Montes v. United States

Background

Brandon Montes pleaded guilty to conspiracy to distribute and possess with intent to distribute heroin. The court sentenced him to 120 months’ imprisonment on October 1, 2019. The court had classified him as a career offender under the federal sentencing guidelines, which produced an advisory guideline range of 188 to 235 months. The court imposed a sentence below that range after finding that the range was somewhat longer than necessary to meet the goals of sentencing.

Montes appealed, but the Court of Appeals dismissed the appeal based on the appeal waiver in his plea agreement. On September 22, 2022, Montes filed a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence. Proceeding without a lawyer, he claimed that his sentencing and appellate counsel were ineffective because they failed to challenge his career-offender classification.

Ineffective-assistance claims

The court applied the two-part test for ineffective assistance of counsel: Montes had to show both that his lawyers performed below an objectively reasonable standard and that their performance caused prejudice, meaning a reasonable probability of a different result.

First, Montes argued that his 2004 conviction for attempted sale or distribution of a controlled substance should not have counted as a controlled-substance offense under the career-offender guideline. The court rejected that argument. The guideline’s application note expressly includes attempts to commit qualifying controlled-substance offenses. The court concluded that, when Montes was sentenced, controlling Second Circuit precedent made it reasonable for counsel to treat the application note as authoritative. The court also concluded that a later Supreme Court decision did not make counsel’s decision unreasonable, and that the existence of contrary decisions from other federal appeals courts did not change the result.

Second, Montes argued that his 2017 attempted-murder and manslaughter convictions should not have counted as crimes of violence because offenses requiring only reckless conduct do not qualify. The court found that argument did not apply to the attempted-murder conviction because the relevant state offense required purposeful conduct, which is more demanding than recklessness. The court therefore held that appellate counsel reasonably declined to raise the proposed challenge.

Prejudice

The court separately held that Montes could not show prejudice even if counsel’s performance had been unreasonable. Without the career-offender classification, the applicable guideline range would have been 168 to 210 months, but Montes received a 120-month sentence. The court also had departed below the guidelines for reasons independent of his criminal-history category and offense level. The court therefore found no reasonable probability that Montes would have received a shorter sentence.

Disposition

The court denied Montes’s § 2255 petition. It also held that he had not made the required substantial showing that a constitutional right was denied, so no certificate of appealability would issue. The court certified that an appeal would not be taken in good faith and denied permission to proceed without paying filing fees. The clerk was directed to close the civil case and terminate the associated motion.