United States v. Montes-Fosse, 053116 FED1, 15-1779

Docket Nº:15-1779
Opinion Judge:TORRUELLA, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Appellee, v. BRIAN ERICK MONTES-FOSSE, Defendant, Appellee.
Attorney:Lydia Lizarríbar-Masini, on brief for appellant. Susan Z. Jorgensen, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
Judge Panel:Before Torruella, Selya, and Barron, Circuit Judges.
Case Date:May 31, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

BRIAN ERICK MONTES-FOSSE, Defendant, Appellee.

No. 15-1779

United States Court of Appeals, First Circuit

May 31, 2016

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, HON. FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE.

Lydia Lizarríbar-Masini, on brief for appellant.

Susan Z. Jorgensen, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

Before Torruella, Selya, and Barron, Circuit Judges.

TORRUELLA, CIRCUIT JUDGE.

After Defendant-Appellant Brian Erick Montes-Fosse ("Montes") pled guilty to aiding and abetting the robbery of a postal worker, the United States District Court for the District of Puerto Rico sentenced him to a term of 51 months' imprisonment and 3 years' supervised release. During the sentencing hearing, the district court determined that Montes should receive a sentencing enhancement under the United States Sentencing Guidelines (the "Guidelines") because a firearm was brandished or possessed during the robbery. The district court also found that Montes was not entitled to a downward adjustment for playing a minor role in the offense. Montes now appeals his sentence. We affirm.

I.

When a defendant appeals after a guilty plea, "we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentencing investigation report (PSI Report), and the record of the disposition hearing." United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

On June 30, 2014, the victim -- a United States Postal Service ("USPS") worker -- was delivering mail in Mayagüez, Puerto Rico. The victim was seated in her USPS vehicle when Alipio Soto-Montalvo ("Soto") approached. With a gun in hand, Soto demanded that the victim turn over the packages in her vehicle. After she placed several parcels on the front seat, Soto took two or three of the packages and fled the scene on foot.

Montes had driven Soto to the scene. Montes would later acknowledge having "taken [Soto] earlier the day to the place where the robbery occurred for the purpose of committing that robbery." At some point after the robbery, a witness at the housing project where both men lived overheard them discussing the crime and "warning of a heavy police presence" in the area.1

Montes and Soto were arrested in October and September 2014, respectively. Montes pled guilty to one count of aiding and abetting the robbery of a USPS employee under 18 U.S.C. § 2114(a) and § 2, and Soto to aiding and abetting the carrying, using, and brandishing of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) and § 2.

Under Montes's written plea agreement, Montes and the Government agreed to the following Guidelines recommendations: Montes would receive a base offense level of 20 under U.S.S.G. § 2B3.1(a), with a 2-level increase because post office property was taken under U.S.S.G. § 2B3.1(b)(1); a 5-level increase because a firearm was brandished or possessed during the robbery under U.S.S.G. § 2B3.1(b)(2)(C); a 3-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1; and a...

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