     Case: 18-11559       Document: 00515235981         Page: 1    Date Filed: 12/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                      No. 18-11559                   December 13, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


               Plaintiff – Appellee

v.

PAUL ANTHONY MONTANEZ,

               Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-172-1


Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Montanez argues in this appeal that his 300-month sentence is
substantively unreasonable and that a special condition of his supervised
release constitutes reversible plain error. Because Montanez does not show
that the district court failed to account for a significant factor, gave significant
weight to irrelevant or improper factors, or clearly erred in balancing the
sentencing factors, we hold that his sentence is not substantively



       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
    Case: 18-11559       Document: 00515235981   Page: 2   Date Filed: 12/13/2019



                                  No. 18-11559
unreasonable. We modify the special condition at issue to restrict Montanez’s
access to all electronic games that allow Internet communication between
players. AFFIRMED AS MODIFIED.
                                      I.
      Paul Anthony Montanez pleaded guilty to a single count of enticement
of a child, which is a violation of 18 U.S.C. § 2442(b). Montanez approached
the 13-year-old male victim in a park and claimed he wanted to buy his bicycle.
They exchanged phone numbers. Montanez communicated with the victim via
text message and the Kik messaging application.            Montanez’s messages
included at least six nude photographs of minor females and an offer to pay the
victim if he helped Montanez “get fresh girls” into his vehicle. The victim
revealed the messages to his school counselor who contacted local police.
      A local police officer was given consent to search the victim’s phone and
to assume his identity via text message and on Kik.            Montanez began
communicating with the officer who he presumed was the victim and sent a
video of himself sexually assaulting an unconscious adult female.      Montanez
then asked the presumed victim to share the video with his girlfriend and to
send pictures of her. Montanez sent other messages asking the presumed
victim which school he attended and instructed him to find Montanez a girl
there. Montanez then drove past the school and sent a message about the
“virgin” girls he saw.
      Another officer simultaneously assumed the identity of the victim’s 13-
year-old girlfriend and began communicating with Montanez. Montanez sent
the video of him sexually assaulting an unconscious female and a nude picture
of himself to the officer posing as the 13-year-old girlfriend. Montanez also
indicated that he wanted to engage in various sexual acts with her. Montanez
eventually asked the presumed 13-year-old girlfriend to meet him at a car
wash near her school to engage in intercourse. Montanez was arrested when
                                           2
      Case: 18-11559   Document: 00515235981     Page: 3   Date Filed: 12/13/2019



                                  No. 18-11559
he arrived at the car wash and officers found three mattresses,
methamphetamine, tape, and a trash bag with candy in his vehicle. Officers
also found a video on Montanez’s cell phone of him masturbating next to a
sleeping minor female’s head. Two other videos on Montanez’s phone showed
him filming a sleeping minor female. Montanez also planned to give the
victim’s girlfriend a cell phone containing a video of him simulating the
penetration of prepubescent girls’ buttocks.
       The Presentence Investigation Report (PSR) assessed a Guidelines range
of 120 to 150 months based on a total offense level of 27 and a criminal history
category of V. However, the PSR also noted that an upward variance may be
warranted because “numerous circumstances . . . were not adequately taken
into account in the guidelines calculations.” According to the PSR, Montanez
attempted to coerce the victim into helping him kidnap minor females, filmed
and sent multiple videos of actual and simulated sexual assaults, and scouted
middle schools. He also searched on-line for pornography involving the rape
and    abuse   of   unconscious   and   mentally   handicapped     females   and
photographed “a prepubescent minor female’s crotch and buttocks,” which he
sent to the victim. The PSR indicated an upward variance may be warranted
because other federal or state charges could have been pursued based on
Montanez’s possession of 18 images constituting child pornography.
       Montanez filed written objections to the PSR that focused on the facts
supporting a variance. The PSR was adjusted to address Montanez’s initial
objection that his enticement of the victim was already accounted for in the
Guidelines calculation and other objections not relevant to this appeal. The
adjusted sentence was 121 to151 months, and the probation officer stood by
her findings supporting an upward variance. The district court adopted the
PSR over Montanez’s objections.


                                        3
    Case: 18-11559     Document: 00515235981      Page: 4   Date Filed: 12/13/2019



                                  No. 18-11559
      The government proposed an upward variance of 240 months’
imprisonment, to which Montanez objected.          The district court sentenced
Montanez to 300 months’ imprisonment, consecutive to his sentences for
unrelated state offenses and a federal probation violation, followed by a
lifetime term of supervised release.
      The district court at sentencing stated that “the properly calculated
Guidelines in this case are wholly inadequate to take into account [Montanez’s]
level of predatory nature” and that a 300-month sentence would “appropriately
address the [§] 3553 factors,” particularly that it was “necessary to protect the
public from future crimes of the Defendant.”
      Montanez objected to the sentence “for all the reasons that [he] stated in
[his] filings with the [c]ourt” and “for all the reasons stated . . . in court.” He
timely appealed the sentence and special supervised release conditions. See
FED R. APP. P. 4(b)(1)(A).
                                       II.
      We first address the substantive reasonableness of Montanez’s sentence
and then evaluate whether the challenged condition of his supervised release
constitutes reversible plain error.
                                        A.
      Montanez objected to the PSR because he claimed that his attempted use
of the minor victim, his producing and sending sexually graphic videos, his
Internet searches for middle schools, and his other sexually explicit Internet
searches were already considered by the Guidelines in establishing his
advisory sentencing range. He also argued that his scouting of the minor
victim’s middle school and sending the video in which he simulated anal
penetration of prepubescent girls were irrelevant factors because of their de
minimis nature compared to the offense of conviction.         Finally, Montanez
claimed that his sending of the video in which he sexually assaulted a sleeping
                                             4
     Case: 18-11559      Document: 00515235981         Page: 5      Date Filed: 12/13/2019



                                      No. 18-11559
woman, his sending photos of prepubescent girls, and his possession of child
pornography would, if resulting in separate convictions, support only a three-
level increase in his offense level.
       After the district court pronounced his sentence, Montanez objected “for
all the reasons” he stated in his previous court filing and objected “for all the
reasons” he gave orally at sentencing. 1             We need not address whether
Montanez’s objections were specific enough to constitute objections to the
sentence’s substantive reasonableness because his arguments fail even under
the abuse-of-discretion standard of review.
                                         1.
       Our review of the district court’s sentencing decision is limited to
determining whether a sentence is reasonable. Gall v. United States, 552 U.S.
38, 46 (2007).       Montanez does not challenge his sentence’s procedural
soundness and we determine no procedural fault exists, so we will only
evaluate his sentence’s substantive reasonableness. Id. at 51. We review a
sentence’s substantive reasonableness under an abuse-of-discretion standard
whether it is inside or outside the Guidelines range. Id. Because we must also
“give due deference to the district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of [a] variance,” we will not apply a presumption of
unreasonableness to a non-Guidelines sentence.                Id.    Even if a different
sentence may have been more appropriate, that is insufficient to justify
reversal. Id. Because Montanez’s substantive reasonableness challenge was
arguably preserved and fails even under the abuse-of-discretion standard, we



       1 The Supreme Court recently granted certiorari to resolve whether a formal objection
after pronouncement of sentence is necessary to avoid the plain error standard in subsequent
appellate reasonableness review of the length of a defendant’s sentence. United States v.
Holguin-Hernandez, 746 F.App’x 403 (5th Cir. 2018), cert. granted, ––– U.S. ––––, 139 S.Ct.
2666, 204 L.Ed.2d 1068 (2019) (No. 18-7739).

                                              5
     Case: 18-11559      Document: 00515235981        Page: 6    Date Filed: 12/13/2019



                                     No. 18-11559
will apply the less deferential standard. 2 See United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir. 2008).
      A non-Guidelines sentence must be reasonable “under the totality of the
relevant statutory factors.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (quoting United States v. Jones, 444 F.3d 430, 441 (5th Cir. 2006)).
A non-Guideline sentence unreasonably fails to reflect statutory sentencing
factors if it “(1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Our “review
for substantive reasonableness is ‘highly deferential,’ because the sentencing
court is in a better position to find facts and judge their import under the §
3553(a) factors with respect to a particular defendant.”              United States v.
Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (quoting United States v. Key,
599 F.3d 469, 473 (5th Cir. 2010)).
      First, Montanez argues his sentence is substantively unreasonable
because the district court based the sentence on “facts that [were] already
factored into the applicable [G]uideline range, added no substantial weight to
the offense, and . . . would have resulted in a significantly lower [G]uideline
range [if they had resulted in a conviction].” Montanez cites the district court’s
“recitation of the fact that [he] believed that he was going to have sex with a
middle school girl . . . [which] merely alludes to the kind of behavior that
typically is associated with an enticement charge.” He also claims that “the
district court’s leverage of [his] attempted use of the [victim] in his scheme was
misplaced.”     This argument is foreclosed by our precedent, which allows


      2  Montanez and the government agree that Montanez preserved this argument and
that his sentence’s substantive reasonableness should be reviewed for abuse of discretion.

                                            6
    Case: 18-11559    Document: 00515235981         Page: 7   Date Filed: 12/13/2019



                                 No. 18-11559
district courts to rely on “factors already incorporated by the Guidelines to
support a non-Guidelines sentence.” Brantley, 537 F.3d at 350 (citing United
States v. Williams, 517 F.3d 801, 810–11, 811 n.55 (5th Cir. 2008)). Therefore,
the district court did not abuse its discretion by considering factors already
considered by the Guidelines.
      Second,   Montanez     argues    that   his     sentence   is   substantively
unreasonable because the district court leveraged facts that were irrelevant to
his conviction and any uncharged offenses. The standard for a “substantively
unreasonable” sentence requires the district court to have given “significant
weight to an irrelevant or improper factor.” Smith, 440 F.3d at 708. Montanez
faults the district court for “leveraging” the fact that he met the victim in a
public park. The victim did not knock on Montanez’s door, enter his yard, or
otherwise initiate contact. Rather, Montanez visited a community park where
children gather and asked the victim to help him “snatch” girls from the park.
Because there is an apparent connection between Montanez meeting the victim
in a public park and his enticement offense, we determine that the district
court did not significantly rely upon an irrelevant factor.
      Montanez further faults the district court for “leveraging” the fact that
duct tape was found in his vehicle. Possession of duct tape may ordinarily be
irrelevant, but Montanez fails to acknowledge that he asked the victim to help
him kidnap minor females in his vehicle and intended to have intercourse with
a minor female in the same place he kept duct tape. He also fails to mention
that mattresses, candy, and methamphetamine were in his vehicle along with
the duct tape. Because there is an apparent connection between Montanez’s
duct tape and his stated kidnapping intentions along with his enticement
offense, we determine that the district court did not significantly rely upon an
irrelevant factor.


                                        7
    Case: 18-11559    Document: 00515235981     Page: 8   Date Filed: 12/13/2019



                                 No. 18-11559
      Nonetheless, Montanez fails to show that the facts he characterizes as
irrelevant were anything more than secondary concerns or additional
justifications for the district court’s upward variance. See United States v.
Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015); United States v. Walker, 742 F.3d
614, 617 (5th Cir. 2014). Because Montanez only challenges the relevancy of
secondary facts that merely provided additional justification for the sentence,
his second argument also fails to demonstrate abuse of discretion.
      Finally, Montanez argues his sentence is substantively unreasonable
because 300 months is nearly double the Guidelines range. However, this
court has previously upheld comparable upward variances in other sex offense
cases. See, e.g. United States v. Diehl, 775 F.3d 714, 725–26 (5th Cir. 2015)
(affirming a 600-month sentence on a Guidelines range of 210 to 262 months
in a child pornography case); United States v. Segura, 747 F.3d 323, 326–27
(5th Cir. 2014) (affirming a 120-month sentence on a Guidelines range of 33 to
41 months in a failure to register case); United States v. Schmidt, 552 F. App’x
300, 304–06 (5th Cir. 2004) (unpublished) (affirming a 444-month sentence on
a Guidelines range of 240 to 293 months in a child exploitation enterprise case).
Because Montanez did not cite a single case in which this court vacated a
similar sentence for being unduly harsh, his third argument also fails.
      Montanez fails to establish that the district court did not account for a
factor worthy of significant weight, gave significant weight to irrelevant or
improper factors, or clearly erred in balancing the sentencing factors. Smith,
440 F.3d at 708.       The district court reviewed Montanez’s sentencing
memorandum, listened to his attorney’s arguments at sentencing, and
consulted the § 3553(a) factors. The district court also considered Montanez’s
personal testimony regarding his background and the nature of his offense.
The district court made the required individualized assessment and was free
to conclude that the Guidelines range in Montanez’s case gave insufficient
                                       8
    Case: 18-11559      Document: 00515235981        Page: 9    Date Filed: 12/13/2019



                                    No. 18-11559
weight to the nature and circumstances of his offense and the need to protect
the public. See United States v. Hall, 575 Fed. App’x. 328, 330 (5th Cir. 2014)
(unpublished); United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009); Williams, 517 F.3d at 809. Accordingly, there is no substantive error
in Montanez’s 300-month sentence.
                                           B.
      We now address the challenged condition of Montanez’s supervised
release. At the sentencing hearing, Montanez confirmed that he reviewed the
special supervised release conditions listed in the judgment and that he had no
objection. 3 However, Montanez on appeal challenges Special Condition No.
18’s restrictions on “(1) us[ing] or possess[ing] any gaming consoles” or “(2)
download[ing], possess[ing], and/or install[ing] copyrighted materials” without
prior authorization as being violative of his First Amendment rights,
unreasonably overbroad, and a greater deprivation of liberty than reasonably
necessary to satisfy the purposes of § 3553(a). We review the challenged
condition for plain error. Both parties agree that the challenged condition,
which would restrict Montanez from purchasing any published book at all, is
overbroad on its face. But, the government maintains that we can trust the
special condition will be given a common-sense narrowing in its application.
      District courts have broad discretion to impose special conditions of
supervised release. United States v. Fernandez, 776 F.3d 344, 346 (5th Cir.
2015) (per curiam). Yet, their discretion is limited by 18 U.S.C. § 3583(d),
which requires conditions of supervised release to be “reasonably related” to
one or more of four factors enumerated in 18 U.S.C. § 3553(a):


      3 Condition No. 18 of the Special Terms of Supervised Release states that Montanez:
      “shall not use or possess any gaming consoles (including, but not limited to, Xbox,
      PlayStation, Nintendo), he shall not download, possess, and/or install copyrighted
      material, or devices, without prior permission from the probation officer.”

                                           9
    Case: 18-11559      Document: 00515235981        Page: 10     Date Filed: 12/13/2019



                                     No. 18-11559


      (1) the nature and characteristics of the offense and the history and
      characteristics of the defendant, (2) the deterrence of criminal conduct,
      (3) the protection of the public from further crimes of the defendant, and
      (4) the provision of needed educational or vocational training, medical
      care, or other correctional treatment to the defendant.

United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C.
§§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). A special condition
should also not impose any “greater deprivation of liberty than is reasonably
necessary for the purposes” recognized by the last three factors. 18 U.S.C. §
3583(d)(2). 4 The sentencing court must state its reason(s) for imposing a
sentence, and the reason(s) “must be either supported by a factual finding or
otherwise evident from the record.” United States v. Caravayo, 809 F.3d 269,
276 (5th Cir. 2015) (per curiam). Finally, special conditions must be “tailored
to the individual defendant.” Id.
      The district court stated that Montanez’s sentence and supervised
release conditions would “address the [§] 3553 factors” and “protect the public
from future crimes of the Defendant.”            According to the record, Montanez
claimed the victim contacted him several times about an Xbox controller and
Call of Duty games.          He also used Kik, a smartphone application, to
communicate with the victim. Based on our understanding of the record, the
district court likely imposed this special condition to restrict Montanez from
using electronic games to communicate with minors in the future.
      We have previously vacated special supervised release conditions related
to computer and Internet access for being overly broad. See United States v.
Duke, 788 F.3d 392, 399 (5th Cir. 2015) (per curium) (explaining that a lifetime
ban on the defendant’s access to a computer with Internet access was overly


      4 Any condition must also be “consistent with any pertinent policy statements issued
by the Sentencing Commission pursuant to 28 U.S.C. 994(a).” 18 U.S.C. § 3583(d)(3).
                                           10
   Case: 18-11559    Document: 00515235981     Page: 11   Date Filed: 12/13/2019



                                No. 18-11559
broad); see also United States v. Heckman, 592 F.3d 400, 405 (3rd Cir. 2010)
(holding a lifetime ban on access to the Internet or a private computer network
was overly broad). However, the condition challenged by Montanez is different.
While we have never evaluated a special supervised release condition exactly
like the one at issue, we have addressed unclear conditions that would be
unreasonable and violative of substantial rights if enforced in the strictest
manner. See United States v. Clark, 784 F. App’x 190, 194 (5th Cir. 2019)
(unpublished); United States v. Melton, 753 F. App’x 283, 289 (5th Cir. 2018)
(unpublished); United States v. Sealed Juvenile, 781 F.3d 747, 756–57 (5th Cir.
2015).
      We have discretion to modify special conditions without vacating the
conditions altogether or remanding for clarification. See 28 U.S.C. § 2106
(federal appellate courts “may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought before it for review”);
Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 401 (5th Cir. 2019) (“[W]e
modify the written judgment . . . to remove any doubt regarding the scope of
the special conditions and what they require of Appellant, leaving the other
special conditions unchanged.”); United States v. Guerra, 856 F.3d 368, 370
(5th Cir. 2017) (“Lest there be any doubt, we AFFIRM the sentence as
MODIFIED.”).
      We conclude that the literal application of the special condition is
overbroad, and we narrow it to its common-sense construction. Because both
parties agree that the special condition should be narrowed to require
Montanez to obtain permission to play electronic games that allow Internet
communication, we modify the condition accordingly.


      AFFIRMED as MODIFIED.



                                      11
