United States v. Montoya-Rosado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50571
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRYAN JESUS MONTOYA-ROSADO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-60-1

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

Bryan Jesus Montoya-Rosado appeals his sentence following his guilty
plea conviction for aiding and abetting the importation of marijuana and aiding
and abetting the possession of marijuana with intent to distribute. He
contends that the district court erred by sentencing him less than 35 days after
disclosure of his presentence report (PSR). Under Federal Rule of Criminal
Procedure 32(e)(2), the probation office must disclose the PSR to the defendant

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2020

Lyle W. Cayce
Clerk
Case: 19-50571 Document: 00515375507 Page: 1 Date Filed: 04/08/2020

No. 19-50571
2
at least 35 days prior to sentencing unless the defendant waives the minimum
notice period.
Because Montoya-Rosado failed to object on this basis in the district
court, we review for plain error. See United States v. Esparza-Gonzalez, 268
F.3d 272, 274 (5th Cir. 2001). Even if the district court erred, Montoya-Rosado
fails to demonstrate a reasonable probability that he would have received a
lower sentence; thus, he fails to show that any error affected his substantial
rights. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016).
AFFIRMED.
Case: 19-50571 Document: 00515375507 Page: 2 Date Filed: 04/08/2020