Case: 22-10667 Document: 00516811862 Page: 1 Date Filed: 07/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10667
Summary Calendar FILED
____________ July 6, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Angel Aguilar Montalvo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-13-1
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
For his guilty-plea conviction, Angel Aguilar Montalvo challenges his
240-months’ prison sentence for receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2)(A), (b)(1). He challenges the court’s: two-level
enhancement under Sentencing Guideline § 2G2.2(b)(6) for use of a
computer; and non-application of a two-level reduction under Guideline §
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10667 Document: 00516811862 Page: 2 Date Filed: 07/06/2023
No. 22-10667
2G2.2(b)(1), which applies when defendant’s conduct was limited to receipt
or solicitation. U.S.S.G. § 2G2.2(b)(1), (b)(6).
Because Montalvo is raising different objections on appeal to the
enhancement and lack of reduction than he raised in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Montalvo must show a forfeited plain error
(clear-or-obvious error, rather than one subject to reasonable dispute) that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct the
reversible plain error, but generally should do so only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings”. Id. For
the reasons that follow, the claims fail under plain-error review. (Even if the
issues had been preserved in district court, we would still affirm.)
The district court did not commit the requisite clear-or-obvious error
in applying § 2G2.2(b)(6). As Montalvo concedes, our court has foreclosed
his assertion that the use of a computer enhancement is inappropriate based
on its broad application; he presents this issue only to preserve it for possible
further review. United States v. Miller, 665 F.3d 114, 122–23 (5th Cir. 2011)
(rejecting similar challenge to § 2G2.2(b)(6) enhancement when defendant
“attack[ed] the policies and rationale that underpin the Guidelines” because
“[t]he Guidelines remain the Guidelines, and district courts must take them
into account”).
Likewise, the court did not commit clear-or-obvious error in
concluding § 2G2.2(b)(1) does not apply. Although Montalvo claims his
conduct was limited to receipt of child pornography without intent to
distribute, he both transported and edited child pornography. See §
2G2.2(b)(1) & n.1 (distinguishing simple possession from other types of
activity categorized as “distribution” which is “any act, including possession
2
Case: 22-10667 Document: 00516811862 Page: 3 Date Filed: 07/06/2023
No. 22-10667
with intent to distribute, production, transmission, advertisement, and
transportation, related to the transfer of material involving the sexual
exploitation of a minor”).
As for his assertion that the language of § 2G2.2(b)(1) does not
include conduct grouped with receipt of child pornography, this matter is
abandoned for inadequate briefing. E.g., United States v. Stalnaker, 571 F.3d
428, 439–40, 440 n.10 (5th Cir. 2009) (explaining that, where appellant does
not fully explain his argument or cite the record or relevant law, he has
abandoned issue by failing to adequately brief it).
AFFIRMED.
3