FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S.
F. Castro Lang on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on
brief for appellee.
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
a sentencing appeal. Jose Eli Montalvo-Febus pleaded guilty
to attempted possession of child pornography, 18 U.S.C.
§§ 2252A(a)(5)(B), (b)(2), admitting he attempted
to take illicit photographs of a naked fourteen-year-old
female victim. In exchange for the guilty plea, the
government agreed to dismiss two charges of transportation of
this minor with the intent to engage in criminal sexual
activity, which carried mandatory minimum sentences of ten
years' imprisonment. Id. § 2423(a).
Montalvo was sentenced to an upwardly variant sentence of
eighty-four months of imprisonment, followed by ten years of
first time on appeal, Montalvo argues that his sentence is
procedurally and substantively unreasonable. Finding no
error, we affirm his sentence.
Montalvo pleaded guilty, we draw the facts from the plea
agreement, the presentence investigation report (PSR), and
the sentencing hearing transcript. See United States
v. Colón-Rosario, 921 F.3d 306, 309
(1st Cir. 2019). Montalvo first met the victim in Salinas,
Puerto Rico, around August 2011, and began sending her
messages. The victim told Montalvo that she was thirteen
years old, and he told her that "in love there was no
age," that he loved her, and that she should not tell
her mother that they were talking to each other. Montalvo
also began visiting the victim at her school.
2012, Montalvo twice picked the victim up from a friend's
house and drove her to a secluded and poorly lit area to
engage in sexual activity. On approximately eight other
occasions that year, Montalvo picked the victim up from a
chapel near her home and drove her to a motel to engage in
sexual activity, before driving her home. Montalvo also
requested and attempted to take naked photographs of the
victim, but she did not permit him to do so.
October 26, 2012, the victim's family obtained a
protective order against Montalvo, which, after an extension
was granted, lasted until November 30, 2015. The family had
sought the protective order after Montalvo called the victim
and sent her text messages asking when she would be
"dropping the charges."
16, 2015, Montalvo was indicted in federal district court. On
May 10, 2018, a federal indictment was filed in a separate
case charging Montalvo with two counts of transportation of a
minor with the intent to engage in any criminal sexual
activity, in violation of 18 U.S.C. § 2423(a), which
covered the same conduct in the 2015 indictment, but with
corrected dates for the offenses. On May 15, 2018, the
government also filed an information charging Montalvo with
one count of attempted possession of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
(b)(2), in connection with Montalvo's attempt to take
photographs of the naked victim.
pleaded guilty to the attempted possession of child
pornography charge. In the plea agreement, the parties agreed
that Montalvo's base offense level was eighteen. The plea
agreement stipulated to a two-level enhancement because the
offense involved the use of a computer or interactive
computer service and a three-level reduction for acceptance
of responsibility, for a total offense level of seventeen.
The parties did not stipulate to a criminal history category.
The parties stipulated that Montalvo "may argue for a
non-guideline sentence of 60 months, while the Government
reserves the right to argue for a non-guideline sentence of
up to 108 months of imprisonment, regardless of
[Montalvo's] criminal history category."
calculated a total offense level of seventeen. The PSR stated
that Montalvo had three 2010 Puerto Rico state convictions
for: possession of a controlled substance (cocaine), carrying
and use of firearms without a license, and manufacture,
distribution, possession, and use of ammunition. For these
three convictions, Montalvo was sentenced to a total of
forty-four consecutive years of probation. Montalvo committed
the instant offense while on probation for these prior
convictions. The PSR stated that Montalvo had a criminal
history category of III, so the applicable guideline range