[00:00:02] Speaker 03:
We'll call our next case United States versus Montana, case number 23-2030.

[00:00:35] Speaker 03:
Miss Edelman, you may proceed when you're ready.

[00:00:39] Speaker 02:
Good morning.

[00:00:40] Speaker 02:
My name is Violet Edelman, and I represent Allegious Montano.

[00:00:44] Speaker 02:
I would like to reserve three minutes of my time for rebuttal.

[00:00:48] Speaker 02:
We raised three issues in the briefs, and I would like to begin with the third issue pertaining to the criminal history score calculation.

[00:00:55] Speaker 02:
The record in this case could not establish that each of the five consolidated state court cases

[00:01:04] Speaker 02:
were worth three criminal history points.

[00:01:07] Speaker 02:
The district court's assumption that Mr. Montano served sufficient time on each one was conjecture without basis in fact or law.

[00:01:16] Speaker 02:
A defendant has a fundamental due process right to be sentenced based on accurate information, and it is the government's burden to prove that criminal history points should apply.

[00:01:28] Speaker 03:
But here- So is your primary argument on this third issue

[00:01:32] Speaker 03:
that the government didn't satisfy its burden by preponderance, correct?

[00:01:36] Speaker 03:
And if that's our understanding of your argument that there's no reason to consider lenity, is that also a fair understanding?

[00:01:43] Speaker 02:
Yes, I think the lenity argument is an alternative, but the primary point is that the government was required to prove that he served enough time on each one and it didn't offer anything really in support of that.

[00:01:59] Speaker 02:
So that wouldn't require

[00:02:01] Speaker 02:
applying the rule of lenity.

[00:02:03] Speaker 03:
Didn't the district court here do the best that it could with the documents in front of it?

[00:02:08] Speaker 02:
I don't think so because all the documents established is that he served, he was sentenced to seven years in custody and 13 years of that total sentence was suspended.

[00:02:20] Speaker 02:
But there's no evidence in the state court record at all on how the state court was splitting up that time.

[00:02:29] Speaker 02:
it's entirely possible and plausible even that all of the time would have been satisfied by that one that carried 12 years of exposure.

[00:02:39] Speaker 02:
And I think without more, the district court was actually required to look at what was necessarily established by the record, which is that he would get three points on one of them, we know that is true, and that the others would each be worth one.

[00:02:54] Speaker 02:
The district court actually

[00:03:00] Speaker 02:
The logic that it applied doesn't track either because I think she assumed that each one could get 18 months.

[00:03:08] Speaker 02:
But if you add that up, that's actually seven and a half years.

[00:03:11] Speaker 02:
And he only got seven years in custody.

[00:03:16] Speaker 02:
So there's a problem there that sort of betrays the general lack of clarity and confusion.

[00:03:21] Speaker 02:
So the logic that she followed did not track for that reason.

[00:03:28] Speaker 02:
So the only fair way to approach this is to assume that he served the time on the one case that occupied more than half of the total, and that the rest were fully suspended.

[00:03:38] Speaker 02:
And that agrees with the guidelines as well, because they provide that when you have a fully suspended sentence, it's worth one criminal history point.

[00:03:46] Speaker 03:
So what would the mandate be on this issue?

[00:03:48] Speaker 03:
We would send this back to the district court to do what precisely on the criminal history?

[00:03:52] Speaker 02:
You would remand with instructions to sentence him in criminal history category five, because that is the only thing that is necessarily established by the state court record.

[00:04:09] Speaker 04:
There are five cases that incorporate 12 different charges, correct?

[00:04:21] Speaker 04:
Yes.

[00:04:24] Speaker 04:
And in order to get this reduced from category six to category five, the only way that can happen is if three points are given to only one of the five cases.

[00:04:42] Speaker 02:
Correct?

[00:04:44] Speaker 02:
That is, I think, the most straightforward way to look at it.

[00:04:48] Speaker 02:
No, that's not my question.

[00:04:50] Speaker 04:
I'm going to harmlessness.

[00:04:55] Speaker 04:
The only way for you to get this reduced to category five is if only one of the cases gets three points and the other four get only one.

[00:05:09] Speaker 02:
Well, actually, it's a bit technical and in the weeds, but if you count them in order, the cases as they are listed in the state court documents, which is what trial counsel suggested,

[00:05:25] Speaker 02:
Because the total sentence that Mr. Montano received was 22 years minus one day.

[00:05:32] Speaker 02:
And the total exposure, the maximum actually was 22 and a half years.

[00:05:40] Speaker 02:
So there are six months there plus a day that have to come off of some sentence.

[00:05:45] Speaker 02:
I wondered where that went to too.

[00:05:48] Speaker 02:
So, and I think, I mean it's again very hard to tell from the state court documents,

[00:05:53] Speaker 02:
If that were applied to the first one that was listed, which was an 18 month maximum, that conviction actually would have gotten less than 13 months.

[00:06:03] Speaker 02:
I think something like 11 months in one day.

[00:06:05] Speaker 02:
And then the next one, so that would be two points.

[00:06:09] Speaker 02:
And then now we have amendment 821, so he would have only received one status point.

[00:06:16] Speaker 02:
So the math breaks down so that he would be in criminal history category five under that analysis as well.

[00:06:23] Speaker 02:
which makes the error.

[00:06:26] Speaker 04:
I didn't quite follow that.

[00:06:32] Speaker 04:
Three points can be attributed to more than one of the five cases?

[00:06:38] Speaker 04:
No, not going in order because... I'm not talking about going in order.

[00:06:42] Speaker 04:
I'm just saying, looking at there's five cases listed, and I understand that when they list individual charges, they're doing it chronologically.

[00:06:52] Speaker 04:
starting with the oldest and descending down to the newest.

[00:06:58] Speaker 04:
But focusing just on the five cases, because that's where the sentencing occurred.

[00:07:06] Speaker 04:
And as I understand it, the only way it can be reduced is if only one of that set of five gets a three count.

[00:07:20] Speaker 04:
and the remaining four get one count.

[00:07:23] Speaker 04:
That's the only way it can be reduced from a six to a five.

[00:07:27] Speaker 04:
And you're telling me that's not so.

[00:07:29] Speaker 02:
If one of them gets two points, that still results in reducing to five, because that's two plus three.

[00:07:38] Speaker 02:
And then the other three get each one.

[00:07:42] Speaker 04:
OK, then half of my suggestion is true.

[00:07:47] Speaker 04:
Only one gets three.

[00:07:49] Speaker 04:
Yes.

[00:07:50] Speaker 04:
I didn't think about the other.

[00:07:52] Speaker 02:
So you could be right.

[00:07:55] Speaker 02:
Well, it's very hard to tell.

[00:07:59] Speaker 02:
And the district court acknowledged that.

[00:08:01] Speaker 02:
And the chaos that happened there and has continued on appeal in terms of everyone suggesting a different method really betrays the problem, which is that you can't tell.

[00:08:13] Speaker 02:
And without knowing more, it's not

[00:08:17] Speaker 02:
fair or constitutional to have someone spend longer in prison based on a lack of clarity in the state court record.

[00:08:25] Speaker 04:
Do you agree that it would be futile to remand this for the court to reconsider its allocation of points?

[00:08:38] Speaker 04:
That it would be futile to do that because there's no further information they can get.

[00:08:44] Speaker 02:
Yes, I think that the record that was before it

[00:08:47] Speaker 02:
was exhaustive in terms of trying to figure out what the state court did.

[00:08:52] Speaker 02:
And the government didn't offer anything in the district court and doesn't offer anything now to offer anything different.

[00:09:01] Speaker 03:
That's why you suggested the mandate is very specific.

[00:09:04] Speaker 03:
Yes.

[00:09:05] Speaker 03:
Does the government make a harmless error argument on the third issue?

[00:09:08] Speaker 03:
I wasn't seeing it, but maybe I'm... I don't think the government...

[00:09:14] Speaker 03:
raise it, probably.

[00:09:15] Speaker 04:
We'll clarify.

[00:09:16] Speaker 04:
But doesn't harm us there in here in this, if you're trying to figure out how to allocate points?

[00:09:21] Speaker 02:
Will it?

[00:09:21] Speaker 03:
It's a performance burden to show harmlessness.

[00:09:24] Speaker 03:
Is that right?

[00:09:24] Speaker 02:
Yes.

[00:09:26] Speaker 02:
Yes.

[00:09:26] Speaker 02:
And I think it's... Whoa, wait a minute.

[00:09:32] Speaker 04:
Do you appear much in state court in your previous life?

[00:09:36] Speaker 02:
No, Your Honor.

[00:09:39] Speaker 04:
The district court made somewhat disparaging remarks.

[00:09:44] Speaker 04:
about how the state district court handled the sentencing.

[00:09:48] Speaker 04:
Is that correct?

[00:09:51] Speaker 04:
Yes.

[00:09:52] Speaker 04:
I mean, she, yes.

[00:09:52] Speaker 04:
And it did so because the state court didn't do things so that it would accommodate the sentencing procedures in the federal court, correct?

[00:10:06] Speaker 02:
I'm not sure why she particularly found the state court judgment to be

[00:10:12] Speaker 02:
Such a mess, I think, is what she said.

[00:10:13] Speaker 04:
Is there any evidence in the record that the state court did anything other than looking at this holistically?

[00:10:22] Speaker 04:
I see this.

[00:10:23] Speaker 04:
There's 22 years in one day, possibly.

[00:10:27] Speaker 04:
Actually, 26 months in one day.

[00:10:32] Speaker 04:
And I'm just looking at this holistically, and I think it feels that seven years is about right.

[00:10:41] Speaker 04:
Not thinking anything about any specific one of the 12 crimes or any specific one of the five cases.

[00:10:56] Speaker 04:
And it didn't have any idea whatsoever.

[00:11:00] Speaker 04:
And as a result, it's impossible to divine what that district judge was doing.

[00:11:09] Speaker 04:
That's one view, right?

[00:11:10] Speaker 02:
Yes.

[00:11:11] Speaker 04:
Another view is that if you did a matrices type analysis, and I'm going back some 60 years to my high school mathematics stuff, but if you take these five cases, there are many, many alternatives you could come up with in allocating points, aren't there?

[00:11:42] Speaker 04:
Yes.

[00:11:43] Speaker 04:
But the district judge said, well, I'm going to look at these as they are listed in the judgment.

[00:11:51] Speaker 04:
And there are so many different ways.

[00:11:53] Speaker 04:
He didn't say this, but there are so many different ways you can align this.

[00:11:59] Speaker 04:
It's logical that you just follow the list down.

[00:12:07] Speaker 04:
And once you get a total of seven years, which means two cases,

[00:12:12] Speaker 04:
You apply three points to each one of those cases.

[00:12:17] Speaker 04:
Uh, and that, that doesn't, that's six.

[00:12:22] Speaker 04:
Why is that a wrong approach in trying to define what the state district court was doing?

[00:12:33] Speaker 02:
Well, I think given the lack of clarity and the number of different avenues there are that one could follow in making this conclusion.

[00:12:41] Speaker 02:
The only thing that is constitutional is to look at the least necessarily established by the state court records.

[00:12:51] Speaker 02:
And there isn't anything in the state court record to suggest that it goes down the line, particularly with each getting three, since there is that six months, too, that comes off of somewhere.

[00:13:05] Speaker 02:
I am no expert in New Mexico state court

[00:13:11] Speaker 02:
sentencing, but my review in preparation of the cases from the New Mexico Supreme Court suggests that sometimes the state court does specify the order, you know, and says that these sentences are consecutive and they'll be served this one first, then this one, and they didn't do that here.

[00:13:31] Speaker 04:
I think- Did you just say generally they're going to run consecutively to one another?

[00:13:37] Speaker 02:
Yeah.

[00:13:39] Speaker 02:
And so I think that really

[00:13:40] Speaker 02:
leaves the district court with no other option but to give him, to put him in criminal history category five.

[00:13:49] Speaker 02:
If there's.

[00:13:51] Speaker 02:
Council, we're gonna keep you over time.

[00:13:53] Speaker 03:
Okay.

[00:13:53] Speaker 03:
Couple of questions we didn't get to yet on the brandishing.

[00:13:59] Speaker 03:
What exactly is your challenge here?

[00:14:01] Speaker 03:
Are you making a challenge to the district court's factual findings or are you arguing that here

[00:14:07] Speaker 03:
like in Farrow, the district court used an improperly subjective standard.

[00:14:14] Speaker 03:
Or you may be doing both.

[00:14:15] Speaker 03:
I just need some clarification around your argument there.

[00:14:18] Speaker 02:
Yes, well I think that it is both because I think the biggest problem with the evidence presented here is that one of the witnesses said she thought she saw a firearm and the other witness doesn't appear to have seen that.

[00:14:38] Speaker 02:
And so there's evidence that directly undermines that subjective perception.

[00:14:43] Speaker 02:
So if you look at the totality, the objective facts altogether don't establish that he brandished a dangerous weapon or that that enhancement is appropriate.

[00:14:58] Speaker 02:
I mean, I think there's another way to look at it, which is that the evidence wasn't, there wasn't enough because all there was was this subjective perception that's undermined

[00:15:07] Speaker 02:
by the other witness.

[00:15:08] Speaker 03:
Okay, so that helps me understand that component.

[00:15:11] Speaker 03:
But if we conclude that based on this record in the district court's ruling, short oral ruling, that there was a subjective perception, that's not dispositive under our law, right?

[00:15:22] Speaker 03:
That factors into the analysis.

[00:15:23] Speaker 03:
But what do we do with the other components of what happened at the scene with the hand in the hoodie and the put your hands up and all of that?

[00:15:33] Speaker 03:
Why isn't that totality sufficient?

[00:15:37] Speaker 02:
this court's cases or the other circuit cases on this enhancement have that type of limited evidence and then also another witness directly undermining what the one witness saw.

[00:15:51] Speaker 02:
So I just don't think that's enough to overcome the question, the fact that it's called into question by what CB testified to.

[00:16:01] Speaker 02:
It also doesn't quite rise to the level, I think, of many of the other cases where you have a note

[00:16:06] Speaker 02:
that says I have a firearm, I have a box, there's a bomb in this box or something like that.

[00:16:11] Speaker 02:
It's very vague and doesn't deliver that kind of threat.

[00:16:17] Speaker 03:
Thank you.

[00:16:18] Speaker 02:
Thank you.

[00:16:34] Speaker 01:
Good morning.

[00:16:34] Speaker 01:
May it please the court, Jamie Roybal on behalf of the United States.

[00:16:38] Speaker 01:
As the court is aware, this appeal stems from a robbery that Mr. Montano conducted with his father.

[00:16:42] Speaker 01:
Before the district court, there were five issues present.

[00:16:45] Speaker 01:
And before this court, there are three of those issues that are present.

[00:16:48] Speaker 01:
So I'd like to start with the enhancement for brandishing or possessing a dangerous weapon, unless the panel would like me to start somewhere else.

[00:16:57] Speaker 01:
So I think first, you know, looking at the language of the guidelines and the language of specifically application note two to the relevant guideline, the example that is given is if a defendant uses their hand wrapped in a towel to create the impression that they have a gun but that they don't actually have a firearm.

[00:17:16] Speaker 01:
And so I think that that's an important starting point

[00:17:18] Speaker 01:
because the example that's given in the sentencing guidelines of somebody that doesn't have a gun and instead uses their hand as the exact situation that we have in this case.

[00:17:29] Speaker 01:
So it's undisputed that Mr. Montanio did not have a firearm, but the question is whether or not his use of his hand and his actions at the scene combined with his words were sufficient to

[00:17:41] Speaker 01:
for the district court to imply that enhancement.

[00:17:43] Speaker 03:
And that's actually precisely where my question begins, is that the district court held that the testimony today and the evidence presented shows that the defendant put his hands in the pocket or under his hoodie, and he meant that to create the appearance of a weapon.

[00:17:58] Speaker 03:
I'm struggling with what supports that conclusion, because we don't have anything that suggests that he made a gun-like shape

[00:18:08] Speaker 03:
I didn't see that in the testimony.

[00:18:11] Speaker 03:
So could you speak to that?

[00:18:13] Speaker 01:
Yes, Your Honor.

[00:18:14] Speaker 01:
So what was before the district court was the testimony of the two victims.

[00:18:18] Speaker 01:
And when Mr. Montanio and his father entered the story, they had bandanas over part of their faces and they yelled at them.

[00:18:27] Speaker 01:
What the testimony establishes is that the victims thought that these men were initially customers and they didn't understand that this was a robbery until they yelled a second time, get your hands up and get against the wall.

[00:18:38] Speaker 01:
The father then took the victim who was pregnant to a separate room to load up the merchandise, and Mr. Montano, the son, stayed with the second victim in the kind of primary area of the store, and she held her hands against the wall.

[00:18:52] Speaker 01:
He stayed with her the entire time.

[00:18:54] Speaker 01:
She testified, and what she did, and it is in the record, is that she put her hands inside of her sweater and made the shape of a gun, and she stood up and showed the court and showed the defense attorney that gesture.

[00:19:07] Speaker 03:
That gesture isn't described in the testimony, do you agree?

[00:19:11] Speaker 03:
It's not described that that's the gesture she made, that there was a gesture.

[00:19:16] Speaker 01:
When I reread the record, it did say, I saw you gesture, right, something to that effect.

[00:19:23] Speaker 03:
Right, not you gestured in the form of a gun under your hoodie.

[00:19:27] Speaker 03:
I agree with Your Honor, yes.

[00:19:28] Speaker 03:
So what do we do with that, if the District Court made that finding, we assume,

[00:19:33] Speaker 03:
that she made it based on a gesture that supports the government's interpretation of the evidence?

[00:19:38] Speaker 01:
Well, Your Honor, part of the testimony also is that she said she saw his hand under his hoodie, under his sweatshirt.

[00:19:46] Speaker 01:
Which would be a harmless thing to do, would it more?

[00:19:51] Speaker 01:
I think if that was all that we had, then I would agree with you.

[00:19:54] Speaker 01:
But what we also had are his words and his actions.

[00:19:57] Speaker 01:
And the words are spoken in a forceful tone, get against the wall and keep your hands up.

[00:20:02] Speaker 01:
And the actions are that he stood next to her approximately two to three feet away while the entire robbery was taking place.

[00:20:09] Speaker 01:
So he did not leave her side until his father was done collecting the merchandise from the other room.

[00:20:16] Speaker 01:
And so I think that based on the Pharaoh standard, you know, the Pharaoh inquiry, the determinative inquiry that this court outlined

[00:20:23] Speaker 01:
is whether a reasonable person under the circumstances of the robbery would have regarded the object that the defendant brandished, displayed, or possessed as a dangerous weapon.

[00:20:32] Speaker 01:
So I understood Mr. Montagno's argument that the district court made this decision based only on the victim's perception, but I don't think that that's what the record shows.

[00:20:42] Speaker 01:
It was the victim's perception, along with his actions in standing watch over her essentially until the robbery was complete,

[00:20:49] Speaker 01:
And then his words of put your hands against the wall and don't move.

[00:20:53] Speaker 03:
But it's the victim's perception of what.

[00:20:56] Speaker 03:
That's what I'm struggling with.

[00:20:57] Speaker 03:
It was very clear from the record that the victim perceived a hand under the hoodie in the shape of a gun.

[00:21:03] Speaker 03:
And that's not what the record says.

[00:21:07] Speaker 03:
It says a gesture inside your sweater.

[00:21:10] Speaker 03:
So I don't know how to read the record in favor of your position on that point.

[00:21:16] Speaker 03:
I agree with you.

[00:21:16] Speaker 03:
There are other things here.

[00:21:19] Speaker 03:
words, tone, et cetera.

[00:21:21] Speaker 03:
But as to that, I don't know how we can find, based on this record, that there was a gesture of a hand under a hoodie in the shape of a gun.

[00:21:29] Speaker 01:
I understand, Your Honor.

[00:21:30] Speaker 01:
And I think that that, you know, the district court's finding was, you know, Ali just put his hands in the pocket or under his hoodie, and he meant that to create the appearance of a weapon.

[00:21:40] Speaker 01:
My understanding of how the district court was able to come to that was the victim herself standing up and showing that gesture inside of her sweater.

[00:21:48] Speaker 01:
I admit that the

[00:21:49] Speaker 01:
the written record before the court doesn't specify that.

[00:21:54] Speaker 01:
But that was my understanding of how the district court got that.

[00:21:57] Speaker 04:
And we have no video in this case.

[00:21:59] Speaker 01:
We don't have video, Your Honor.

[00:22:00] Speaker 01:
Both victims testified that the video at the store had gone down that day.

[00:22:04] Speaker 04:
You put a lot of reliance on Farrell, right?

[00:22:07] Speaker 01:
Yes.

[00:22:07] Speaker 04:
In Farrell, wasn't there additional evidence?

[00:22:12] Speaker 04:
Didn't the defendant admit that his use of his hand was

[00:22:18] Speaker 04:
I think he said, as if I had a gun.

[00:22:22] Speaker 00:
Yes.

[00:22:23] Speaker 04:
So they had a little more in Farrow than there is here.

[00:22:27] Speaker 01:
They had that statement by the admission by the defendant in Farrow, which is something we don't have here.

[00:22:33] Speaker 01:
Mr. Mottanio invokes his right to remain silent when asked this question.

[00:22:37] Speaker 01:
Doesn't that change the case completely?

[00:22:38] Speaker 01:
Judge, I don't know that that changes the case because when the Farrow court was outlining the inquiry, it did not require that a defendant make an admission.

[00:22:48] Speaker 01:
you know, the reasonable person question, right, whether a reasonable person under the circumstances based on the actions and the language of the defendant would have understood that there was a firearm, would have thought that there was a firearm.

[00:23:02] Speaker 01:
I would also point the court to the case of United States versus Hall, which was a 2019 decision that was also bank robbery.

[00:23:10] Speaker 01:
where the defendant used a threatening note in that case and said to give him the money and that nobody would get hurt.

[00:23:17] Speaker 01:
And the evidence that the district court had was the teller's statement that the defendant put his hand down his waistband and grabbed something as if it was a firearm.

[00:23:31] Speaker 01:
And so in upholding this enhancement in the Hall case, the district court, there was surveillance video as well that showed him make that gesture.

[00:23:39] Speaker 01:
But so it was surveillance video, the big teller statement, and the threatening note.

[00:23:43] Speaker 01:
But in the Hall case, the defendant spoke to law enforcement after he was arrested as well.

[00:23:47] Speaker 01:
And he told them he robbed the bank, but he did not have a gun.

[00:23:51] Speaker 01:
And so I don't think that the admission of a defendant is necessary.

[00:23:55] Speaker 01:
I mean, it certainly would be very helpful.

[00:23:57] Speaker 01:
I don't think that it's necessary, though, to find this.

[00:24:00] Speaker 04:
something different than here, the person with just their hand in the hoodie pocket.

[00:24:07] Speaker 04:
In Hall, as you indicated, that there was a motion as if he had a gun stuck in his pants, right?

[00:24:16] Speaker 01:
So what I understood to be present in the Hall case was a gesture that he put his hands down in his waistband.

[00:24:22] Speaker 01:
I don't know that there was evidence that he actually grabbed anything, but that he put his hands down in his waistband as if he was reaching for something.

[00:24:27] Speaker 01:
And so here what you have is

[00:24:29] Speaker 01:
one victim reporting that Mr. Montano put his hand inside of his sweater.

[00:24:34] Speaker 01:
And then again, I admit the record could be more clear, but she gestured as if and pointed with her hand as, you know, what she said she understood.

[00:24:44] Speaker 03:
We don't have a record that she pointed.

[00:24:47] Speaker 03:
We just don't have it.

[00:24:48] Speaker 01:
I understand.

[00:24:49] Speaker 03:
And so do you have any suggestions for what we do with that absence?

[00:24:53] Speaker 01:
Well, I think, you know, looking at the standard of review before this court, you know, this court has to look at the factual findings, the district court's factual findings for clear error.

[00:25:02] Speaker 01:
And to say that there's, you would have to find that there's no factual basis in the record.

[00:25:09] Speaker 01:
And so I don't think that we're quite at that stage to say there's no factual basis because even though we didn't

[00:25:16] Speaker 01:
counselor, the court didn't verbalize the type of gesture she was making.

[00:25:21] Speaker 01:
The district court was able to observe her, and I think that that's within the district court's province to do is make that factual finding based on its observation of the witness, which is, in my view, what happened here.

[00:25:31] Speaker 03:
Another question I had is when you were responding to Judge Murphy, you suggested that in Hall there was an admission, which

[00:25:41] Speaker 03:
or there wasn't an admission, but admissions would be nice and helpful.

[00:25:44] Speaker 03:
I don't think the issue is admission.

[00:25:46] Speaker 03:
In our cases, there's a contemporaneous statement, hey, I have a gun.

[00:25:52] Speaker 03:
So in the cases that recognize that threatening language is demonstrative of the facts that support the enhancement, it's that.

[00:26:03] Speaker 03:
It's not a defendant saying later anything.

[00:26:06] Speaker 03:
So we don't have anything like that here, do we?

[00:26:08] Speaker 03:
We don't have any language that conveys a threat.

[00:26:11] Speaker 01:
What we have, I think primarily as it relates to, and this is a difficult question to answer because Mr. Montano was acting in conjunction with his father, right?

[00:26:24] Speaker 01:
And so the two of them, it was clear that they had planned and executed this robbery together.

[00:26:28] Speaker 01:
So what we have is the, and this is in the pre-sentence report, this factual finding was not challenged, the second victim's statement to law enforcement that

[00:26:38] Speaker 01:
Mr. Montano's father, Daniel, told her, you know, just kind of, when he was taking her to the second room, just kind of do as I'm telling you and nobody's going to get hurt, you know, implicating that there is a possibility somebody could get hurt if they don't do what they say, right?

[00:26:53] Speaker 01:
And as to, as to Allegius Montano, you know, I think that his actions in standing watch over the victim

[00:27:00] Speaker 01:
as he had her continue to put her hands against the law, I think that that is an action that under the Farrow inquiry this court can consider, again, combined with his tone, combined with his words, and then combined with what the victim reported she saw with the hands under the hoodie.

[00:27:16] Speaker 01:
I think that by a preponderance standard, I absolutely can see the record could be more clear, but I think that by a preponderance standard under the Farrow inquiry that it lays out for us, I think that we meet that burden.

[00:27:30] Speaker 04:
You better spend some time with category six or category five.

[00:27:36] Speaker 01:
Yeah, sure.

[00:27:36] Speaker 01:
Thank you, Judge.

[00:27:41] Speaker 01:
Your Honor noted that, correctly, Mr. Montano was sentenced for 13 different state crimes that were a part of five different cases.

[00:27:49] Speaker 01:
And I don't think there's any question that those were separate intervening arrests, and so different cases that the state court chose to sentence all at the same time.

[00:27:59] Speaker 01:
When we were at the sentencing hearing, the district court had available to it the documents that this court has available, which were the state court documents, and interpreted it in such a manner that the federal district court judge felt that the state district court judge intended that he spend time in custody on each of those cases.

[00:28:22] Speaker 01:
Now, I'm not going to stand here and say that that was the clearest part of this case by any means.

[00:28:28] Speaker 01:
I absolutely concede that, but I do think that the finding is supported by the language of the state court judgment itself.

[00:28:35] Speaker 01:
So the state court judgment says, quote, the convictions shall be served consecutively for all purposes, including any future parole or probation violations, for an overall jurisdiction of 22 years minus one day, and all but seven years will be suspended.

[00:28:53] Speaker 01:
And I would also note that the state district court

[00:28:57] Speaker 01:
in that document assigned each of those five cases some amount of pre-confinement credit that Mr. Montano received credit for.

[00:29:05] Speaker 01:
So I think that it did show, you know, it's... Where is that?

[00:29:09] Speaker 01:
That's towards the end of the state court document.

[00:29:13] Speaker 01:
I think it's the last substantive paragraph, but I think that it showed... Where he says 223 days pre-sentence confinement?

[00:29:21] Speaker 01:
Let me pull it up and I'll look along with you, Judge.

[00:29:24] Speaker 01:
So it's going to be on...

[00:29:27] Speaker 01:
on page four, defendants to receive credit for 223 days based on the following calculations.

[00:29:35] Speaker 01:
And then it breaks out each of those five cases and how much pre-confinement credit he got for each of those.

[00:29:42] Speaker 01:
And so I think it would have been ideal and it would have been helpful if the state court judge had said, case X gets this amount of time, case X gets this amount of time.

[00:29:51] Speaker 01:
But what I would point out is that there is nothing in the state court judgment

[00:29:57] Speaker 01:
that supports the theory that the defense was trying to advance before the district court, which is that the first case gets all over the time, and then the rest of the cases get no time.

[00:30:10] Speaker 01:
And I will say that based on my experience, we take cases from the state of New Mexico all the time, or with somebody with criminal history in the state of New Mexico.

[00:30:19] Speaker 01:
And based on my experience, what I can say is that

[00:30:22] Speaker 01:
when a state court intends to fully suspend a sentence on or give a defendant zero time on a case, it will typically say that.

[00:30:30] Speaker 01:
And so my view was based on the language of the state court judgment, which was the convictions shall be served consecutively for all purposes, including for purposes of probation and parole, that that was

[00:30:46] Speaker 01:
you know, the state court's way of stating that each of the convictions get specific time.

[00:30:52] Speaker 04:
Now, I think we can disagree on the math, and I would just... Well, tell me, what is it about that language that just because it says it would be served consecutively suggests that there's a specific amount of time for each specific either conviction or case?

[00:31:12] Speaker 04:
I think that... I don't follow, see, one follows the other.

[00:31:16] Speaker 01:
I think that if there was zero time assigned to any of those cases or any of the 13, I see I've just hit red, can I answer your question?

[00:31:29] Speaker 01:
I do think that if there was an intention that there be zero time allotted, I don't know that that language of, that consecutive language would have been necessary because if there's zero time allotted to something,

[00:31:46] Speaker 01:
To me, it would just be puzzling that zero time would have to follow consecutive to anything else.

[00:31:52] Speaker 01:
We could just say there is zero time allotted to this sentence.

[00:31:56] Speaker 04:
So my view would be that if... You mean because there's just this, you get seven years.

[00:32:08] Speaker 04:
When you add to that this consecutive reference, that somehow that explains it.

[00:32:15] Speaker 04:
that each is to get a specified, well, each is to get some time, which is unspecified.

[00:32:26] Speaker 01:
Yes.

[00:32:28] Speaker 01:
And my starting point is the 22 years, because that is where the state court started.

[00:32:33] Speaker 01:
So 22 years, all to be served consecutive, I now suspend 13 years.

[00:32:39] Speaker 01:
I admit that it's puzzling and that the math is different.

[00:32:43] Speaker 03:
But isn't that precisely the problem that if we can't discern in a more likely than not fashion that there is only one option for the district court?

[00:32:54] Speaker 01:
I think the option would be that we go back and give that another try.

[00:32:57] Speaker 01:
On an open record?

[00:33:00] Speaker 03:
So that the government can try again?

[00:33:02] Speaker 04:
Yes.

[00:33:03] Speaker 04:
What would you do?

[00:33:04] Speaker 04:
I mean, you had everything.

[00:33:08] Speaker 04:
Are you going to subpoena the state court judge?

[00:33:11] Speaker 01:
I've been thinking about that.

[00:33:14] Speaker 01:
I've been thinking about the question.

[00:33:16] Speaker 01:
I'm an old state court judge, so be careful.

[00:33:17] Speaker 01:
I've been thinking about the question.

[00:33:18] Speaker 01:
And I think the one thing we did not explore was whether there was an audio recording of that state court sentencing hearing.

[00:33:26] Speaker 01:
And so that would be if we had the chance to go back and try it again.

[00:33:29] Speaker 01:
That's something that I would look to see if it was available.

[00:33:32] Speaker 01:
If it was not, then I think that we would go back to the district court and say, we have nothing further.

[00:33:37] Speaker 01:
perhaps you should consider criminal history category five.

[00:33:40] Speaker 04:
Who is the practice in this particular court at that time to have audio versus court reporters?

[00:33:49] Speaker 01:
Based on my very limited experience with the state of New Mexico's criminal justice system, I do understand that they do audio recordings and then you can request a transcript of that audio.

[00:34:01] Speaker 01:
I don't think that I can stand here and say there's absolutely nothing more that might exist.

[00:34:05] Speaker 01:
I think there could be something more.

[00:34:07] Speaker 01:
But the question is, if you think that we need to go back and give this another try, I think that that would be appropriate.

[00:34:16] Speaker 04:
Did you take a look at New Mexico law on this?

[00:34:21] Speaker 01:
Well, I tried.

[00:34:22] Speaker 04:
OK.

[00:34:23] Speaker 04:
You didn't find anything that was helpful to you?

[00:34:27] Speaker 01:
You know, the only thing I found that was helpful was some guidance by the New Mexico Department of Corrections.

[00:34:33] Speaker 01:
I don't know what role that would play in kind of helping us solve the problem.

[00:34:39] Speaker 01:
I agree that we are working with a record that is less than clear, and I agree that

[00:34:47] Speaker 01:
the math is difficult to understand based on the documents we have available right now.

[00:34:52] Speaker 04:
Now, what about this Department of Corrections?

[00:34:54] Speaker 04:
You say that you found something that might, and when I say helpful, I'm not, I'm saying relevant, harmful to either side, because that's your duty.

[00:35:04] Speaker 01:
So there's guidance in the Department of Corrections as to kind of how the state of New Mexico calculates good time when somebody is sentenced to multiple things.

[00:35:15] Speaker 01:
So I did not think if we go back and do this again about

[00:35:18] Speaker 01:
subpoenaing the state court judge, but I did think about perhaps having somebody from the State Department of Corrections come to testify about how they're able to, because they have to receive this state court judgment as well and determine on the back end how much good time somebody gets based on the judgment that they have, right?

[00:35:34] Speaker 01:
So that's my, my two ideas are find the state court audio if it exists and then have somebody from the State Department of Corrections explain their guidelines to us when they deal with multiple sentences at the same time.

[00:35:48] Speaker 04:
Audio or transcription by court reporter?

[00:35:51] Speaker 01:
Yes.

[00:35:53] Speaker 04:
Okay.

[00:35:55] Speaker 04:
I have to explore this with you.

[00:35:59] Speaker 04:
Because I was doing this.

[00:36:02] Speaker 04:
I was sentencing people when the sentencing guidelines were in effect.

[00:36:05] Speaker 04:
I was sentencing as a state court judge.

[00:36:09] Speaker 04:
And I'm concerned that there is a complete absence of evidence.

[00:36:17] Speaker 04:
of what was intended here.

[00:36:19] Speaker 04:
And part of that is, there was no intent.

[00:36:22] Speaker 04:
And that is that a state district court judge sentencing a person on five cases, looking at them, say, well, I am going to run these consecutively.

[00:36:33] Speaker 04:
These are pretty bad.

[00:36:36] Speaker 04:
But I'm looking at it holistically.

[00:36:38] Speaker 04:
And I think considering the total of 22 years, six months in one day, or 22 years in one day,

[00:36:46] Speaker 04:
Looking holistically, I think seven years is about right.

[00:36:53] Speaker 04:
In doing that, you're not thinking about what might happen in a federal court.

[00:37:00] Speaker 04:
And your job is not to accommodate the federal sentencing guidelines as a state judge.

[00:37:06] Speaker 04:
And you don't have any intent to allocate anything to any particular case.

[00:37:14] Speaker 04:
Why is that?

[00:37:15] Speaker 04:
And that indicates there is no evidence, and there will be no evidence.

[00:37:20] Speaker 04:
Why is that a wrong way to look at this?

[00:37:22] Speaker 00:
I don't think it is.

[00:37:23] Speaker 04:
I think there is a... Well, that means a reversal because there's no evidence.

[00:37:32] Speaker 01:
Correct.

[00:37:34] Speaker 01:
I'm not going to tell you that's wrong.

[00:37:35] Speaker 01:
I think that's one way to view it.

[00:37:38] Speaker 01:
Okay.

[00:37:38] Speaker 01:
On this closed record?

[00:37:41] Speaker 01:
On what we have right now.

[00:37:42] Speaker 01:
Yes, and so if that means we go back and Mr. Montano is re-sentenced in criminal history category five, then that's what happens.

[00:37:50] Speaker 04:
Thank you.

[00:37:51] Speaker 04:
You were very helpful.

[00:37:53] Speaker 03:
Thank you.

[00:37:54] Speaker 03:
Thank you.

[00:37:56] Speaker 03:
Ms.

[00:37:56] Speaker 03:
Settleman, two minutes for you.

[00:38:04] Speaker 02:
I think that this court should describe the case on the record before it.

[00:38:09] Speaker 02:
The government had ample opportunity

[00:38:11] Speaker 02:
to prove the sentence is imposed for each conviction.

[00:38:14] Speaker 02:
And we provided the district court with the state court records.

[00:38:18] Speaker 02:
And the most that can be gleaned from those records is that he belongs in criminal history category five.

[00:38:24] Speaker 02:
The government.

[00:38:25] Speaker 04:
Could you comb that record for either a transcription by a court reporter or a video recording?

[00:38:32] Speaker 04:
I know that's not part of the record.

[00:38:35] Speaker 02:
I'm not.

[00:38:36] Speaker 02:
I don't think so, since that's not on the record.

[00:38:39] Speaker 02:
I don't think that the trial attorney had access to those things.

[00:38:45] Speaker 02:
And it is the government's burden.

[00:38:46] Speaker 02:
And the government also has not offered anything for the proposition that if sentences are fully suspended, then the court would specify that.

[00:38:58] Speaker 02:
And there's certainly

[00:39:02] Speaker 02:
it does have to offer evidence that they each would be worth three points.

[00:39:06] Speaker 02:
That is the government's burden.

[00:39:07] Speaker 02:
The pre-confinement credit doesn't establish anything, because that could have been the time that he served in custody between the various offenses.

[00:39:15] Speaker 02:
So for those reasons, we ask that this court reverse and remand to the district court with instructions to sentence him in category five.

[00:39:24] Speaker 02:
Thank you.

[00:39:25] Speaker 03:
Thank you for your very helpful arguments.

[00:39:27] Speaker 03:
The case will be submitted.