United States Court of Appeals 

For the First Circuit 

No. 15-1779 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

BRIAN ERICK MONTES-FOSSE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Francisco A. Besosa, U.S. District Judge] 

Before 

Torruella, Selya, and Barron, 

Circuit Judges. 

Lydia Lizarríbar-Masini, on brief for appellant. 

Susan Z. Jorgensen, Assistant United States Attorney, Rosa 

Emilia Rodríguez-Vélez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division, 

on brief for appellee. 

May 31, 2016 
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TORRUELLA, Circuit Judge. After Defendant-Appellant 

Brian Erick Montes-Fosse ("Montes") pled guilty to aiding and 

abetting the robbery of a postal worker, the United States District 

Court for the District of Puerto Rico sentenced him to a term of 

51 months' imprisonment and 3 years' supervised release. During 

the sentencing hearing, the district court determined that Montes 

should receive a sentencing enhancement under the United States 

Sentencing Guidelines (the "Guidelines") because a firearm was 

brandished or possessed during the robbery. The district court 

also found that Montes was not entitled to a downward adjustment 

for playing a minor role in the offense. Montes now appeals his 

sentence. We affirm. 

I. 

When a defendant appeals after a guilty plea, "we glean 

the relevant facts from the change-of-plea colloquy, the 

unchallenged portions of the presentencing investigation report 

(PSI Report), and the record of the disposition hearing." United 

States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). 

On June 30, 2014, the victim -- a United States Postal 

Service ("USPS") worker -- was delivering mail in Mayagüez, Puerto 

Rico. The victim was seated in her USPS vehicle when Alipio SotoMontalvo ("Soto") approached. With a gun in hand, Soto demanded 

that the victim turn over the packages in her vehicle. After she 
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placed several parcels on the front seat, Soto took two or three 

of the packages and fled the scene on foot.

Montes had driven Soto to the scene. Montes would later 

acknowledge having "taken [Soto] earlier the day to the place where 

the robbery occurred for the purpose of committing that robbery." 

At some point after the robbery, a witness at the housing project 

where both men lived overheard them discussing the crime and 

"warning of a heavy police presence" in the area.1

Montes and Soto were arrested in October and September 

2014, respectively. Montes pled guilty to one count of aiding and 

abetting the robbery of a USPS employee under 18 U.S.C. § 2114(a) 

and § 2, and Soto to aiding and abetting the carrying, using, and 

brandishing of a firearm during and in relation to a crime of 

violence under 18 U.S.C. § 924(c)(1)(A)(ii) and § 2.

Under Montes's written plea agreement, Montes and the 

Government agreed to the following Guidelines recommendations: 

Montes would receive a base offense level of 20 under 

U.S.S.G. § 2B3.1(a), with a 2-level increase because post office 

property was taken under U.S.S.G. § 2B3.1(b)(1); a 5-level 

increase because a firearm was brandished or possessed during the 

robbery under U.S.S.G. § 2B3.1(b)(2)(C); a 3-level reduction for 

 

1 It is unclear from the record whether Montes was warning Soto 

or vice versa. 
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acceptance of responsibility under U.S.S.G. § 3E1.1; and a 2-level 

reduction in light of Montes's minor role in the crime under 

U.S.S.G. § 3B1.2(b). Montes reserved the right to argue against 

the 5-level weapons enhancement. With that enhancement, the 

Guidelines calculation yielded a total offense level of 22, which 

correlates to a Guidelines range of 41 to 51 months' imprisonment 

for an offender with a Criminal History Category ("CHC") of I.2

At the sentencing hearing, the district court applied 

the 5-level weapon enhancement and rejected the parties' joint 

recommendation for a 2-level minor role reduction, both over 

objections from Montes. Based on a total offense level of 24 and 

a CHC of I, Montes had a Guidelines range of 51 to 63 months' 

imprisonment and was sentenced to 51 months' imprisonment and 3 

years' supervised release. 

II. 

Where, as here, "the moving party raises an objection 

below, sentencing determinations are reviewed for abuse of 

discretion," with the district court's factual findings subject to 

clear error review and its interpretation of the Guidelines to de 

 

2 The parties did not stipulate as to a CHC in the plea agreement. 
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novo review. United States v. Lasseque, 806 F.3d 618, 623 (1st 

Cir. 2015). 

A. U.S.S.G. § 2B3.1(b)(2)(c): Brandishing a Firearm 

Section 2B3.1 of the Guidelines provides a 5-level 

increase "if a firearm was brandished or possessed" during the 

commission of a robbery. U.S.S.G. § 2B3.1(b)(2)(c). During the 

sentencing hearing, the Government contended that "it would be 

impossible for Mr. Montes not to have known that [Soto] had a 

firearm," as Soto was carrying the gun "at all times" before the 

robbery. To the contrary, Montes contends that this enhancement 

is inapplicable because the evidence did not demonstrate that he 

had advance knowledge of the gun. See Rosemond v. United States, 

-- U.S. --, 134 S. Ct. 1240, 1248-49 (2014). But, for purposes 

of § 2B3.1(b)(2)(c), "the proper inquiry is whether the district 

court could find, by a preponderance of the evidence, that it was 

reasonably foreseeable to [Montes] that [Soto] would brandish or 

possess a weapon during the robbery," and "not whether [Montes] 

had actual knowledge of the gun prior to the robbery." Lasseque, 

806 F.3d at 624. Indeed, when imposing the enhancement, the 

district court noted that the Guidelines contained no knowledge 

requirement. 

"We have stated before that guns are often 'tools of the 

trade' when it comes to certain offenses, and that an awareness of 
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the general plan is sufficient to infer knowledge that the weapons 

would be used to carry that plan through to completion." Id. 

Accordingly, we have determined that the use of a gun is reasonably 

foreseeable in the context of bank robberies, see id., and certain 

drug offenses, see United States v. Fermin, 771 F.3d 71, 83 (1st 

Cir. 2014). Soto contends that, as opposed to a bank robbery or 

drug deal, "a knife or blade could have sufficed to rob a single 

postal worker on duty delivering packages." The possibility that 

Soto may have used a less deadly weapon, however, does not mean 

that the use of a gun was not reasonably foreseeable. Montes does 

not dispute that he was aware that Soto had ventured to that area 

for the purpose of robbing a postal worker in broad daylight: 

even if Montes had not seen the weapon, as he contends, it would 

have been reasonably foreseeable that Soto would use a gun to 

ensure that the postal worker gave him the packages and in case he 

encountered any resistance from the victim herself or any other 

passerby or authority. See United States v. Spinney, 65 F.3d 231, 

237 (1st Cir. 1995) ("[N]ot even the most sanguine criminal would 

expect clear sailing without some menace in the wind."). 

Accordingly, the district court did not clearly err in determining 

that the application of § 2B3.1(b)(2)(c) was warranted here. 
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B. U.S.S.G. § 3B1.2(b): Minor Participant 

Section 3B1.2 of the Guidelines allows for a 2-level 

reduction where "the defendant was a minor participant" in the 

offense. U.S.S.G. § 3B1.2(b).3 A minor participant is one "who 

is less culpable than most other participants in the criminal 

activity, but whose role could not be described as minimal." 

U.S.S.G. § 3B1.2 cmt. 5. The defendant bears the burden "of 

proving that he is both less culpable than most others involved in 

the offense of conviction and less culpable than most other 

miscreants convicted of comparable crimes." United States v. 

Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir. 2000). "Role-in-the 

offense determinations are notoriously fact-sensitive," and the 

district court's decision to apply a minor-role reduction is 

subject to clear error review. Id. at 148-49. Accordingly, 

"absent a mistake of law, battles over a defendant's status will 

almost always be won or lost in the district court." Id. at 149 

(internal formatting omitted) (quoting United States v. Graciani, 

61 F.3d 70, 75 (1st Cir. 1995)). 

 

3 As a threshold matter, Montes contends that the Government's 

arguments on appeal that he did not play a "minor role" qualify as 

a breach of the plea agreement. Because it is clear under our 

case law that the district court did not clearly err in determining 

that Montes was not entitled to this adjustment, we need not decide 

whether the Government's arguments, made on appeal but not before 

the district court during sentencing, should be disregarded. 
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This case, however, gives us pause. Montes has 

consistently denied that he was involved in the planning of the 

crime, and neither the Government nor the Probation Office has 

stated otherwise. The record establishes only that Montes drove 

Soto to the scene of the crime (albeit with full knowledge that a 

crime would be committed) and later discussed the heavy police 

surveillance in the area with Soto. During the sentencing 

hearing, however, the district court implied that Montes "scope[d] 

out the place" prior to the robbery. As Montes suggests, the use 

of the phrase "scope out" suggests that Montes was involved in the 

planning of the offense. In the circumstances of this case, a 

statement by the district court inflating a defendant's role in 

the crime, without any record basis for this assertion, may well 

be an indicator of error. 

Nevertheless, the district court's subsequent statements 

indicate that it understood Montes's more limited role in the 

offense. After the district court expressed its doubts as to the 

minor role adjustment, defense counsel clarified that Montes only 

"drove . . . [Soto] to this place and left him there," to which 

the district court replied, "I know, but he was taking him to the 

place where the robbery occurred for the purpose of committing the 

robbery, so he knew a robbery was going to be committed." In 

light of this exchange, we are satisfied that the district court 
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understood that Montes did not help plan the offense. Rather than 

basing its conclusion on Montes's involvement in the underlying 

scheme, the district court clarified that the act of driving his 

accomplice to the scene of the crime, with full knowledge of what 

was to ensue, precluded a minor-role adjustment in this instance. 

To be sure, we typically have upheld a district court's 

decision not to grant a role-in-the-offense adjustment where the 

defendant has more extensive involvement in the underlying crime. 

See, e.g., United States v. Meléndez-Rivera, 782 F.3d 26, 29 (1st 

Cir. 2015) (affirming denial of minor role adjustment where "the 

appellant was present for the planning of the scheme and deeply 

involved in its execution"); Vargas, 560 F.3d at 49-51 (affirming 

the denial of a minor-role adjustment "in light of [the 

defendant's] prior participation in the transportation of 

contraband, his help in loading the truck, the amount of money 

paid to him, the quantity of drugs that had been entrusted to his 

care, and his willingness to discuss a role in future deliveries"); 

United States v. Morales-Machuca, 546 F.3d 13, 24 (1st Cir. 2008) 

(affirming denial of minor-role reduction where the defendant "was 

in telephonic contact with the other defendants who were physically 

participating in the robbery; was supposed to pick-up the 

defendants after the March 27, 2002 robbery; supplied the Taurus 

9mm pistol that [was involved in] the shoot-out; and enjoyed a 
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share of the stolen money"). Montes did not retrieve Soto from 

the scene, provide a weapon, assist in planning the crime, or take 

any of the stolen packages following the robbery. Still, our 

deferential standard of review militates against reversal. 

No defendant is entitled to a minor-role downward 

adjustment. See United States v. Santos, 357 F.3d 136, 143 (1st 

Cir. 2004) ("[E]ven those who serve purely and simply as drug 

couriers are not automatically guaranteed mitigating role 

reductions."); cf. Meléndez-Rivera, 782 F.3d at 29 ("[A] defendant 

need not be the key figure in a conspiracy in order to be denied 

a mitigating role-in-the-offense adjustment."). The district 

court found unpersuasive the fact that Montes did not have more 

extensive involvement in the robbery: according to the district 

court, Montes drove the assailant to the scene of the crime, 

knowing full well that the assailant would commit robbery. See 

United States v. García-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011) 

("The fact that some other accomplice may be more culpable than 

the defendant does not necessarily mean that the defendant's role 

in the offense is minor.").4 The district court's determination 

was not unreasonable, and we therefore affirm its decision not to 

 

4 Indeed, Montes makes only a passing argument that he is "less 

culpable than the mine-run of those who have committed similar 

crimes," a required showing for those hoping to avail themselves 

of the minor-role reduction. García-Ortiz, 657 F.3d at 29. 
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grant Montes a minor-role downward adjustment. See United States 

v. Dilorio, 948 F.2d 1, 5 (1st Cir. 1991) ("[A] district court's 

determination under the Guidelines of a defendant's role in an 

offense cannot be clearly erroneous where it is based on a 

reasonable inference drawn from the undisputed facts."). 

III. 

Because we do not find that the district court clearly 

erred in either applying the weapons enhancement or in declining 

to apply a minor-role reduction, we affirm Montes's sentence. 

Affirmed.