United States v. Jose Luis Montes

151 F. App'x 846
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 27, 2005
Docket05-10575; D.C. Docket 04-00172-CR-ORL-18-DAB
StatusUnpublished

This text of 151 F. App'x 846 (United States v. Jose Luis Montes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Luis Montes, 151 F. App'x 846 (11th Cir. 2005).

Opinion

PER CURIAM.

Jose Luis Montes directly appeals his 60-month sentence for possession with intent to manufacture and manufacturing 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(vii). Montes argues on appeal that the government breached its promise in the parties’ plea agreement not to oppose sentencing at the low end of Montes’s guideline range by informing the district court that Montes did not qualify for sentencing under the safety-valve provisions in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Montes further argues that the district court committed reversible error in concluding that he was not eligible for safety-valve relief. For the reasons set forth more fully below, we affirm.

A federal grand jury returned an indictment, charging Montes with the above-referenced possession offense, along with conspiracy to manufacture and possess with intent to manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(vii), and 846. Montes subsequently entered into a written plea agreement with the government, in which he promised to plead guilty to the possession charge, in exchange for the government agreeing to dismiss the conspiracy charge.

As part of this agreement, the government also promised that:

At the time of sentencing, and in the event that no adverse information is received suggesting such a recommendation to be unwarranted, the United States will not oppose the defendant’s request to the [cjourt that the defendant receive a sentence at the low end of the applicable guideline range, as calculated by the [cjourt. The defendant understands that this recommendation or request is not binding on the [cjourt, and if not accepted by the [cjourt, the defendant will not be allowed to withdraw from the plea.

Montes, in turn, acknowledged that he was entering into the agreement and pleading guilty freely and voluntarily, without reb-anee on any promises not contained in the agreement, and without threats, force, intimidation, or coercion.

Montes also admitted to the following facts:

On or about July 27, 2004 ... Montes, did knowingly and intentionally possess and control a hydroponic marihuana grow facility in a residential home. Said *849 residential home is located at 912 Quinn Street Southeast, Palm Bay, Brevard County, Florida. The purpose of the facility was to manufacture marihuana. The total number of marihuana plants that [Montes] is responsible for is 151.

Finally, this plea agreement contained a sentence-appeal waiver, whereby Montes agreed that, assuming the government did not appeal, he was waiving his right to appeal his sentence, directly or collaterally, including a challenge to the applicability of the safety-valve provisions contained in § 3558(f) and § 5C1.2, “except in the following situations: (a) an upward departure by the sentencing judge; (b) a sentence above the statutory maximum; or (c) a sentence in violation of other law apart from the sentencing guidelines.”

During Montes’s plea colloquy, he again confirmed that the plea agreement contained the entire agreement between himself and the government. Montes then informed the magistrate judge who was conducting the hearing that, due to his lack of a criminal history, he likely would qualify for safety-valve relief and, thus, be eligible for sentencing below his, otherwise applicable, mandatory minimum statutory sentence. The government responded that it did not have all of the information necessary to determine whether Montes qualified for safety-valve relief, and that the parties had no agreement concerning the applicability of this relief. Montes replied that he (1) had mentioned safety-valve relief to clarify for the record that he was not certain if he would qualify for it, and (2) understood that the parties had no agreements that were not contained in the plea agreement.

The magistrate also reviewed with Montes during this plea colloquy his waiver of his right to appeal his sentence, including explaining that he was waiving his right to attack his sentence directly or collaterally, and the exceptions under which Montes still could appeal his sentence. Montes, in turn, agreed that he was freely and voluntarily waiving this appellate right. 1 On the magistrate’s recommendation, the district court ultimately accepted Montes’s plea and adjudicated him guilty.

A probation officer then prepared a pre-sentence investigation report (“PSI”), which included that, in July 2004, a confidential informant (“Cl”) informed agents with the Drug Enforcement Administration (“DEA”) about a marijuana-growing operating that the Cl had seen in Montes’s home in Palm Bay, Florida. The DEA agents obtained and executed a search warrant for Montes’s home. During this search, the DEA agents recovered from the garage and other rooms 151 marijuana plants and an extensive hydroponic-marijuana-cultivation facility. Based on information from the Cl, along with the DEA agents’ personal observations of other persons entering and leaving Montes’s home, including delivering suspected marijuana-growing supplies on one occasion, the agents also determined that Montes had associated with other persons involved with growing marijuana. Moreover, the agents discovered in the homes of these other marijuana growers similar hydroponic-marijuana-cultivation facilities.

The probation officer concluded that Montes was responsible for the 151 marijuana plants that DEA agents recovered from his home. The officer, therefore, *850 recommended that Montes’s offense level be set at 16, pursuant to U.S.S.G. § 2Dl.l(c)(12) (the guideline for offenses involving at least 10, but less than 20 kilograms of marijuana). The probation officer also recommended a three-level adjustment of this offense level, pursuant to U.S.S.G.' § 3El.l(a), for acceptance of responsibility. With an adjusted offense level of 13, and a criminal history category of 1, Montes’s resulting guideline range was 12 to 18 months’ imprisonment. However, because Montes’s mandatory minimum statutory sentence was 60 months’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(B), this higher sentence became his guideline sentence, pursuant to U.S.S.G. § 5Gl.l(c)(2). 2

Montes objected to, among other things, the probation officer’s failure to recommend sentencing under the safety-valve provisions. Montes argued that the government had agreed during the plea colloquy that Montes should receive this relief if he qualified for it. The probation officer responded that Montes had not yet provided a statement that was necessary for him to meet the criteria for the application of § 5C1.2 relief.

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Bluebook (online)
151 F. App'x 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-luis-montes-ca11-2005.