State v. Monzon

2016 UT App 1

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALBERTO MONZON,
Appellant.

Memorandum Decision
No. 20141007-CA
Filed January 7, 2016

Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 141900541

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes, Cherise M. Bacalski, and Deborah L.
Bulkeley, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY
concurred.

CHRISTIANSEN, Judge:

¶1 Alberto Monzon pled guilty to one count of possession
with intent to distribute a controlled substance, a second degree
felony. The district court sentenced Monzon to an indeterminate
prison term of one to fifteen years. Monzon does not contest his
conviction, but he appeals his sentence. We affirm.

¶2 In 2014, the State charged Monzon with possession of a
controlled substance with intent to distribute after he was caught
transporting five pounds of methamphetamine from Arizona to
Utah. Monzon pled guilty as charged in exchange for the State’s
promise to not refer Monzon’s case to federal prosecutors, who
State v. Monzon

would pursue prosecution of Monzon’s case under federal law.1
The State did not agree to any sentencing recommendation.

¶3 Prior to sentencing, Adult Probation and Parole (AP&P)
prepared a presentence investigation report (the PSI Report),
wherein it recommended that Monzon serve 180 days in jail,
followed by one year of probation. Although the sentencing
matrix recommended only sixty days in jail,2 AP&P urged, in its
PSI Report, that the court impose a longer jail term of at least 180
days because of the large ‚amount of drugs (five pounds)
[Monzon] had transported to this state‛ and to deliver a message
to Monzon and others ‚that a heavy price will be paid, and not
just a slap on the hand for transporting drugs for ‘Narco
traffickers.’‛ In addition, fifteen of Monzon’s family members,
friends, and employers sent letters to the district court regarding
Monzon’s character and seeking leniency for Monzon at
sentencing.

1. If Monzon had been charged and convicted under
federal law, the federal minimum sentence is no less than
five years in prison for trafficking 5–49 grams of pure
methamphetamine or 50–499 grams of a mixture, or no less
than ten years for trafficking 50 grams or more of
pure methamphetamine or 500 grams or more of a mixture. See
Federal Trafficking Penalties, Drug Enforcement Administration,
http://www.dea.gov/druginfo/ftp3.shtml [https://perma.cc/BJ8U-
S2DB]. Five hundred grams of methamphetamine equates to
about 1.1 pounds. Monzon was caught trafficking five pounds—
approximately 2,268 grams—of methamphetamine.

2. The Utah Sentencing Commission’s general matrix compares a
defendant’s criminal history assessment score with the degree of
the offense of which he has been convicted. State v. Harvey, 2015
UT App 92, ¶ 3, 348 P.3d 1199. The matrix creates a starting
point for sentencing judges by reflecting a recommendation for a
typical case. Id.

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State v. Monzon

¶4 At Monzon’s first sentencing hearing, his defense counsel
asked the district court to sentence Monzon to sixty days in jail
in accordance with the sentencing matrix’s recommended length
of incarceration. In support of her argument for this sentence,
defense counsel highlighted Monzon’s ‚lack of criminal history,
his great employment and family relationships and things of
[that] nature that would help to counteract sort of the
aggravating factor of the amount of methamphetamine.‛ The
State asked the district court to sentence Monzon to prison
because of the large amount of methamphetamine he had
trafficked. The State noted that had the case ‚gone federal, and
our agreement was to not send this federal, imagine the amount
of time he would be doing for five pounds of
methamphetamine‛ if convicted in the federal court. The State
agreed with the district court that the plea agreement was ‚sort
of a sentencing compromise.‛ The district court ultimately
continued the sentencing hearing for one week to consider the
parties’ differing recommendations.

¶5 At Monzon’s second sentencing hearing, the district court
stated that although it usually trusted AP&P’s sentencing
recommendations, it strongly disagreed with AP&P’s
recommendation in this case. The court then asked Monzon,
‚Tell me why I shouldn’t sentence you to prison on this because
of the severity of the crime you committed?‛ Monzon answered
that he had ‚desperately need*ed+ money‛ and that he was ‚just
trying to get a little bit [of] money for my baby we just had and
we just, you know, we were tight on bills.‛

¶6 The district court noted that it was ‚puzzling‛ that AP&P
‚wouldn’t see the circumstances being more aggravating‛ given
the quantity of methamphetamine involved and the impact such
a large quantity could have had on the community. The court
further addressed Monzon’s statement that he needed money to
support his family, noting that ‚there are a lot of people who
need money and what they do is they go out and get very very
difficult very physically challenging jobs that don’t pay a lot, but
they’ll go out and get two and three jobs if they have to. . . .

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State v. Monzon

They’ll do whatever they can to support their family and not
break the law.‛

¶7 The district court then sentenced Monzon to a prison term
of one to fifteen years, with credit for time served. Monzon
appeals, contending that the district court abused its discretion
in sentencing him to prison.

¶8 We review the district court’s sentencing decision for an
abuse of discretion. State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167. A court abuses its discretion in sentencing ‚when [it]
fails to consider all legally relevant factors or if the sentence
imposed is clearly excessive.‛ Id. (citation and internal quotation
marks omitted). ‚An appellate court may only find abuse if it
can be said that no reasonable [person] would take the view
adopted by the *district+ court.‛ Id. (first alteration in original)
(citation and internal quotation marks omitted).

¶9 Monzon concedes that the sentence he received was
‚within legislative guidelines‛ but argues that the district court
abused its discretion in three ways when it sentenced him to
prison. First, Monzon contends that the district court ‚treated
the fact that [he] possessed five pounds of methamphetamine as
the de facto reason for imposing a prison sentence,‛ when, in his
view, the court should not have considered the quantity of
methamphetamine in its sentencing decision at all. Second, he
contends that ‚*t+he State . . . improperly argued that because it
could have referred the case for federal prosecution and did not,
that the court was somehow obligated to impose a harsh
sentence.‛ Third, he contends that the court ‚failed to consider
the substantial evidence in mitigation.‛

¶10 As to Monzon’s contention that the district court should
not have considered the quantity of methamphetamine in his
possession, he argues that ‚*p+ossession of five pounds of a drug
does not merit a [harsher] sentence than a smaller quantity when
the legislature has not expressed the intent to treat larger
quantities differently.‛ He argues that Utah Code section

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State v. Monzon

58-37-8’s silence regarding the quantity of drugs possessed by a
defendant indicates that the Utah Legislature has not ‚opted to
treat a possession with the intent to distribute differently if the
quantity of drugs is greater.‛3 He then asserts, without citation,
that the absence of an explicit quantity-based sentencing
differential means that Utah has ‚determined that a sentence
should not be aggravated based on the quantity of drugs
possessed.‛

¶11 We cannot agree that the legislature has made such a
determination. The statute’s silence on this subject is equally
consistent with a desire to leave the ultimate sentencing decision
in drug trafficking cases such as this to the district court. As this
court has noted, the district court’s ‚exercise of discretion in
sentencing necessarily reflects the personal judgment of the
court and the appellate court can properly find abuse only if it
can be said that no reasonable [person] would take the view
adopted by the trial court.‛ State v. Moreau, 2011 UT App 109,
¶ 6, 255 P.3d 689 (alteration in original) (citation and internal
quotation marks omitted).

¶12 In any event, Monzon’s sentence was neither aggravated
nor enhanced. He was sentenced to the statutory ‚term of
not less than one year nor more than 15 years‛ for committing
a second degree felony. See Utah Code Ann. § 76-3-203(2)
(LexisNexis 2012). Although the sentencing matrix used
by AP&P recommended sixty days in jail, sentencing matrices
are advisory and ‚do not create any right or expectation
on behalf of the offender.‛ See 2013 Adult Sentencing and
Release Guidelines 11, Utah Sentencing Commission (2013),

3. Section 58-37-8 of the Utah Code references the quantity of
drugs as it relates to marijuana, but not methamphetamine. See
Utah Code Ann. § 58-37-8(2)(b)(i) (LexisNexis 2012) (‚Any
person convicted of violating Subsection (2)(a)(i) with respect
to . . . marijuana, if the amount is 100 pounds or more, is guilty
of a second degree felony . . . .‛).

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State v. Monzon

http://www.sentencing.utah.gov/Guidelines/Adult/2013%20Adu
lt%20Sentencing%20and%20Release%20Guidelines.final.combin
ed.pdf [https://perma.cc/9DZC-GK5Y]. And although AP&P
ultimately recommended 180 days in jail and one year of
probation, a district court is not bound by the sentencing
recommendations of AP&P. See Utah R. Crim. P. 11(h)(2) (‚*A+ny
recommendation as to sentence is not binding on the court.‛); see
also State v. Wanlass, 953 P.2d 1147, 1148–49 (Utah Ct. App. 1998)
(per curiam); State v. Houk, 906 P.2d 907, 909 (Utah Ct. App.
1995) (per curiam).

¶13 ‚Except for . . . constitutional restraints, the trial court has
broad discretion in imposing sentence within the statutory
scope. [The court] ‘must be permitted to consider any and all
information that reasonably may bear on the proper sentence for
the particular defendant, given the crime committed.’‛ State v.
Sanwick, 713 P.2d 707, 708 (Utah 1986) (per curiam) (quoting
Wasman v. United States, 468 U.S. 559, 563 (1984)). Moreover, this
court has recognized that where ‚sentences are within the
statutory limits, they cannot be considered clearly excessive.‛
Moreau, 2011 UT App 109, ¶ 9; see also State v. Russell, 791 P.2d
188, 193 (Utah 1990) (concluding that a sentence was not ‚clearly
excessive‛ because it ‚did not exceed that prescribed by law‛);
cf. Dorszynski v. United States, 418 U.S. 424, 431 (1974)
(recognizing that so long as ‚a sentence is within the limitations
set forth in the statute under which it is imposed, appellate
review is at an end‛). Certainly, the large quantity of
methamphetamine Monzon was transporting for eventual sale in
Utah and the potential harm that would result from its
distribution are legitimate sentencing considerations. It follows
that the court’s commentary on the quantity of
methamphetamine trafficked by Monzon did not convert an
otherwise appropriate sentence into one constituting an abuse of
discretion.

¶14 Monzon’s second contention is that the State breached the
plea agreement and that the district court abused its discretion
because it ‚improperly considered the State’s charging decision

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State v. Monzon

in order to aggravate the sentence.‛ We first address Monzon’s
argument that the State breached the plea agreement.

¶15 Monzon contends that the State breached the plea
agreement by ‚asking the court to impose a more serious
sanction based on its own agreement—to not file more serious
charges.‛ Monzon relies on ‚one, highly improper‛ statement
made by the prosecutor representing the State during Monzon’s
second sentencing hearing:

Frankly, if the Court sends him—gives him 180
days, that’s all the more incentive why the State
would not bring major drug cases through here. If
this case was taken federal, he would be doing a
minimum mandatory at least of five years, at least
and maybe more. And, again, he’s indicated to you
his motivation. You know this isn’t somebody who
is struggling with a drug addiction. This is
somebody who simply picked up five pounds in
Arizona and drove it up here and got caught.

I just think that there’s a message that is sent
to the community. And the message if you send
him to jail or you put him on probation is hey take
your chance. If you get caught, you’re going to do a
little jail time and then we’re going to put you on
probation. [That] just isn’t an adequate deterrent
for this type of offense.

Monzon argues that the prosecutor’s statement constituted a
breach of the plea agreement and that it was improper because it
‚told the court that if it complied with *AP&P’s+
recommendation, [the State] would not bring cases through State
courts.‛

¶16 We agree with Monzon that the prosecutor’s statement
was, in part, an improper attempt to influence the district court’s
sentencing decision with an irrelevant argument. However, in

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State v. Monzon

the plea agreement, the State agreed only ‚not to refer *the+ case
federally,‛ and the State kept that promise. 4 Although Monzon
contends that the prosecutor’s statement at sentencing ‚was
entirely inconsistent with *the State’s+ agreement to reduce
[Monzon’s] potential liability,‛ that agreement did not constrain
the State’s ability to recommend any sentence, including a prison
sentence. Consequently, the State did not breach the plea
agreement by recommending prison time.

¶17 Monzon also contends that the district court relied on the
prosecutor’s improper statement in sentencing him to prison. To
show that a district court relied on irrelevant information at
sentencing, a defendant must show ‚(1) evidence of reliance,
such as an affirmative representation in the record that the judge
actually relied on the specific information in reaching her
decision, and (2) that the information [the judge] relied upon
was irrelevant.‛ State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d 985.
‚*A+n appellate court cannot presume there is evidence of
reliance from a silent record or mere introduction of potentially
irrelevant information.‛ Id.

¶18 According to Monzon, the district court relied on the
prosecutor’s statement, as evidenced by its declaration during
the second sentencing hearing:

If you choose to go back in that lifestyle and do the
same thing, then you run the risk of next time
perhaps in a different state they won’t take the
view that this prosecutor’s office took and they will
take you federally where you’ll do significantly
much more time than you’ll do, I think, in this case.
So I think the break that you got was they didn’t
take you federally, but I do think a prison
recommendation is appropriate.

4. Monzon concedes that ‚the prosecutor did, in fact, not refer
the charges federally.‛

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State v. Monzon

Monzon argues that the district court’s declaration demonstrates
that ‚the court determined that Mr. Monzon got a ‘break’ from
the State’s failure to refer the charge and that as a result, he
deserved a harsher sentence *in+ this case.‛

¶19 We do not agree with Monzon that the district court’s
declaration indicates that the court was influenced by the
prosecutor’s statement in sentencing Monzon to prison. To the
contrary, we read the district court’s words to Monzon as an
acknowledgment of the benefit that Monzon received from the
State’s agreement to not refer the charges federally. Moreover,
the record indicates that the prosecutor’s statement had no effect
on the district court’s sentencing decision; the court made the
complained-of declaration after it had already sentenced Monzon
to prison. And the district court in no way indicated that it
viewed the prosecutor’s statement as a reason to impose a
harsher sentence upon Monzon.

¶20 Thus, although we agree with Monzon that the
prosecutor’s statement was inappropriate, Monzon has failed to
demonstrate that the district court relied on it in sentencing him
to prison. ‚Because evidence of reliance must be more than the
mere presentation of potentially irrelevant information,‛ Moa,
2012 UT 28, ¶ 40, we reject Monzon’s argument on this point.

¶21 Third, Monzon argues that the district court abused its
discretion when it ‚failed to consider the substantial evidence in
mitigation, including the lack of criminal history, strong
employment record, family support and impact incarceration
would have on [Monzon’s] wife and children.‛ As a general rule,
Utah courts ‚presume that the district court made all the
necessary considerations when making a sentencing decision.‛
Moa, 2012 UT 28, ¶ 35. Moreover, Utah courts ‚traditionally
afford[] trial courts wide latitude and discretion in sentencing,
recognizing that they are best situated to weigh the many
intangibles of character, personality and attitude, of which the
cold record gives little inkling.‛ State v. Killpack, 2008 UT 49,

20141007-CA 9 2016 UT App 1
State v. Monzon

¶ 58, 191 P.3d 17 (citations and internal quotation marks
omitted).

¶22 Here, the record demonstrates that the district court
considered all relevant circumstances before imposing sentence.
To begin with, during Monzon’s first sentencing hearing,
defense counsel highlighted several mitigating circumstances,
including Monzon’s lack of criminal history,5 the fact that ‚he’s
noted as a low risk,‛ the fact that he had been continuously
employed, and ‚his great employment and family relationships
and things of [that] nature that would help to counteract sort of
the aggravating factor of the amount of methamphetamine.‛ The
PSI Report also addressed these factors and further stated that
Monzon ‚was extremely cooperative and willing to aid in this
case to include testifying against the co-defendants.‛
Additionally, the district court received fifteen letters of support
from Monzon’s family members, friends, and employers, all
urging the court to be lenient in its sentencing decision. These
letters addressed, among other things, Monzon’s volunteer
work, his work ethic, his relationships with his wife and
children, the fact that he was the sole financial provider for his
family, his honesty, and the negative effects that a prison
environment could have on Monzon. And at the conclusion of
the first sentencing hearing, the district court continued
sentencing for a week ‚to think about it‛ and ‚consider where it
is that [Monzon] ought to be‛ in light of the differing

5. The State notes that the PSI Report includes one aggravating
circumstance—‚*e+stablished instances of repetitive criminal
conduct‛—but that this alleged aggravating circumstance was
not discussed at either sentencing hearing. Rather, defense
counsel represented to the district court that Monzon ‚has no
criminal history whatsoever.‛ Somewhat inconsistently, the PSI
Report also states that ‚*t+he current offense is *Monzon’s+ first
contact with the criminal justice system.‛ Nonetheless, there is
no indication in the record that the district court believed
Monzon had a prior criminal record.

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State v. Monzon

recommendations by defense counsel, AP&P, and the State.
Because the mitigating evidence that Monzon believes the
district court should have considered was discussed during the
first sentencing hearing, or was set forth in the PSI Report or in
Monzon’s letters of support, we presume that the district court
considered that information prior to sentencing. See State v.
Finchum, 2012 UT App 331, ¶ 4, 290 P.3d 938 (per curiam).

¶23 Nevertheless, Monzon contends that ‚*t+here is not a
single statement in the record to show the court considered the
impact incarceration would have on Mr. Monzon’s family,
despite the claim from numerous individuals that a prison
commitment would seriously jeopardize not only his
relationship with his wife and children, but his ability to support
and take care of them.‛ However, Monzon’s letters of support
discussed the impact of Monzon’s incarceration on his family.
And even though the district court did not specifically address
the issue on the record, ‚we do not require that sentencing
judges articulate or acknowledge the factors they consider in
imposing sentences.‛ Moa, 2012 UT 28, ¶ 41. Accordingly, we
reject this argument.

¶24 Moreover, the district court alluded to two aggravating
circumstances that apparently, in its opinion, outweighed the
mitigating circumstances highlighted by defense counsel. See
Killpack, 2008 UT 49, ¶ 59 (‚*S+everal mitigating circumstances
claimed by a defendant may be outweighed by a few egregious
aggravating factors.‛). First, the district court was clearly
troubled by the amount of methamphetamine that Monzon had
transported: ‚I mean five pounds of methamphetamine. It’s like
you can’t even wrap your mind around that one when you start
thinking how that breaks down and when they use a cutting
agent and what that transfers to in terms of how far that spreads
into our community.‛ Second, the court placed particular
emphasis on the fact that Monzon had so readily turned to crime
to support his family, noting that ‚there are a lot of people who
need money and what they do is they go out and get very very
difficult very physically challenging jobs that don’t pay a lot, but

20141007-CA 11 2016 UT App 1
State v. Monzon

they’ll go out and get two and three jobs if they have to. . . .
They’ll do whatever they can to support their family and not
break the law.‛ Monzon, on the other hand, ‚was motivated by
simple gain or greed,‛ and he was willing to transport five
pounds of methamphetamine without regard to the ‚ripple
effect‛ of his actions.

¶25 ‚An appellate court may only find abuse *of discretion in
sentencing] if it can be said that no reasonable [person] would
take the view adopted by the *district+ court.‛ State v. Valdovinos,
2003 UT App 432, ¶ 14, 82 P.3d 1167 (second alteration in
original) (citation and internal quotation marks omitted). Here,
Monzon has failed to demonstrate that no reasonable person
would have imposed the sentence that was imposed in this case.
See id. The record indicates that the district court considered all
of the relevant mitigating and aggravating factors in imposing
sentence, and Monzon’s sentence is within statutory limits.
Accordingly, we conclude that the district court did not abuse its
discretion in sentencing Monzon to one to fifteen years in prison.

¶26 Finally, Monzon contends that defense counsel was
ineffective for failing ‚to argue the specific issues raised in
*Monzon’s brief on appeal+, such as the evidence in mitigation,
the effect incarceration would have on [his] children and that
prison would not benefit Mr. Monzon,‛ and when she ‚failed to
object to the prosecutor’s improper comments.‛

¶27 ‚An ineffective assistance of counsel claim raised for the
first time on appeal presents a question of law.‛ State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162. To prove ineffective assistance of
counsel, Monzon must show ‚that counsel’s performance was
deficient‛ and ‚that the deficient performance prejudiced the
defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984).
‚Because both deficient performance and resulting prejudice are
requisite elements of an ineffective assistance of counsel claim, a
failure to prove either element defeats the claim.‛ State v. Hards,
2015 UT App 42, ¶ 18, 345 P.3d 769.

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State v. Monzon

¶28 As explained above, the record suggests that the district
court considered the mitigating evidence Monzon highlights
on appeal. See supra ¶¶ 22–23. In addition, we have already
concluded that the prosecutor’s statement, while inappropriate,
did not amount to a breach of the plea agreement, and there
is no indication that the district court relied on the prosecutor’s
statement in imposing sentence. See supra ¶¶ 16, 19. Therefore,
any objection by defense counsel to the alleged errors
would have been futile, and the ‚*f+ailure to raise futile
objections does not constitute ineffective assistance of counsel.‛
State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Consequently,
Monzon’s ineffective-assistance claim necessarily fails.

¶29 Affirmed.

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