand jury on December 20, 1994, in the Western District of Texas,
for conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C.
§ 846 (count one) and possession with intent to distribute cocaine and cocaine base in violation of
21 U.S.C. § 841(a)(1) (count two). He reached a plea agreement which called for him to plead guilty
to count one in exchange for the dismissal of count two. In the plea agreement, the government
agreed to “make known to the court , prior to sentencing, the nature and extent of [appellant’s]
cooperation.” However, the government retained the “sole discretion” whether to file a motion for
downward departure of the sentence pursuant to section 5K1.1 of the United States Sentencing
Guidelines. Appellant pled guilty to count one on April 25, 1995.
On November 9, 1995, appellant was sentenced to jail for 168 months, an amount within the
applicable range (151-188 months) of his base offense level (Level 34). In addition, he received a
four-year term of supervised release, and was ordered to pay a $2,500 fine and a $50 special
assessment. According to the PSR, appellant has stated that he cannot speak or write in English. The
record reveals that an interpreter was provided for appellant at the sentencing hearing.
The circumstances and events surrounding the sent encing hearing give rise to appellant’s
claims. In support of his contention that we must remand for resentencing, appellant raises three
assignments of error: (1) the PSR was not delivered to and reviewed with him in accordance with
various statutory procedural requirements; (2) his due process rights to adequate notice, adequate
opportunity to respond, and effective assistance of counsel were violated in such circumstances; and
(3) the district court ignored its statutory duty to state reasons for its imposition of a particular
sentence within the applicable sentencing range.
2
DISCUSSION
Alleged Defects with the PSR
Appellant’s argument asserting procedural infirmities with the PSR is predicated on 18
U.S.C. § 3552(d), Fed. R. Crim. P. 32(b)(6), Fed. R. Crim. P. 32(c)(3)(A), and Western District of
Texas Local Rule CR-32(a)(1). Together, these rules attempt to ensure the defendant a meaningful
opportunity to review and develop objections to the PSR prior to sentencing, thus setting the stage
for the focused, adversarial development of relevant sentencing issues at the sentencing hearing.
The record reveals that appellant did not object to any PSR-related procedural defects at the
sentencing hearing; as such, he may not raise this objection for the first time on appeal absent plain
error. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994), cert. denied, 513 U.S. 1196
(1995); United States v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992). “‘Plain error’” exists when (1)
there is an error, (2) it is clear or obvious, and (3) and it affects substantial rights. United States v.
Olano, 507 U.S. 725 (1993); Calverley, 37 F.3d at 162-63. Even if this three-prong test is met, the
district court has the discretion not to correct an error which does not “‘seriously affect the fairness,
integrity, or public reputation of judicial proceedings.’” Calverley, 37 F.3d at 162 (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)).
The government argues that we can dispose of appellant’s procedural claims solely on the
basis of our decision in United States v. Navejar, 963 F.2d 732 (5th Cir. 1992). We agree. In
Navejar, the court handed the PSR to defendant at the sentencing hearing, whereupon defendant
conferred privately with counsel to review it. In response to defendant’s newly-raised contention on
appeal that the PSR contained procedural defects, we held that “conclusory allegations of [procedural
infirmities] unsupported by specifics” are inadequate to challenge “a solemn declaration in open
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court” that defendant has had “sufficient time” to review the PSR with counsel. Navejar, 963 F.2d
at 734. We noted that such declarations in open court “carry a strong presumption of verity,” and
that there was nothing in the record which contradicted the in-court declaration. Id. In the instant
case, appellant was also handed the PSR at the sentencing hearing. After meeting with counsel (with
an interpreter) to review the PSR,1 appellant was asked by the court whether he had an opportunity
to review it; he responded affirmatively. The court then asked appellant whether he would like to
voice any concerns about the PSR; his reply--“no”--was a “solemn declaration in open court” that
he had sufficient time to review it. The court thereafter asked him several times whether he would
like to address the court before his sentence was imposed. Although appellant attempted to set forth
mitigating circumstances for the court to consider in sentencing, not once did he indicate
disagreement with the PSR’s contents.2 Eventually, he stated that he was “ready for [the court] to
do the sentence.”
Appellant attempts to distinguish Navejar by claiming that the record reveals two
circumstances that contradict his “declaration in open court” that he had sufficient time to review the
PSR. He argues that his difficulty with English, combined with his continued expression of surprise
at the sentencing hearing after meeting with counsel, belie such “declaration.” We reject appellant’s
argument. The record indicates that appellant was provided with an interpreter at the sentencing
1
The record indicates that an interpreter was present during appellant’s meeting with counsel.
All further references to appellant’s consultation with counsel at the sentencing hearing incorporate
the interpreter’s presence.
2
We note that the court made its inquiries directly to appellant. In fact, after appellant had
reviewed the PSR with his counsel, and before the court sentenced appellant, the court directly asked
appellant no less than three times whether he would like to make any comments concerning his case.
In addition, the court made similar inquiries to appellant’s counsel.
4
hearing and that the court gave appellant “whatever time [he] need[ed]” to discuss the PSR with
counsel and the interpreter. Any claimed English difficulty is therefore overblown.
Moreover, after meeting with counsel, appellant failed to challenge the contents of the PSR
despite numerous inquiries from the court. The surprise to which appellant refers was not directed
toward any particular aspect of the PSR which continued to confuse him, but rather to the fact that
the time for sentencing was upon him. Appellant’s feeble attempts to challenge his in-court
declaration are inadequate. Mindful of the “strong presumption of verity” accorded his in-court
declaration, especially when it is uncontroverted by anything in the record, we conclude that neither
his right to due process nor his right to effective assistance of counsel was violated at the sentencing
hearing. The district court did not commit plain error in proceeding to sentencing.3
Before proceeding to appellant’s next assignment of error, we briefly address those aspects
of the PSR which appellant indicates he would question if a remand was ordered. Appellant’s
conclusory allegations, made for the first time on appeal, suggest that he would probe: (1) the PSR’s
finding of no acceptance of responsibility and (2) the absence of any informat ion in the PSR
pertaining to the government’s promise to report appellant’s cooperation to the court. To the extent
that appellant is raising an assignment of error as to the PSR’s factual accuracy, we reject it.
The accuracy of a district court’s factual findings is reviewed under a “clearly erroneous”
3
In arguing that the district court had a special responsibility to ensure that the “functional
purpose” of Fed. R. Crim. P. 32 was followed, appellant in part relies on Burns v. U.S., 501 U.S. 129
(1991). In Burns, the United States Supreme Court held that before the district court can depart
upward or downward from the applicable Guidelines range on a ground not identified as a ground
for such departure either in the PSR or in a prehearing submission by the government, Rule 32
requires reasonable advance notice to the parties that the court is contemplating such departure. Id.
at 135 n.4, 138-39. Here, we are not confronted with a Burns-type situation, because the district
court’s sentence fell within the applicable sentencing range. We, therefore, refuse to extend Burns
to the facts before us.
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standard. United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996). Information used in
sentencing must have some indicia of reliability. U.S.S.G. § 6A1.3(a); Fitzgerald, 89 F.3d at 223;
United States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991), cert denied, 503 U.S. 987 (1992). The
district court has wide discretion in evaluating the reliability of the information and whether to
consider it. Kinder, 946 F.2d at 366. In disputing factual assertions in a PSR, the defendant must
show that the information is materially untrue, inaccurate, or unreliable. Navejar, 963 F.2d at 735.
Our review of a district court’s ruling on acceptance of responsibility is “even more deferential than
a pure clearly erroneous standard.” Kinder, 946 F.2d at 367.
As to the government’s failure to follow through on its promise to report appellant’s
cooperation to the court, appellant notably does not set forth any facts demonstrating such
cooperat ion. Appellant’s objection is vague and general, and does not suggest material untruth,
inaccuracy, or unreliability in the PSR. Navejar, 963 F.2d at 735.
Appellant claims that the only reason he did not receive a downward adjustment for
acceptance of responsibility was because the district court did not believe his statement that this drug
incident was his first. The district court based its belief on what he calls two “unsubstantiated ‘facts’”
in the PSR, namely that: (1) appellant had a history “for an unspecified time period” with an
“unidentified” confidential informant in the distribution of drugs; and (2) appellant had been linked
by fingerprint testing to an arrest five years earlier in Houston for possession of cocaine (despite
appellant’s claim that the arrest was of a different person, Jose Palimino, who had been using his
name).
Appellant does not present any facts to controvert the PSR’s finding that appellant had
previously engaged in drug distribution activities with the confidential informant. His objection to
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this fact, therefore, is too general to rise to the level of suggesting material untruth, inaccuracy, or
unreliability in the PSR. Navejar, 963 F.2d at 735. Appellant objects to the PSR’s arrest history
information (i.e., the incident in Houston) by asserting that the probation officer’s testimony at the
sentencing hearing was contradictory. We disagree. The probation officer explicitly stated at the
sentencing hearing that fingerprint testing linked appellant to an arrest in Harris County,4 although
he acknowledged that a case was not brought. Appellant’s objection to his arrest history, therefore,
neither demonstrates nor suggests material untruth, inaccuracy, or unreliability in the PSR. Navejar,
963 F.2d at 735.
Failure to State Reasons for Sentence
Appellant argues that his sentence should be vacated because the district court did not state
any reasons for its imposition of his sentence as required by 18 U.S.C. § 3553(c)(1) for sentences
which exceed 24 months. Because appellant did not raise this objection to the district court, we
review only for plain error. Calverley, 37 F.3d at 162-64.
We note appellant’s reliance on United States v. Price, 51 F.3d 175 (9th Cir. 1995), in which
the court vacated the sentence and remanded on the basis of the district court’s failure to follow
section 3553(c)(1). However, in Price, the court expressly noted that the district court did not state
the particular reasons for choosing the sentence imposed “in open court or in the judgment’s written
‘Statement of Reasons’.” Price, 51 F.3d at 178 (emphasis added). In the instant case, t he district
court stated in the judgment’s written “Statement of Reasons” that “[t]he sentence is within the
guideline range, that range exceeds 24 months, and the sentence is imposed due to the seriousness
of the offense” (emphasis added). Based on the circumstances of this case, the requirements for
4
Houston is located in Harris County, Texas.
7
showing plain error have not been met. James, F.3d at 407-08.
CONCLUSION
For the foregoing reasons, we AFFIRM the appellant’s sentence.
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