United States Court of Appeals
For the First Circuit
No. 18-1901
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE ELI MONTALVO-FEBUS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.
July 12, 2019
LYNCH, Circuit Judge. This is a sentencing appeal. Jose
Eli Montalvo-Febus pleaded guilty to attempted possession of child
pornography, 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), admitting he
attempted to take illicit photographs of a naked fourteen-year-
old female victim. In exchange for the guilty plea, the government
agreed to dismiss two charges of transportation of this minor with
the intent to engage in criminal sexual activity, which carried
mandatory minimum sentences of ten years' imprisonment. Id.
§ 2423(a). Montalvo was sentenced to an upwardly variant sentence
of eighty-four months of imprisonment, followed by ten years of
supervised release.
For the first time on appeal, Montalvo argues that his
sentence is procedurally and substantively unreasonable. Finding
no error, we affirm his sentence.
I.
Since Montalvo pleaded guilty, we draw the facts from
the plea agreement, the presentence investigation report (PSR),
and the sentencing hearing transcript. See United States v.
Colón-Rosario, 921 F.3d 306, 309 (1st Cir. 2019). Montalvo first
met the victim in Salinas, Puerto Rico, around August 2011, and
began sending her messages. The victim told Montalvo that she was
thirteen years old, and he told her that "in love there was no
age," that he loved her, and that she should not tell her mother
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that they were talking to each other. Montalvo also began visiting
the victim at her school.
In 2012, Montalvo twice picked the victim up from a
friend's house and drove her to a secluded and poorly lit area to
engage in sexual activity. On approximately eight other occasions
that year, Montalvo picked the victim up from a chapel near her
home and drove her to a motel to engage in sexual activity, before
driving her home. Montalvo also requested and attempted to take
naked photographs of the victim, but she did not permit him to do
so.
On October 26, 2012, the victim's family obtained a
protective order against Montalvo, which, after an extension was
granted, lasted until November 30, 2015. The family had sought
the protective order after Montalvo called the victim and sent her
text messages asking when she would be "dropping the charges."
On June 16, 2015, Montalvo was indicted in federal
district court. On May 10, 2018, a federal indictment was filed
in a separate case charging Montalvo with two counts of
transportation of a minor with the intent to engage in any criminal
sexual activity, in violation of 18 U.S.C. § 2423(a), which covered
the same conduct in the 2015 indictment, but with corrected dates
for the offenses. On May 15, 2018, the government also filed an
information charging Montalvo with one count of attempted
possession of child pornography in violation of 18 U.S.C.
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§§ 2252A(a)(5)(B) and (b)(2), in connection with Montalvo's
attempt to take photographs of the naked victim.
Montalvo pleaded guilty to the attempted possession of
child pornography charge. In the plea agreement, the parties
agreed that Montalvo's base offense level was eighteen. The plea
agreement stipulated to a two-level enhancement because the
offense involved the use of a computer or interactive computer
service and a three-level reduction for acceptance of
responsibility, for a total offense level of seventeen. The
parties did not stipulate to a criminal history category. The
parties stipulated that Montalvo "may argue for a non-guideline
sentence of 60 months, while the Government reserves the right to
argue for a non-guideline sentence of up to 108 months of
imprisonment, regardless of [Montalvo's] criminal history
category."
The PSR calculated a total offense level of seventeen.
The PSR stated that Montalvo had three 2010 Puerto Rico state
convictions for: possession of a controlled substance (cocaine),
carrying and use of firearms without a license, and manufacture,
distribution, possession, and use of ammunition. For these three
convictions, Montalvo was sentenced to a total of forty-four
consecutive years of probation. Montalvo committed the instant
offense while on probation for these prior convictions. The PSR
stated that Montalvo had a criminal history category of III, so
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the applicable guideline range was thirty to thirty-seven months'
imprisonment. The maximum term of imprisonment for the offense is
ten years. 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2).
The victim stated, as recounted in the PSR, that her
"school grades were affected," she "would constantly cry," she
thought of "taking [her] life," and she suffered from "[a]nger,
fear, anxiety, sadness, guilt, indifference, insomnia, changes,
insecurity, uncontrollable crying, concentration difficulties,
repetitive memories of crime[,] and depression." She also said
that her family "did not expect what happened, as [she] was the
girl with the good grades that never went out," that her mother
"had to relocate to the United States because she feared for her
life," and that the victim also moved to the continental United
States when she turned eighteen.
In its description of the offense conduct, the
government's sentencing memorandum stated that "the minor female
involved in this case was 14 years old and considered herself a
naive girl, who barely left her house and was the star of her
family with good grades and sports," and that Montalvo's
interactions with the minor were "filled with false promises and
'love' illusions." It also stated that during trial preparations,
when asked about "love machine" furniture in certain motel room
pictures, the victim stated that Montalvo told her "it was for
sexual positions and that they would not use it on that occasion
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because she was . . . 'hurt,' referring to the fact that she was
bleeding after losing her virginity to the 27-year-old defendant."
At the sentencing hearing, defense counsel requested a
sixty-month sentence and the government requested a 108-month
sentence. The victim read a prepared victim impact statement.
The victim stated that because of Montalvo, her "world fell apart,"
and that at the time, she "didn't understand what [she] had done."
She also stated that Montalvo "disgraced [her] before many, many
people" and made it seem like she "was the easy girl that would
sleep around with anyone." She stated that she "had to take
insult[s] from [her] school peers," and "when [she] saw how they
were speaking bad about [her] in school, that's when [she] tried
to take [her] life the most."
Defense counsel argued that "within [the victim's] own
expressions what made her feel the worst were insults from her
peers," but did not challenge any of the victim's testimony or the
government's sentencing memorandum. Defense counsel conceded that
the interactions between Montalvo and the victim were "filled with
false promises and love illusions."
The district court agreed with the PSR's guideline
calculations. As to the 18 U.S.C. § 3553(a) factors, the district
court stated that Montalvo was thirty-three years old, was a
resident of Salinas, had five dependents, had completed the twelfth
grade, was employed as a diesel mechanic, was in good physical and
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mental health, and had a history of substance abuse. The district
court also stated that Montalvo had three convictions, that the
"instant offense occurred while he was on state probation
supervision," and that Montalvo "violated the law with a 14-year-
old adolescent female." The district court stated that "[w]ith
this background, the Court deems that a non-guideline sentence, as
stipulated in the plea agreement, is a sentence that is just and
not greater than necessary to promote the objectives of
sentencing." The district court sentenced Montalvo to a term of
imprisonment of eighty-four months, which the court found
"reasonably necessary to fulfill all of the sentencing objectives,
including just punishment, deterrence, rehabilitation and positive
reintegration to the community." The district court ordered a
term of ten years of supervised release to follow imprisonment.
The defendant did not object to the procedural or substantive
reasonableness of his sentence. The government then moved to
dismiss the other charged counts, and the court granted the motion.
Montalvo timely appealed.
II.
"In sentencing appeals, appellate review is bifurcated."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
"[W]e first determine whether the sentence imposed is procedurally
reasonable and then determine whether it is substantively
reasonable." Id. (quoting United States v. Clogston, 662 F.3d
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588, 590 (1st Cir. 2011)).
A. Procedural Reasonableness
The government correctly concedes that the
waiver-of-appeal provision in the plea agreement does not apply in
this case.1
We review unpreserved claims of procedural
unreasonableness for plain error. United States v. Arroyo-
Maldonado, 791 F.3d 193, 197 (1st Cir. 2015).
Montalvo argues for the first time on appeal that the
district court committed procedural error by relying on the
government's sentencing memorandum, which he claims "made highly
prejudicial, unreliable, false factual representations to the
Court claiming that [the victim] was a 'naive' young girl whom
[Montalvo] had 'hurt['] by 'making her bleed when he deprived her
of her virginity.'" Montalvo claims that the court was influenced
by the government's so-called misrepresentations because the court
1 Montalvo's appellate brief states that he does not bring
an independent claim of prosecutorial misconduct. Moreover, his
argument that the prosecutor engaged in misconduct by attempting
to "amend" the plea agreement's waiver-of-appeal provision is
belied by the sentencing hearing transcript. At the hearing, both
parties sought to "clarify" the scope of the appellate waiver.
The government stated that the parties' intent was that if Montalvo
"was sentenced within the recommendation, he would be waiving,"
but defense counsel responded, "we always understood that if he
was sentenced to more than 60 months, then he could still appeal."
The district court stated, "[t]o the extent [Montalvo] believes
he's free to . . . appeal, he should feel free to do so." There
is no evidence of misconduct.
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stated at the sentencing hearing, "I have the Government's
Sentencing Memorandum in front of me," and the government referred
to its sentencing memorandum several times during the sentencing
hearing.
There was no error here, plain or otherwise. The
government's sentencing memorandum did not make any
misrepresentations. It simply described the victim's version of
the facts. It stated that the victim "considered herself a naive
girl," not that she was in fact naive, and that she had reported
that Montalvo hurt her by taking her virginity. (Emphasis added.)
This is consistent with the victim's statements at the sentencing
hearing and in the PSR, described earlier.
Montalvo argues that the government's statements are
contradicted by interviews with the victim's junior high school
boyfriend, the victim's sister, and a Puerto Rico Police Department
officer, which Montalvo says show that the victim was "anything
but 'naive.'" Nothing in those reports contradicts the
government's representations that the victim considered herself
naive and that she stated she had been "hurt" when Montalvo took
her virginity. There was no misrepresentation. Further, the
defendant chose not to challenge the version of events in the
government's sentencing memorandum. "For sentencing purposes, a
prosecutor's statement, not adequately challenged by defense
counsel who has a full opportunity to respond, may constitute
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reliable information" for the district court to consider. United
States v. Díaz-Arroyo, 797 F.3d 125, 130 n.3 (1st Cir. 2015).
Montalvo also argues that the district court committed
procedural error because the victim's "chief complaint" was in
fact the "bad reputation she had at school," and that this was not
Montalvo's fault, but rather, the result of the victim's "behavior
with her boyfriend at the school and comments she had made to her
friends." This challenge also fails. To the extent the district
court did credit the victim's statements, it was acting well within
its discretion to do so. See United States v. Cintrón-Echautegui,
604 F.3d 1, 6 (1st Cir. 2010) ("[A] sentencing court has wide
discretion to decide whether particular evidence is sufficiently
reliable to be used at sentencing.").
B. Substantive Reasonableness
Montalvo's only argument as to substantive
unreasonableness is that his sentence was "marred" by procedural
error, a premise we have rejected. Beyond that, the facts of this
case fully justify the sentence, which "resides within the
expansive universe of reasonable sentences." United States v.
Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir. 2016) (quoting United
States v. King, 741 F.3d 305, 308 (1st Cir. 2014)).
* * *
Affirmed.
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