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United States v. Montalvo-Febus

United States Court of Appeals, First Circuit

July 12, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JOSE ELI MONTALVO-FEBUS, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

          Rafael 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.

          Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         This is 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 supervised release.

         For the first time on appeal, Montalvo argues that his sentence is procedurally and substantively unreasonable. Finding no error, we affirm his sentence.

         I.

         Since 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.

         In 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.

         On 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."

         On June 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.

         Montalvo 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."

         The PSR 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 ...


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