Herbert Ross Montanye v. United States

finding in nye objected to the his PSR ARNOLD, S. Chief Before RICHARD methamphetamine could 37.5 FAGG, Judges. Judge, Circuit BRIGHT precursor produced have been with According chemicals found the lab. ARNOLD, Judge. Chief RICHARD S. pro- Montanye, assumed one the PSR method, laboratory had ac- but the serving two duction Ross Herbert con- conspir- tually used another. 30-year prison terms concurrent laboratory produced could manufacture metham- tended acy attempt Sachs, presented in are 2. The facts of United States Dis- 1. The Hon. Howard F. I, greater 962 F.2d at 1337- detail in the Western District of Missouri. trict methamphetamine. with kilograms methamphetamine grams of manufacturable only 12 I, Therefore, Mr. at 1347. the chemicals hand. level Montanye argued, base offense banc, and reheard the case en Our Court responsibility for have reflected should attempt affirmed both conviction6 37.5, kilograms.3 Mr. did II, 30-year 996 the sentences. however, object, the that to statement PSR’s that, The en observed F.2d 190. banc Court production capacity was “reason- the lab’s 52(b), court of Fed.R.Crim.P. a under § 1B1.3.4 ably foreseeable” under U.S.S.G. may question not raised peals not consider a PSR, includ- adopted Court The District (1) the dis- at trial unless the defendant was finding capacity that the lab’s (2) rule; legal deviated a trict court from two kilograms. added 37.5 The Court (3) and affected the plain; error is the error Montanye’s Mr. level for points to offense at 192. rights. substantial Id. defendant’s 30-year escape, imposed concurrent two agreed The Court with Mr. sentences, penalty the minimum under objects that conspiracy a “when defendant Guidelines.5 drugs quantity of to the defen- attributed panel a appeal, of this Court reversed On reasonably foresee- [is] dant the PSR not Montanye’s re attempt conviction and Mr. defendant, court must able to the the district his conviction for resen- manded foreseeability finding about the ob- make a I, at tencing. 1346-47. But, the jecting defendant.” Court Ibid. Although appealed Mr. had observed, a or decides when defendant fails sentence, 30-year panel a concluded that object find- not to to PSR’s delivering glassware was prison stint for lab rely may simply court on the ing, a tidal sufficiently miscarriage justice,” “gross a Ibid, (citations omitted). Report. This is Appel suspend to Rule of offensive Federal in Mr. Monta- what the District Court did 28(a)’s requirements. Procedure usual late therefore, nye’s case and the en banc Court view, panel’s In the when Mr. at 1347. Id. found, legal a rule.7 it did not deviate from flasks, Montanye agreed to he deliver the more, continued, Mr. What’s Court how little meth not know much or how “did Montanye’s claim did not the record pro co-conspirators amphetamine was, finding even if support Relying duce.” Ibid. on United States true, help him the dis- “[l]ike no to because

North, Cir.1990), and 900 F.2d 131 Unit obligation finding, the make a trict court’s to Edwards, 945 F.2d 1387 ed States obligation present evidence Government’s to denied, 973, Cir.1991), 112 cert. 503 U.S. only support of a PSR’s factual statements (1992), 1590, panel L.Ed.2d 308 S.Ct. disputes.” facts arises for the the defendant laboratory’s capacity decided Third, banc stated Id. the en Court “reasonably output were not foreseeable” if the had committed Montanye, that even District Court the District Mr. therefore error,” affect Mr. “plain to hold the mistake did not enough did not have evidence Court kilo- Mr. for all 37.5 sentence. Ibid. accountable evenly divided on offense level for 12 6. The en banc was 3. The base 36; kilograms, methamphetamine glassware it Montanye's delivery is for 37.5 is "whether mere 2D1.1(c)(3), (4). § manufacturing 38. U.S.S.G. step is a substantial towards II, methamphetamine....” Montanye 1B1.3, U.S.S.G. “relevant conduct” 4. Under observed, given dissenting judges at 192. As the includes: attempt split, Montanye’s conviction the even (a)(1)(B) jointly in the case undertaken precedential Id. at 195 "carries no value.” ..., activity all foreseeable criminal J., (Bright, dissenting). and omissions of in furtherance acts others activity. jointly undertaken criminal Gibson, concurring, R. ob- John As explained, minimum sen- "[t]hc 5. The trial court (360 served, range sentence appropriate it exceeds de- because tence life) even if would have been the same months expectancy life and the court believes fendant’s kilograms. only were Mon- the lab’s unduly deny all harsh defendant J., (Gibson, tanye concur- 194-95 prison in his late opportunity to be released from ring). 70s.” re- to meet Rule three issue before us now is whether Mr. therefore failed 52’s them, unconstitutionally quirements. deprived if he had Even met added, sentencing. re- of counsel at [its] it “would exercise effective assistance in this Mr. Monta- We think he not. medial discretion case.” challenge the nye “ample opportunity” foreseeability finding, but chose PSR’s A. production capacity. dispute the lab’s stead right The Sixth Amendment to coun choice, reasoned, the Court there Given strengthens protects funda sel both our nothing leaving unfair about due-process right fair mental trials. See from it.

with the resulted Washington, 466 Strickland v. U.S. 684- Ibid. 2062-63, 104 S.Ct. 80 L.Ed.2d Heeding dissenting judges’ suggestion the (1984). “recognizes the Our Constitution II,8 a Montanye in Mr. filed right the counsel to assistance of because vacate, aside, § 2255 to set or correct motion playing a role criti envisions counsel’s that is lawyer claimed that his his sentence. He ability system to cal to the of the adversarial he unconstitutionally ineffective because was 685, just at produce results.” Id. 104 S.Ct. object failed to to the PSR’s words, right at In other counsel to finding.9 mo- District Court denied the purpose; lawyer a an accused’s has a has tion, noting be fault that “it would difficult to Thus, job right “the constitutional do. argu- in a sense for not counsel constitutional right counsel is assistance effective output used ing that a ... must be nominal (cita 686, at counsel.” Id. 104 S.Ct. 2063 sentencing responsibility of assessing in [the] omitted). less-demanding interpreta A tion v. glassware supplier” (citing Strickland permit tion of Sixth Amendment “would 668, 2052, Washington, 80 466 104 S.Ct. U.S. injustice risk of to infect criminal serious (1984)). The also ob- L.Ed.2d 674 Court Delo, 71 F.3d 706 trials.” Driscoll v. “offerfed] served Mr. had (citation (8th Cir.1995) omitted). capacity used manufacturing to show that the thus atypical here was unforeseeable.” familiar framework Strickland’s appeals, affirm Mr. now and we analyzing claims re for ineffective-assistance judgment. the District Court’s right the link to counsel flects between ability system to “the of the adversarial II. just A produce results.” defendant “must that, performance fell be given the en that counsel’s We note at the outset establish and that ineffec opinion, professional II we need low standards banc Court’s his performance prejudiced defense.” not decide whether undeni- tive 10 States, ably “gross miscarriage Thompson 61 F.3d harsh is United Williams, I, Cir.1995); justice,” Montanye 962 F.2d at 1347. see sub- dissenting judges, [a] who have re- will be used manufacture controlled 8. The potentially than resentencing, suggested that bears a lesser sentence” manded for stance the case remedy received. The District post-conviction the sentence the one "a review challenging factfin- appropriate, competency of held that there was no basis for a Montanyc's failing had distribut- in der to conclude that Mr. counsel to raise glassware knowing it would be used to make of his co-con- ed obvious issue of the drugs, conspired meth- but not to manufacture spirators’ 996 F.2d conduct.” Thus, J., Montanye’s lawyer (Bright, dissenting). amphetamine. unconstitutionally ineffective because was not "[tjhere probability was ... reasonable no argued in 9. Mr. the District suggested in would have resulted the submission jury lawyer have that his should asked for charge conspiring acquittal of alternative or structions on an "lesscr-includcd” methamphetamine.” Mr. Mon- manufacture 843(a)(7) theory liability under 21 U.S.C. holding. challenge tanye does not manufacture, distribute, (conspiracy possess, jmport glassware equipment). prohibited or or view, sentencing, observed at prejudiced he "in 10.As the District Court In Mr. drug very are and that "sentences severe cases [a] that a conviction for to distribute knowing that it three neck flask is intentional.” round-bottom (Nov.1991). Cir.1993) kilogram capacity calls A 37.5 (requiring There level of 38. Id. for a base offense conduct caus- “unreasonably unprofessional” controversy court’s no about the district prove must more prejudice”). He “actual escape. of two offense levels mistake, addition lawyer; if than a mistake Thus, theory [that under defendant’s one, our confi- “undermine[] there is must ..., kilograms] capacity lab’s proceeding.” of the in the outcome dence 38, and under total offense level would be a hard Thompson, at 587. This is capacity theory lab government’s [the sell; easily undermined. confidence is our guideline kilograms], 40. The was 37.5 attorneys provide as- presume effective be- reveals considerable difference table sistance, strategic second-guess refuse to when the two offense levels tween these hindsight. exploit the benefits of or decisions history category is modest. Mon- criminal Ibid. however, tanye, points twelve history, there is no criminal about which B. history dispute. in a criminal This results Montanye insists that his law V, category both category of and with this produc yer argued that the lab’s should call a sentence levels 38 and 40 offense foreseeable, tive was not range to life. The sentence of 360 months only capacity contesting the itself. instead of minimum imposed months was the of 360 Montanye right, he must still if Mr. Even level. for either offense by lawyer’s prejudiced prove that he was (John R. Gib- cases, if In ineffective-assistance mistake.11 son, J., Thus, concurring). to win on his prove prejudice, “[w]e the defendant does claim, ineffective-assistance of the not address the reasonableness need that, lawyer argued the had his must show ” Williams, 994 attorney’s behavior.... a sentencing, there is issue at (regardless of counsel’s defense at 1291 probability the District Court reasonable that incriminating would have strategy, evidence responsible him for less would have found evidence). Because our into been admitted kilograms.12 than 12 confidence primary concern is our transcript Mr. Mon- reviewing the After counsel, verdict, profes if by even error “[a]n tanye’s sentencing proceeding, we are not unreasonable, not warrant set sionally does showing has been made. convinced that this pro judgment of a criminal ting aside the stated, sentencing, Court At District no effect on the ceeding if the error had pro- laboratory equipment would have “[t]he Strickland, 691, 104 466 U.S. at judgment.” times, kilograms if five [and used duced 2066; States v. see also United S.Ct. very to be a conser- would seem to me this] Cir.1993). Thomas, forecast of use....” vative explicitly con- The District Court did calculation for sen- drug-quantity noted analysis, but it’s two-step duct the Strickland “necessarily rea- tencing purposes looks to prejudice to Mr. found no clear the Court con- expectations_” The Court sonable lawyer’s alleged mistake. from his tinued, noted As Gibson also find none. laboratory if the to me that [i]t seems concurrence, in his II pro- equipment only five times would used surely kilograms, it is not calls for a base duce 40 kilogram capacity [and] The 12 2Dl.l(c)(4) by anyone legal in either a or § intended of 36. U.S.S.G. offense level now on him gov- prove ineffective assistance repeatedly insists that quantity proving prejudice. showing ernment has the burden unreasonable conduct drugs defendant is which a responsible. But if the defendant This is true. Actually, methamphetamine quantities be- may adopt object, the PSR’s the Court does not carry kilograms a offense base tween 10 Granados, 962 F.2d findings. United States 2D1.1(c)(4). Mr. Monta- level of 36. U.S.S.G. (citation omitted). 767, 771 n. 1 Cir. nye he could have to show that would therefore the foresee- did not raise Because Mr. reasonably ten foreseen less than have arguing sentencing, ability and is now issue at would be affected. before his sentence counsel, the burden is assistance of ineffective III. only equipment illegal business use twice, ... ... I think that once or To summarize: Had Mr. law- five expectation using equipment PSR, yer objected the District Court method of quite times is conservative required would have been to make individual- determining capability production findings concerning drug quantities ized expectations reasonable of what reasonably foreseeable Mr. carry conspiracy.... out done to joined. scope of the conspiracy within the he made, findings if there is But those been that he Rejecting contention petitioner no reasonable likelihood that would only participant, a “minor” responsible have been found for less than 10 transport- that “the observed defendant kilograms. major supplier He was a of so- knowing carrying he and the ed what ” equipment. go- phisticated He knew it was Furthermore, in its order purpose of it.... laboratory. illegal to run an to be used below, repeated its belief the District Court operators get He tried to the laborato- government’s drug-quantity estimate him ry to allow to distribute some of their of deter- reflected a “conservative method product. He has not shown that a reason- production mining capability of and reason- person place have fore- able would not expectations of would be done able what laboratory produce at seen that would added, carry conspiracy.” out the The Court kilograms. argue He least 10 does not lim- productive capacity if was as even the could counsel should or have offered evidence sentencing, petitioner argued at use ited as laboratory of the antic- size would equipment five times of the ipated produced less. petitioner. charged exceed the case, Thus, re- Presumably together a labo- put those who manufacturing capaci- sponsible for the lab’s ratory expect it to than once. be used more merely of the ty, operation because the may ... the calculation be In that sense foreseeable, the lab’s lab was but because modest or conservative. considered specifi- was foreseeable. More cally, operation of that could and lab Finally, “[ajgreeing to the Court stated that least 10 of meth- produce would $6,000 manufacturing supply some worth of scope amphetamine was both of within respon- impose ... equipment would seem Montanye’s conspiratorial agreement likely process. sibility product for the or, reasonably foreseeable to him— that the Petitioner does not offer to show rate, any we are sure the District atypi- manufacturing capacity was used here if trial still have so even Court would found cal and thus unforeseeable.” requested finding for specific counsel had have findings District could The Court’s now which defendant contends. Nonetheless, explicit. consider- been more reasons, judgment we affirm the For these together, we think ing all these statements appreciate the District Court. We found that it was foreseeable the Court diligent post- in this pointed counsel’s service laboratory proceeding. conviction produce times and that it would used several kilograms methamphetamine. at least 10 BRIGHT, Judge, dissenting. Circuit think Mr. sentence do not We I dissent. any coun- been had his would have different brought objected, has sel district I for third time the address might prove foreseeability nothing proper to our attention which make failure to court’s laboratory Montanye’s original have need- In The in case. findings otherwise. this produce dissenting judge the ten wrote the appeal, to be used twice to this ed direct peti- joined kilograms necessary justify majority by in States opinion United or more Judge Henry District Woods Because Senior tioner’s sentence. Judge Fagg dissented. concluded prejudice, ineffective-assis- not shown his has not be claim could sentenced fails. tance-of-counsel this, he of Missouri. For co-conspirators “pro- then State methamphetamine not for the entire was held accountable was not reason- because the amount duced” him; is, co-conspirators produced but the activities amount ably foreseeable they might amount stead for the entire did not fall within co-conspirators of his At produced the lab not been seized. them. scope agreement with See of his sentencing, Montanye’s counsel failed Montanye, 962 F.2d v. United States (8th Cir.1992) and indeed con- (Montanye raise the issue did not know Montanye should be held accountable methamphetamine ceded how little how much or laboratory capa- was the full amount the produce, par- he never co-conspirators would producing. manufacturing or dis- ble of ticipated process in methamphetamine, and district tributing rejecting incompe- court in The district evidence to find possessed insufficient court by giving a tency of contention did so counsel methamphet- for all responsible reading to United States crabbed and narrow produced). amine (7th Cir.1991) Edwards, v. North, v. 900 F.2d 131 by the States That was later vacated United decision Cir.1990). reading wrong. I this hearing. The en banc believe grant an en banc Valencia-Lucena, See, e.g., forfeit- United States majority decided that then (1st Cir.1993) (“criminal by failing to raise issue ed the widely. Individ- net is often east in court. the district may involved who know that Cir. uals be Montanye, 996 F.2d 192-93 they illegal but authority agreement have entered (reasoning court lacked way magnitude or any have no to foresee the question in event because to consider enterprise, in the case of ambition of the as required to make fore- court is not district remedy unexpected objects hired to an individual seeability findings unless defendant conspirators’ plot”). preju- complication the main Montanye did not show to PSR and dice). joined by Judges McMilli- In a dissent majority part here relies Arnold, we stated an and Morris S. affir- R. concurrence for its John Gibson’s thirty-year for deliver- concurrence, Judge Gibson mance. In that ing glassware grossly unfair because capacity of productive calculated the assumed does not show that “the record before us laboratory methamphetamine that never quantity methamphet- knew the projected operated in the manner produced by co-conspirators.” amine to be speculations have noth- prosecution. These Id., open the The en banc case left at 195. Indeed, foreseeability. no with to do remedy. post-conviction possibility of a yet any proper court has made support findings as a basis to brought this 28 U.S.C. then motion, thirty-year prison sentence. This omission arguing was inef- § his counsel directly counsel’s ineffective assis- foresee- flows from failing in to raise the issue of fective failing sentencing in to raise tance at ability sentencing. The record shows then well two-year issue which was con- in the course of an extensive comment, (n. 1B1.3, long known. U.S.S.G. Montanye in effect took one See spiracy, 1) (November (in jointly call, case of under- bought glass- telephone some distance interstate, activity, defendant accounta- ware, paid taken criminal transported got conduct where it was “reason- $6,000, appears to ble for others’ went home. This and by ably foreseeable the defendant.... conspira- with the contact been [wjhere that the conduct was it is established government’s attempts at this cy, despite the scope of the defendant’s neither within dredge up statements late date to reasonably foreseeable agreement, nor was possibility of during trip about the made activity the the criminal in connection with methamphetamine for the con- distributing undertake, jointly such agreed to claims the defendant spiracy. government The itself establishing is not included already ongoing- an conduct methamphetamine was guide- level under this defendant’s offense flasks were operation before the additional line”). Montanye, even acquired by and he was not previously ery president from I to the views Eisenhower to Clinton.

While adhere writer, enforcers, Montanye, But 962 F.2d at the law makers and law stated 195-96, administration, 1347; Congress Montanye, 996 F.2d at and the seem to problem turn thirty-year imposed on Monta- a deaf ear to the and to the unnecessary, taxpayer the learned immense to the nye improper, nevertheless cost lengthy judge imposed unnecessary un- of incarceration of has this sentence district majority drug guidelines and the has offenders. der the ordinary proved. By any measure outside judges I think it can are be said I think this sentence guidelines, would vitally drug problem concerned with the draconian, unnecessarily would be considered emotion, Reason, not be America. must The defendant’s harsh and unreasonable. brought subject. to bear on the What are furnishing thirty years incarceration for judges to do about these unreasonable sen- conspiracy, glassware to the tencing apply? I rules which we must gram incidentally one which never delivered try suggest that we must to make our consumer, public drugs any will cost the loudly clearly. views known $21,995per year figures on 1995 based writer, As for this I intend to cite to this $650,000 for the full thir- approximately over opinion every drug addendum in its ty-year sentence. present system case where I believe the repeat I suggests requires sentencing judge impose should This result previously urge my I wrote in United States v. I what unreasonable sentence. (8th Cir.1995). I Eiveley, similarly, com- judges, speak out and fellow sentencing guidelines as fol- opinions subject. mented on on this The write unnecessary, public lows: needs know that drug harsh and unreasonable sentences judges Federal who sentence offenders serve to waste billions of dollars without problem. 86.4% of district know doing good society. much have an changing current sen- judges support system.14 tencing increase the discretion of unreasonable rules to judge; support repealing 70.4% most circuit, message judges, district and mandatory sentencing all minimum Congress can send and the President judges of all district feel that federal 82.8% you If want to save billions for the this: mak- judges appropriate decision anyone, country harming take a without severity of sanc- ers about the nature and change sentencing look at and rules imposed in criminal cases. tions to be speak If now in the federal courts. we sentencing than half would eliminate More they, perhaps and the with a united voice Center, Plan- guidelines. Federal Judicial public, will listen. a 1992 ning the Future: Results Id., at 1365-1366. Survey Center Federal Judicial Accordingly, I dissent. (1994). Judges judges.” headed These are not “soft crimi-

They on the front lines of the serve they justice system and know of what

nal They represent appointees of ev-

speak. 1995, mandatory average unfairness of minimum cost the obvious In Fiscal wc estimate $60.26, Goebel, sentences); day per with an aver- per inmate will be United States $21,995. J., age 675, concurring) annual amount of (Bright, Cir. 679 Hawk, Director, Sentencing pro United (observing Letter from Kathleen M. Guidelines that the Justice, Department of Federal Bureau of sentencing disparate results and unfair duce Prisons, Bright (July Myron H. to the Honorable offenders); among United States similar 1995) (on 6, Judge Bright). file with O’Meara, 1216, (8th Cir.) (Bright, 1221 denied, J., dissenting), 498 U.S. cert. commentaries on have written other I (1990) ("This case S.Ct. 112 L.Ed.2d See, Griffin, guidelines. e.g., States v. opens bizarre the window on the sometimes J., 1994) (Bright, dissent Cir. F.3d ing) (addressing sentencing the Guide topsy-turvy under world consistency myth in sen lines.”). commenting under the Guidelines tences

Case Details

Case Name: Herbert Ross Montanye v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 5, 1996

Citation: 77 F.3d 226

Docket Number: 95-1837WM

Court Abbreviation: 8th Cir.