United States v. Montoya, 10th Cir. (2011)

FILED
United States Court of Appeals

Tenth Circuit
June 10, 2011

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 10-1285
(D. of Colo.)
JUNIOR RAY MONTOYA,
(D.C. No. 05-CR-141-MSK)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before OBRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Junior Ray Montoya, a federal prisoner, appeals his sentence on two

grounds. First, he contends his sentencing enhancement on the basis of a prior
conviction was constitutionally unsound. And second, Montoya asserts the
district court committed procedural error in improperly calculating the advisory
Sentencing Guidelines range.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Montoyas counsel, finding no meritorious basis for an appeal, moves to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Having
jurisdiction under 28 U.S.C. 1291, we GRANT counsels motion to withdraw
and DISMISS Montoyas appeal.
I. Background
Montoya was arrested for his role in a conspiracy to distribute crack
cocaine. He was charged with one count of conspiracy to distribute a controlled
substance, in violation of 21 U.S.C. 846, and two counts of distribution of a
controlled substance, in violation of 21 U.S.C. 841(a)(1). Following two
separate jury trials, Montoya was convicted of all three counts. He was initially
sentenced to 240 months incarceration for each count, to run concurrently.
Montoya appealed his conviction and sentence in United States v.
Hutchinson, 573 F.3d 1011 (10th Cir. 2009). He raised several claims of error,
including an argument that he improperly received a sentencing enhancement on
the conspiracy count based on the district courts finding of a prior conviction.
Montoya contended the existence of a prior conviction is a fact that must be
alleged in the indictment and proven to a jury. Another panel of this court
rejected this argument, observing that the Supreme Courts decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), permits the fact of a
prior conviction to be found by the court instead of a jury for sentencing
-2-
purposes. Hutchinson, 573 F.3d at 1032 n.4. The panel ultimately affirmed
Montoyas conviction but remanded for resentencing on the distribution counts.
At resentencing, Montoya acknowledged that our panel opinion rejected his
challenge to the sentencing enhancement, but he preserved the issue for future
appeal. He also objected for the first time to the district courts consideration of
the drugs sold by co-conspirators as relevant conduct for the distribution
counts. The district court found no merit to this argument. As such, the relevant
conduct included the sale of 4.5 kilograms of crack cocaine, resulting in a
guidelines range of 135 to 168 months incarceration. But after consideration of
the factors set forth in 18 U.S.C. 3553(a), the court chose to impose a
downward variance, resulting in a sentence of 21 months incarceration for each
distribution count, to run concurrently with the 240 month sentence for the
conspiracy count.
Following Montoyas timely notice of appeal, his counsel filed an Anders
brief explaining that, after reviewing the record and completing the necessary
research, he determined the appeal had no merit. Montoyas counsel requested
permission to withdraw. Montoya was granted additional time to respond to the
brief. After the expiration of two deadlines, Montoya filed a letter asking that we
appoint new counsel to represent him in this appeal and grant him additional time
for the new counsel to file an addendum to the Anders brief. The government
filed a notice of its intention not to file an answer brief.
-3-
II. Discussion
Under Anders v. California, 386 U.S. 738, defense counsel may request
permission to withdraw where counsel conscientiously examines a case and
determines that any appeal would be wholly frivolous. United States v.
Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If counsel makes that
determination, he may submit a brief to the client and the appellate court
indicating any potential appealable issues based on the record. Id. The client
may also submit arguments to the court in response. We must then fully examine
the record to determine whether defendants claims are wholly frivolous. Id. If
we find they are, we will dismiss the appeal.
The Anders brief submitted by Montoyas counsel raises two issues on
appeal. First, Montoya reasserts his challenge to the sentencing enhancement for
a prior conviction. Second, he contends the district court erred in calculating the
advisory Sentencing Guideline range.
A. Sentencing Enhancement for the Conspiracy Conviction
Montoya once again argues the sentencing enhancement was improper,
because the existence of his prior conviction was not determined by a jury. But,
as discussed above, a panel of this court has already ruled against Montoya on
this issue.
[T]he decision of the appellate court establishes the law of the case and
ordinarily will be followed by both the trial court on remand and the appellate
-4-
court in any subsequent appeal. Rohrbaugh v. Celotex Corp., 53 F.3d 1181,

1183 (10th Cir. 1995). This doctrine is based on sound public policy that
litigation should come to an end and is designed to bring about a quick resolution
of disputes by preventing continued re-argument of issues already decided.
United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998) (quotation
omitted). We will therefore not disturb the original panels decision unless the
evidence on a subsequent trial was substantially different, controlling authority
has since made a contrary decision of the law applicable to such issues, or the
decision was clearly erroneous and would work a manifest injustice. United
States v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991) (quotation omitted).
We find the circumstances at hand do not justify a departure from the law
of the case. The panels decision was not erroneous; it is clear that AlmendarezTorres forecloses Montoyas claim. See United States v. Booker, 543 U.S. 220,
244 (2005) (reaffirming that [a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty . . . must be admitted by the defendant or proved to
a jury beyond a reasonable doubt (emphasis added)); see also Hunter v.
Werholtz, 505 F.3d 1080, 1082 (10th Cir. 2007) (In Almendarez-Torres, the
Court noted that recidivism . . . is a traditional, if not the most traditional basis
for a sentencing courts increasing an offenders sentence. As such, the
government need not charge the fact of an earlier conviction in the indictment.
-5-
(quotation and citation omitted)). And there has been no intervening case law
undermining the holding of Almendarez-Torres since the panel issued its decision.
We therefore defer to the original panels findings and affirm the sentencing
enhancement.
B. Sentencing Guidelines Range for the Distribution Convictions
Montoya also asserts the district court erred in calculating the guidelines
range for his distribution sentences. He raises two specific claims of error.
1. Determination of Relevant Conduct
First, Montoya contends the district court improperly considered the drugs
sold by his co-conspirators as relevant conduct in calculating the guidelines
range for the distribution counts.
Ordinarily, the sentencing courts application of the Guidelines is subject to
de novo review. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
But because Montoya failed to raise this issue in the original sentencing hearing,
we review only for plain error. United States v. TrujilloTerrazas, 405 F.3d 814,
817 (10th Cir. 2005). To establish plain error, Montoya must demonstrate the
district court (1) committed error, (2) the error was plain, and (3) the plain error
affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002).
If these factors are met, we may exercise discretion to correct the error if (4) it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 63132.
-6-
We need not consider whether the district courts calculation of the

guidelines range was erroneous, because Montoyas claim fails on the third prong
of plain error review. That is, even if the calculation was improper, the error did
not affect Montoyas substantial rights.
As discussed above, the district court rejected Montoyas argument that the
actions of his co-conspirators should not be taken into account in calculating his
distribution sentences. Consideration of these additional drug sales resulted in a
guidelines range of 135 to 168 months incarceration. But the court chose to
downwardly vary and impose a sentence of 21 months incarceration for each
distribution count, to run concurrently with the 240-month sentence for the
conspiracy count.
This lowered sentence was consistent with the guidelines range that would
have applied if the court had adopted Montoyas argument and excluded the
conduct of co-conspirators. In addition, because the distribution sentences were
set to run concurrently to the 240-month conspiracy sentence, this calculation was
largely an academic exercise; the distribution counts did not have the practical
effect of increasing Montoyas sentence at all. Thus, even if the courts
calculation of the guidelines range was erroneous, it did not have any impact on
Montoyas sentence.
-7-
2. Choice of Guidelines Manual

Montoya makes a second argument that the district court erred in
calculating the guidelines range. He asserts the district court violated the ex post
facto clause by applying a version of the Guidelines that post-dated his criminal
acts. Again, because Montoya did not raise this claim below, we review only for
plain error. TrujilloTerrazas, 405 F.3d at 817.
A sentencing court is generally required to apply the Guidelines that are in
effect on the date the defendant is sentenced. United States v. Gerber, 24 F.3d
93, 95 (10th Cir. 1994); see also USSG 1B1.11(a). However, the ex post facto
clause bars the sentencing court from retroactively applying an amended guideline
provision when that amendment disadvantages the defendant. United States v.
Thompson, 518 F.3d 832, 870 (10th Cir. 2008) (quotation omitted); see also
USSG 1B1.11(b)(1).
Montoya notes the district court used a post-2004 version of the Guidelines,
resulting in a guidelines range of 135 to 168 months incarceration for each
distribution count. But, he points out, application of the version in place at the
time that he sold drugs would have resulted in a range of 92 to 115 months. The
district courts use of the more recent version would therefore have disadvantaged
Montoya if it had imposed a sentence within the recommended range.
However, as discussed above, the district court chose to impose a
downward variance and sentenced Montoya to only 21 months incarceration for
-8-
each count. Because this sentence is far below the range recommended by either
version of the Guidelines, Montoya suffered no disadvantage. Montoya is thus
unable to show a sentencing error. We further note that this claim also fails to
satisfy the third prong of plain error review, as Montoya cannot establish that the
district courts use of the more recent Guidelines had any effect on the length of
his sentence. We therefore affirm Montoyas distribution sentences.
III. Conclusion
We conclude no meritorious appellate issue exists. Accordingly, we
GRANT counsels motion to withdraw and DISMISS Montoyas appeal.
Montoyas motion requesting appointment of new counsel and time for additional
briefing is DENIED.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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FILED

United States Court of Appeals

June 10, 2011

UNITED STATES OF AMERICA,

JUNIOR RAY MONTOYA,

(D.C. No. 05-CR-141-MSK)

ORDER AND JUDGMENT *

Before OBRIEN, McKAY, and TYMKOVICH, Circuit Judges. **

Junior Ray Montoya, a federal prisoner, appeals his sentence on two

Montoyas counsel, finding no meritorious basis for an appeal, moves to

court in any subsequent appeal. Rohrbaugh v. Celotex Corp., 53 F.3d 1181,

We need not consider whether the district courts calculation of the

2. Choice of Guidelines Manual

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