     Case: 13-50226       Document: 00512522024         Page: 1     Date Filed: 02/04/2014




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

                                                                            FILED
                                                                         February 4, 2014
                                     No. 13-50226
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

ELISEO MONTES, JR.,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:12-CR-216-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Eliseo Montes, Jr., was convicted of conspiracy to possess with intent to
distribute marijuana and conspiracy to launder money in violation of 18 U.S.C.
§ 1956(h) and 21 U.S.C. § 841.               He was sentenced to 240 months of
imprisonment.
       First, Montes argues that he received ineffective assistance of counsel
because counsel failed to prepare Montes for his testimony, failed to object to the
prosecutor’s intrusion into the attorney/client relationship, failed to object to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-50226

testimony as hearsay, and permitted a Government witness to vouch for the
credibility of another Government witness. The record in the instant case is
insufficiently developed to permit proper review of Montes’s alleged grounds of
ineffective assistance. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006).
      In addition, Montes challenges his sentence. Pursuant to Gall v. United
States, 552 U.S. 38, 51 (2007), we first determine whether the sentence imposed
is procedurally sound and, if it is, whether the sentence imposed is substantively
reasonable.
      Montes’s argument that the district court procedurally erred when it
impermissibly relied on unreliable double hearsay is unavailing. The district
court was permitted to consider police officer Brian Schutt’s testimony to
determine the amount of drugs attributable to Montes. See United States v.
Gaytan, 74 F.3d 545, 558 (5th Cir. 1996); United States v. Edwards, 65 F.3d 430,
432 (5th Cir. 1995). Further, Montes has not presented rebuttal evidence to
demonstrate that the Presentence Investigation Report (PSR) was “materially
untrue, inaccurate or unreliable.” United States v. Parker, 133 F.3d 322, 329
(5th Cir. 1998) (internal quotation marks omitted).
      The challenge to the firearms enhancement pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2012) is likewise unavailing. Montes does not
challenge the reliability of the PSR’s information or challenge sufficiently
Schutt’s testimony that Montes received three firearms after a coconspirator
died. See Parker, 133 F.3d at 329. Moreover, the district court was entitled to
credit Schutt’s testimony about the duty weapon during the fake traffic stop. See
Edwards, 65 F.3d at 432.
      Montes’s argument that the district court failed to give him an
individualized sentencing procedure and failed to explain its 240-month sentence
fails. Because Montes did not make these objections in the district court, we
review for plain error only. See United States v. Neal, 578 F.3d 270, 272 (5th

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                                  No. 13-50226

Cir. 2009). Even if the district court committed obvious error by failing to make
express fact findings, Montes cannot show that the error, if any, affected his
substantial rights because he was sentenced within the Guidelines range, and
he does not show that an adequate explanation by the district court would have
changed his sentence. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009).
      Next, Montes argues that the district court abused its discretion in failing
to take into account his characteristics and the goals of 18 U.S.C. § 3553.
Because he was sentenced within a properly calculated Guidelines range, we
infer that the district court considered the sentencing factors set forth in the
Sentencing Guidelines and § 3553(a). See United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005). Moreover, the record indicates that the district court
considered those factors. See United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008).
      Last, Montes’s assertion that his within-Guidelines sentence was cruel and
unusual punishment is without merit. In analyzing whether a sentence is
unconstitutionally disproportionate, “this court first makes a threshold
comparison of the gravity of the offense against the severity of the sentence.
Only if we determine that the sentence is grossly disproportionate to the offense”
will we engage in further analysis. United States v. Thomas, 627 F.3d 146, 160
(5th Cir. 2010) (internal quotation marks and citation omitted). Moreover, we
have concluded that “the Guidelines are a convincing objective indicator of
proportionality.” United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th
Cir. 1993) (internal quotation marks omitted). As Montes’s sentence was within
the Guidelines range, we conclude that it was not grossly disproportionate to his
offense.
      AFFIRMED.




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