United States of America v. Brian Erick Montes-Fosse

United States Court of Appeals
For the First Circuit
No. 15-1779
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN ERICK MONTES-FOSSE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya, and Barron,
Circuit Judges.
Lydia Lizarríbar-Masini, on brief for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.
May 31, 2016

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TORRUELLA, Circuit Judge. After Defendant-Appellant
Brian Erick Montes-Fosse ("Montes") pled guilty to aiding and
abetting the robbery of a postal worker, the United States District
Court for the District of Puerto Rico sentenced him to a term of
51 months' imprisonment and 3 years' supervised release. During
the sentencing hearing, the district court determined that Montes
should receive a sentencing enhancement under the United States
Sentencing Guidelines (the "Guidelines") because a firearm was
brandished or possessed during the robbery. The district court
also found that Montes was not entitled to a downward adjustment
for playing a minor role in the offense. Montes now appeals his
sentence. We affirm.
I.
When a defendant appeals after a guilty plea, "we glean
the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentencing investigation report
(PSI Report), and the record of the disposition hearing." United
States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
On June 30, 2014, the victim -- a United States Postal
Service ("USPS") worker -- was delivering mail in Mayagüez, Puerto
Rico. The victim was seated in her USPS vehicle when Alipio Soto-
Montalvo ("Soto") approached. With a gun in hand, Soto demanded
that the victim turn over the packages in her vehicle. After she

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placed several parcels on the front seat, Soto took two or three
of the packages and fled the scene on foot.
Montes had driven Soto to the scene. Montes would later
acknowledge having "taken [Soto] earlier the day to the place where
the robbery occurred for the purpose of committing that robbery."
At some point after the robbery, a witness at the housing project
where both men lived overheard them discussing the crime and
"warning of a heavy police presence" in the area. 1
Montes and Soto were arrested in October and September
2014, respectively. Montes pled guilty to one count of aiding and
abetting the robbery of a USPS employee under 18 U.S.C. § 2114(a)
and § 2, and Soto to aiding and abetting the carrying, using, and
brandishing of a firearm during and in relation to a crime of
violence under 18 U.S.C. § 924(c)(1)(A)(ii) and § 2.
Under Montes's written plea agreement, Montes and the
Government agreed to the following Guidelines recommendations:
Montes would receive a base offense level of 20 under
U.S.S.G. § 2B3.1(a), with a 2-level increase because post office
property was taken under U.S.S.G. § 2B3.1(b)(1); a 5-level
increase because a firearm was brandished or possessed during the
robbery under U.S.S.G. § 2B3.1(b)(2)(C); a 3-level reduction for
1 It is unclear from the record whether Montes was warning Soto
or vice versa.

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acceptance of responsibility under U.S.S.G. § 3E1.1; and a 2-level
reduction in light of Montes's minor role in the crime under
U.S.S.G. § 3B1.2(b). Montes reserved the right to argue against
the 5-level weapons enhancement. With that enhancement, the
Guidelines calculation yielded a total offense level of 22, which
correlates to a Guidelines range of 41 to 51 months' imprisonment
for an offender with a Criminal History Category ("CHC") of I. 2
At the sentencing hearing, the district court applied
the 5-level weapon enhancement and rejected the parties' joint
recommendation for a 2-level minor role reduction, both over
objections from Montes. Based on a total offense level of 24 and
a CHC of I, Montes had a Guidelines range of 51 to 63 months'
imprisonment and was sentenced to 51 months' imprisonment and 3
years' supervised release.
II.
Where, as here, "the moving party raises an objection
below, sentencing determinations are reviewed for abuse of
discretion," with the district court's factual findings subject to
clear error review and its interpretation of the Guidelines to de
2 The parties did not stipulate as to a CHC in the plea agreement.

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novo review. United States v. Lasseque, 806 F.3d 618, 623 (1st
Cir. 2015).
A. U.S.S.G. § 2B3.1(b)(2)(c): Brandishing a Firearm
Section 2B3.1 of the Guidelines provides a 5-level
increase "if a firearm was brandished or possessed" during the
commission of a robbery. U.S.S.G. § 2B3.1(b)(2)(c). During the
sentencing hearing, the Government contended that "it would be
impossible for Mr. Montes not to have known that [Soto] had a
firearm," as Soto was carrying the gun "at all times" before the
robbery. To the contrary, Montes contends that this enhancement
is inapplicable because the evidence did not demonstrate that he
had advance knowledge of the gun. See Rosemond v. United States,
-- U.S. --, 134 S. Ct. 1240, 1248-49 (2014). But, for purposes
of § 2B3.1(b)(2)(c), "the proper inquiry is whether the district
court could find, by a preponderance of the evidence, that it was
reasonably foreseeable to [Montes] that [Soto] would brandish or
possess a weapon during the robbery," and "not whether [Montes]
had actual knowledge of the gun prior to the robbery." Lasseque,
806 F.3d at 624. Indeed, when imposing the enhancement, the
district court noted that the Guidelines contained no knowledge
requirement.
"We have stated before that guns are often 'tools of the
trade' when it comes to certain offenses, and that an awareness of

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the general plan is sufficient to infer knowledge that the weapons
would be used to carry that plan through to completion." Id.
Accordingly, we have determined that the use of a gun is reasonably
foreseeable in the context of bank robberies, see id., and certain
drug offenses, see United States v. Fermin, 771 F.3d 71, 83 (1st
Cir. 2014). Soto contends that, as opposed to a bank robbery or
drug deal, "a knife or blade could have sufficed to rob a single
postal worker on duty delivering packages." The possibility that
Soto may have used a less deadly weapon, however, does not mean
that the use of a gun was not reasonably foreseeable. Montes does
not dispute that he was aware that Soto had ventured to that area
for the purpose of robbing a postal worker in broad daylight:
even if Montes had not seen the weapon, as he contends, it would
have been reasonably foreseeable that Soto would use a gun to
ensure that the postal worker gave him the packages and in case he
encountered any resistance from the victim herself or any other
passerby or authority. See United States v. Spinney, 65 F.3d 231,
237 (1st Cir. 1995) ("[N]ot even the most sanguine criminal would
expect clear sailing without some menace in the wind.").
Accordingly, the district court did not clearly err in determining
that the application of § 2B3.1(b)(2)(c) was warranted here.

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B. U.S.S.G. § 3B1.2(b): Minor Participant
Section 3B1.2 of the Guidelines allows for a 2-level
reduction where "the defendant was a minor participant" in the
offense. U.S.S.G. § 3B1.2(b). 3 A minor participant is one "who
is less culpable than most other participants in the criminal
activity, but whose role could not be described as minimal."
U.S.S.G. § 3B1.2 cmt. 5. The defendant bears the burden "of
proving that he is both less culpable than most others involved in
the offense of conviction and less culpable than most other
miscreants convicted of comparable crimes." United States v.
Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir. 2000). "Role-in-the
offense determinations are notoriously fact-sensitive," and the
district court's decision to apply a minor-role reduction is
subject to clear error review. Id. at 148-49. Accordingly,
"absent a mistake of law, battles over a defendant's status will
almost always be won or lost in the district court." Id. at 149
(internal formatting omitted) (quoting United States v. Graciani,
61 F.3d 70, 75 (1st Cir. 1995)).
3 As a threshold matter, Montes contends that the Government's
arguments on appeal that he did not play a "minor role" qualify as
a breach of the plea agreement. Because it is clear under our
case law that the district court did not clearly err in determining
that Montes was not entitled to this adjustment, we need not decide
whether the Government's arguments, made on appeal but not before
the district court during sentencing, should be disregarded.

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This case, however, gives us pause. Montes has
consistently denied that he was involved in the planning of the
crime, and neither the Government nor the Probation Office has
stated otherwise. The record establishes only that Montes drove
Soto to the scene of the crime (albeit with full knowledge that a
crime would be committed) and later discussed the heavy police
surveillance in the area with Soto. During the sentencing
hearing, however, the district court implied that Montes "scope[d]
out the place" prior to the robbery. As Montes suggests, the use
of the phrase "scope out" suggests that Montes was involved in the
planning of the offense. In the circumstances of this case, a
statement by the district court inflating a defendant's role in
the crime, without any record basis for this assertion, may well
be an indicator of error.
Nevertheless, the district court's subsequent statements
indicate that it understood Montes's more limited role in the
offense. After the district court expressed its doubts as to the
minor role adjustment, defense counsel clarified that Montes only
"drove . . . [Soto] to this place and left him there," to which
the district court replied, "I know, but he was taking him to the
place where the robbery occurred for the purpose of committing the
robbery, so he knew a robbery was going to be committed." In
light of this exchange, we are satisfied that the district court

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understood that Montes did not help plan the offense. Rather than
basing its conclusion on Montes's involvement in the underlying
scheme, the district court clarified that the act of driving his
accomplice to the scene of the crime, with full knowledge of what
was to ensue, precluded a minor-role adjustment in this instance.
To be sure, we typically have upheld a district court's
decision not to grant a role-in-the-offense adjustment where the
defendant has more extensive involvement in the underlying crime.
See, e.g., United States v. Meléndez-Rivera, 782 F.3d 26, 29 (1st
Cir. 2015) (affirming denial of minor role adjustment where "the
appellant was present for the planning of the scheme and deeply
involved in its execution"); Vargas, 560 F.3d at 49-51 (affirming
the denial of a minor-role adjustment "in light of [the
defendant's] prior participation in the transportation of
contraband, his help in loading the truck, the amount of money
paid to him, the quantity of drugs that had been entrusted to his
care, and his willingness to discuss a role in future deliveries");
United States v. Morales-Machuca, 546 F.3d 13, 24 (1st Cir. 2008)
(affirming denial of minor-role reduction where the defendant "was
in telephonic contact with the other defendants who were physically
participating in the robbery; was supposed to pick-up the
defendants after the March 27, 2002 robbery; supplied the Taurus
9mm pistol that [was involved in] the shoot-out; and enjoyed a

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share of the stolen money"). Montes did not retrieve Soto from
the scene, provide a weapon, assist in planning the crime, or take
any of the stolen packages following the robbery. Still, our
deferential standard of review militates against reversal.
No defendant is entitled to a minor-role downward
adjustment. See United States v. Santos, 357 F.3d 136, 143 (1st
Cir. 2004) ("[E]ven those who serve purely and simply as drug
couriers are not automatically guaranteed mitigating role
reductions."); cf. Meléndez-Rivera, 782 F.3d at 29 ("[A] defendant
need not be the key figure in a conspiracy in order to be denied
a mitigating role-in-the-offense adjustment."). The district
court found unpersuasive the fact that Montes did not have more
extensive involvement in the robbery: according to the district
court, Montes drove the assailant to the scene of the crime,
knowing full well that the assailant would commit robbery. See
United States v. García-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011)
("The fact that some other accomplice may be more culpable than
the defendant does not necessarily mean that the defendant's role
in the offense is minor."). 4 The district court's determination
was not unreasonable, and we therefore affirm its decision not to
4 Indeed, Montes makes only a passing argument that he is "less
culpable than the mine-run of those who have committed similar
crimes," a required showing for those hoping to avail themselves
of the minor-role reduction. García-Ortiz, 657 F.3d at 29.

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grant Montes a minor-role downward adjustment. See United States
v. Dilorio, 948 F.2d 1, 5 (1st Cir. 1991) ("[A] district court's
determination under the Guidelines of a defendant's role in an
offense cannot be clearly erroneous where it is based on a
reasonable inference drawn from the undisputed facts.").
III.
Because we do not find that the district court clearly
erred in either applying the weapons enhancement or in declining
to apply a minor-role reduction, we affirm Montes's sentence.
Affirmed.

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