     Case: 14-11181      Document: 00513323421         Page: 1    Date Filed: 12/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-11181                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 29, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

TERRANCE MONTGOMERY,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-93


Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Terrance Montgomery (“Defendant”) appeals his jury trial conviction and
sentence for conspiracy to possess and possession with intent to distribute a
controlled substance in violation of 21 U.S.C. §§ 841 and 846. Defendant was
indicted as part of an alleged cocaine distribution ring operating in the Fort
Worth area, and the primary question at trial was whether Defendant
possessed distributable quantities of cocaine for resale or merely small


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-11181
quantities for personal use. The government sought to prove that Defendant
possessed distributable quantities of cocaine through the testimony of (1)
Johnny Sosa (“Sosa”), the lead officer investigating the drug ring of which
Defendant was allegedly a member, and (2) Francisco Favela (“Favela”), a drug
dealer who faced separate criminal charges and had agreed to cooperate with
the government (although he had not entered into a plea agreement). Sosa was
designated as an expert and testified that pursuant to a wire-tap, he heard
numerous phone calls in which Defendant asked Favela for three to four
“bottles of barbecue sauce.” Sosa further testified that he interpreted “bottles
of barbecue sauce” to mean “ounces of cocaine.” Favela corroborated the
testimony of Sosa that he distributed cocaine to Defendant in ounce quantities,
and he more generally corroborated the view that Defendant sold the drugs he
received from Favela as part of a larger conspiracy. When asked about his
decision to testify for the government, Favela agreed that he hoped to receive
“some leniency in sentencing” for his own crimes but denied that the
government had “made [him] any promises about sentencing.”
      Defendant was found guilty and sentenced to concurrent terms of 360
and 240 months imprisonment. In reaching a decision on sentencing, the
district court relied in part on the Presentencing Report’s (“PSR”) conclusion
that Defendant had two prior adult convictions for crimes of violence, which
qualified him as a “career offender” under federal sentencing guidelines and
increased his criminal history category from V to VI.
      Defendant now argues that (1) the government violated his due process
right to a fair trial by failing to correct misleading testimony regarding
Favela’s incentives to testify as a government witness; (2) Sosa’s testimony
that “bottles of barbecue sauce” referred to “ounces of cocaine” was improper
opinion testimony; and (3) the district court erred when it relied on the PSR in


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                                  No. 14-11181
finding that Defendant was a “career offender” under federal sentencing
guidelines. We address each argument in turn.
1. Favela’s Testimony
      Defendant first contends that the government violated his due process
right to a fair trial by failing to correct misleading testimony from Favela about
his incentives for testifying as a government witness. Specifically, Defendant
objects to Favela’s testimony regarding his hope that his cooperation would
lead “the Judge” to give him “some leniency in sentencing,” even though the
government “[had] not made [him] any promises” about the length of his
sentence. Defendant claims that this testimony misled the jury by concealing
the possibility that the government could file a motion for downward departure
(a “5K motion”) at sentencing in his separate criminal case if it was satisfied
with his testimony against Defendant. As such, Defendant argues that the
government should have corrected Favela’s testimony in order to make the jury
aware of a potential 5K motion, and its failure to do so was a violation of
Defendant’s due process right to a fair trial under Napue v. Illinois, 360 U.S.
264 (1959), and Giglio v. United States, 405 U.S. 150 (1972). We disagree.
      We have previously explained that reversal of a conviction based on
uncorrected false testimony under Napue “is proper only if (1) the statements
in question are shown to be actually false; (2) the prosecution knew that they
were false; and (3) the statements were material.” United States v. O’Keefe, 128
F.3d 885, 893 (5th Cir. 1997) (citing United States v. Blackburn, 9 F.3d 353,
357 (5th Cir. 1993)). Defendant’s claim falters on the first point, as there is
nothing in the record to suggest that Favela’s testimony was actually false. To
the contrary, the questioning and testimony of Favela conveyed precisely the
situation that existed: Favela had agreed to testify in part because he hoped
his cooperation would lead to leniency at sentencing, but the government had
not made him any promises about his sentence. There is no indication that the
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                                       No. 14-11181
Government made any overtures about, or even mentioned, a 5K motion to
Favela. We accordingly reject Defendant’s first argument.
2. Sosa’s Testimony
       Defendant next claims that Sosa’s specific testimony with respect to his
interpretation of the phrase “bottles of barbecue sauce” was inadmissible as
either expert or lay opinion testimony. Because Defendant failed to preserve
this argument in the district court, our review is only for plain error. United
States v. Salazar, 743 F.3d 445, 448 (5th Cir. 2014). 1 “To demonstrate
reversible plain error,” Defendant must “show that (1) there is error; (2) it is
plain; and (3) it affected his substantial rights.” Gracia v. United States, 522
F.3d 597, 600 (5th Cir. 2008). Defendant cannot meet this burden. First, this
court has recognized (and recently reaffirmed) that at the very least, a police
officer familiar with the facts of a particular case may testify as a lay opinion
witness about his interpretation of drug code words used in the case. See
United States v. Haines, 803 F.3d 713, 729 (5th Cir. 2015).
       Second, even assuming it was error to admit Sosa’s testimony about his
interpretation of “bottles of barbecue sauce,” Defendant has not shown that the
error affected his substantial rights. “Ordinarily, an error affects substantial
rights only if it ‘affected the outcome of the district court proceedings.’” United
States v. Davis, 602 F.3d 643, 647 (5th. Cir. 2010) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). Disregarding Sosa’s testimony that he
interpreted “bottles” as “ounces,” there was still ample evidence of Defendant’s




       1 Defendant argues that he preserved this issue by objecting to Sosa’s testimony as
“hearsay” at trial. However, contemporaneous objections that are non-topical in relation to
the arguments raised on appeal are insufficient to preserve those arguments for review. See
United States v. Gracia, 522 F.3d 597, 599 n.1 (5th Cir. 2008). Thus, because Defendant’s
“sole objection” of hearsay was “completely non-topical” vis-à-vis the argument he now makes,
“[f]or purposes of our determination of the applicable standard of review, [Defendant] did not
make a valid contemporaneous objection.” Id.
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                                 No. 14-11181
guilt in this case, including Favela’s unchallenged testimony that he was
fronting cocaine to Defendant in ounce amounts. Indeed, Sosa’s testimony
about the quantity of cocaine Defendant received was, if anything, cumulative
of Favela’s unchallenged testimony, and there is thus no reversible plain error
in its admission. See United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir.
2011) (“To the extent this was an improper expert opinion . . ., which we doubt,
it was cumulative of other testimony and was therefore harmless.”).
3. Sentencing
      Defendant’s final argument is that the district court erred when it relied
solely on the PSR to find that Defendant’s prior conviction for attempted
murder was an “adult” conviction and thus counted towards his “career
offender” status under United States Sentencing Guideline § 4B1.1. This
argument was likewise not preserved in the court below and is subject only to
review for plain error. In this regard, Defendant must “show a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
[he] would have received a lesser sentence.” United States v. Garza-Lopez, 410
F.3d 268, 275 (5th Cir. 2005) (quoting United States v. Villegas, 404 F.3d 355,
357–62 (5th Cir. 2005)). Significantly, Defendant does not argue that his
conviction was actually a juvenile conviction under state law; rather, he only
contends that the district court’s reliance on the PSR “deprived [him] of the
opportunity to evaluate” the “significant possibility” that his attempted
murder conviction was a juvenile conviction. However, Defendant provides no
information or authority to indicate that he was treated as a juvenile under
Texas law, and indeed, a review of the judgment reveals that Defendant was
convicted as an adult. Furthermore, the district court in this case stated that
“[e]ven if the guideline calculations are not correct, this is the sentence the
Court would otherwise impose under 18 U.S.C. § 3553.” Thus, at the very least,


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Defendant cannot show that but for the district court’s misapplication of the
sentencing guidelines, he would have received a lesser sentence.
     AFFIRMED.




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