PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ELIGIUS MONTANO, 

 Defendant - Appellant. 

No. 23-2030 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:22-CR-00894-KWR-2)

_________________________________ 

Violet Edelman, Assistant Federal Public Defender (Martín Juárez, Assistant Federal 

Public Defender, on the briefs), Office of the Federal Public Defender, District of New 

Mexico, Albuquerque, New Mexico, for Defendant – Appellant. 

Jaymie L. Roybal, Assistant United States Attorney (Alexander M.M. Uballez, United 

States Attorney, with her on the briefs), Office of the United States Attorney, District of 

New Mexico, Albuquerque, New Mexico, for Plaintiff – Appellee. 

_________________________________ 

Before ROSSMAN, KELLY, and MURPHY, Circuit Judges. 

_________________________________ 

MURPHY, Circuit Judge. 

_________________________________ 

I. Introduction 

In 2022, Eligius Montano pleaded guilty to robbing a Metro PCS store in 

Belen, New Mexico. At sentencing, the district court applied two relevant guidelines 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 23, 2024

Christopher M. Wolpert 

Clerk of Court

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enhancements: an increase in his offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(E) 

for creating the impression he was holding a firearm under his sweatshirt during the 

robbery; and an endangerment adjustment pursuant to U.S.S.G. § 3C1.2 for inducing 

his getaway driver to navigate recklessly. In calculating Montano’s criminal history, 

the district court noted that each of five consolidated state cases, which were resolved 

in a single judgment with one overarching sentence, included a charge or charges 

with possible prison terms exceeding thirteen months. As a result, the district court 

assigned each case the maximum three criminal history points pursuant to U.S.S.G. 

§ 4A1.1(a). 

Montano appeals, challenging the correctness of each of the district court 

actions summarized above. Given the available evidence, this court concludes the 

district court did not err in its application of § 2B3.1(b)(2)(E) or in calculating 

Montano’s total offense level in § 3C1.2. The evidence, however, did not support the 

district court’s attribution of three criminal history points to each of the five state 

cases. Thus, exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. 

§ 1291, this court remands the matter to the district court with directions to vacate 

the judgment and resentence Montano considering an advisory sentencing range 

calculated by reference to a criminal history category of V. 

II. Background 

a. Factual History 

On April 18, 2022, Montano and his father, Daniel Montano (“Daniel”), 

robbed a Metro PCS store in Belen, New Mexico. Two clerks were working when 

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Montano and Daniel entered the store. Montano and his father shouted at the 

employees to “put your hands where we can see them” and directed them to “get 

against the wall.” One clerk testified both men had their hands positioned in their 

sweatshirts to create the impression they were holding firearms. Despite the clerk’s 

belief and fear that a gun was present, further investigation revealed neither Montano 

nor Daniel possessed a weapon at the scene. After gaining control of the clerks, 

Montano guarded the front of the store while Daniel ushered one of the clerks around 

the store to facilitate the theft of various electronics. Shortly thereafter, the men left 

the store with a garbage bag containing roughly $8000 in merchandise. Following the 

Montanos’ departure, the clerks immediately contacted the police. 

As Montano and his father exited the store, the Metro PCS district manager 

happened to be traveling to the Belen franchise in her vehicle. As she approached the 

location, she witnessed the duo walk behind the store with a trash bag and enter a red 

Toyota, which had pulled up to meet the men. The driver of the vehicle was later 

revealed to be Jennah Payne, Daniel’s girlfriend. The manager was able to follow the 

getaway car in her vehicle and assisted officers in locating the Toyota as they 

responded to the robbery alert. 

As officers approached the Montanos’ getaway vehicle on the highway, the 

driver began maneuvering erratically. According to Payne’s statement to officers 

after the chase, Montano actively urged her to evade the police as they were being 

pursued. He demanded she “go, go” and “just fucking drive.” He also told her he was 

on parole and did not want to return to prison. Payne informed police that Montano 

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gave her specific advice about how to elude the authorities as she drove. After 

several miles of high-speed chase that involved weaving through traffic and illegally 

crossing the highway median multiple times, police successfully deployed spike 

strips to stop the car. When the vehicle came to a halt, Montano and his father 

quickly exited and unsuccessfully attempted to carjack two nearby automobiles 

before being apprehended. 

b. Procedural History 

Montano and his father were indicted for Hobbs Act robbery in violation of 

18 U.S.C. § 1951. Montano pleaded guilty to the charge without a plea agreement. 

The United States Probation Office prepared a Presentence Investigation Report 

(“PSR”) which applied two sentencing guidelines enhancements: (a) a three-level 

increase to the offense level for possession or brandishing a weapon under 

§ 2B3.1(b)(2)(E); and (b) a two-level adjustment under § 3C1.2 for recklessly 

creating a substantial risk of death or serious bodily injury to another person in the 

course of fleeing law enforcement. The brandishing-based increase in offense level 

was predicated on evidence Montano obscured his hand in his sweatshirt to create the 

appearance of a firearm. See U.S.S.G. § 2B3.1 cmt. n.2 (providing § 2B3.1(b)(2)(E) 

covers objects used “in a manner that create[] the impression that the object was an 

instrument capable of inflicting death”). The endangerment adjustment was based on 

evidence Montano induced Payne into driving recklessly in the getaway vehicle. See 

id. § 3C1.2 cmt. n.5 (applying the guideline to conduct the defendant “aided or 

abetted, counseled, commanded, induced, procured, or willfully caused”). 

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The district court adopted both §§ 2B3.1(b)(2)(E) and 3C1.2. It determined the 

clerk’s testimony regarding Montano’s placement of his hands during the robbery 

and evidence of his forceful demands substantiated the brandishing guideline’s 

application. Similarly, given the nature of the offense, Payne’s statement to police, 

and her hazardous driving, the district court concluded the record supported the 

application of the reckless endangerment adjustment. 

In calculating Montano’s criminal history category, the district court 

considered two prior state court judgments involving crimes committed between 

2016 and 2017. Only the criminal history points assessed for the sentences imposed 

in the first of these two judgments (the “December 2017 Judgment”) are at issue in 

this appeal.1

 The December 2017 Judgment consolidated five New Mexico state cases 

which resolved thirteen charges. Two of the cases resolved in the December 2017 

Judgment involve convictions for only a single crime: CR 2017-01101 (unlawful 

taking of a motor vehicle) and CR 2017-03304 (conspiracy to commit auto burglary). 

Both of these crimes are fourth degree felony offenses subject to a maximum term of 

eighteen months’ imprisonment. The other three cases resolved in the December 

2017 Judgment involve multiple charges with total terms of imprisonment of three, 

1

 The second judgment (the “May 2018 Judgment”) imposes a sentence of six 

years’ imprisonment to be served concurrently with the sentence imposed in the 

December 2017 Judgment. The district court’s criminal history calculation attributed 

the maximum possible three points to this six-year sentence of imprisonment 

pursuant to U.S.S.G. § 4A1.1(a). Montano does not challenge this determination. 

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four, and twelve years respectively.2

 [Id.] The state court imposed the maximum 

possible sentence on each of the thirteen criminal convictions resolved in the 

December 2017 Judgment:3

 a total sentence of one day less than twenty-two years’ 

imprisonment.4

 Nevertheless, it suspended all but seven years of that term. The state 

court did not allocate any part of the unsuspended seven-year sentence to any one of 

2

 CR 2017-03303 resolved the following two charges: receiving or transferring 

a stolen vehicle (a fourth degree felony) and aggravated fleeing a law enforcement 

officer (a fourth degree felony). The total possible maximum sentence available in 

CR 2017-03303, assuming both sentences were ordered to run consecutively, is three 

years’ imprisonment. CR 2017-01385 resolved the following three charges: receiving 

or transferring a stolen vehicle (a fourth degree felony); conspiracy to commit 

receiving or transferring a stolen vehicle (a fourth degree felony); and resisting, 

evading, or obstructing an officer (a misdemeanor). The total possible maximum 

sentence available in CR 2017-01385, assuming all three sentences were ordered to 

run consecutively, is four years’ imprisonment. CR 2017-01217 resolved the 

following six charges: residential burglary (a third degree felony); conspiracy to 

commit residential burglary (a fourth degree felony); larceny of at least $2501, but no 

more than $20,000 (a third degree felony); two counts of larceny of a firearm (each 

fourth degree felonies); and receiving or transferring a stolen vehicle (a fourth degree 

felony). The total possible maximum sentence available in CR 2017-01217, assuming 

all six sentences were ordered to run consecutively, is twelve years’ imprisonment. 

3

 The December 2017 Judgment lists the thirteen crimes for which consecutive 

sentences are imposed in the following order: (1) the single crime set out in CR 

2017-01101, which occurred on or about February 14, 2017; (2) the six crimes set out 

in CR 2017-01217, which occurred on or about December 8, 2016; (3) the three 

crimes set out in CR 2017-01385, which occurred on or about March 28, 2017; 

(4) the two charges set out in CR 2017-03303, which occurred on or about August 

27, 2017; and (5) the single crime set out in CR 2017-03304, which occurred on or 

about October 3, 2017. 

4

 Presumably, the one-day-less-than-twenty-two-years aspect of the sentence is 

meant to account for the single misdemeanor conviction resolved in CR 2017-01385. 

See N.M. Stat Ann. § 31-19-1 (providing that the maximum sentence for any 

misdemeanor is imprisonment “for a definite term less than one year”). 

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the five consolidated cases or thirteen sentenced convictions.5

 Instead, the dispositive 

paragraph of the state court judgment simply states as follows: 

The convictions shall be served consecutively for all purposes 

including any future parole/probation violations for an overall 

jurisdiction of twenty-two (22) years minus one (1) day. All but seven 

(7) years will be suspended, for an actual term of seven (7) years in the 

New Mexico Department of Corrections. Thirteen (13) years and onehundred and eighty-one (181) days of the sentence shall be suspended 

and the defendant will be placed on five (5) years of supervised 

probation. One (1) year and one-hundred and eighty-three (183) days 

will be suspended without condition. 

R. at 58. 

Pursuant to U.S.S.G. § 4A1.1, previous convictions receive criminal history 

points weighted according to the length of actual imprisonment. Three criminal 

history points are allocated for sentences of imprisonment exceeding thirteen months; 

two points for sentences of at least sixty days; and one point for sentences under sixty 

days. U.S.S.G. § 4A1.1(a)–(c). The PSR recommended allocation of the maximum 

three criminal history points to each of the five consolidated cases regardless of the 

maximum possible sentences for the crimes charged in each of the five cases. In total, 

the PSR assessed Montano twenty points,6 which resulted in a criminal history 

5

 The absence of allocation of the unsuspended sentence to any of the five 

cases is unremarkable. The parties have not furnished, and this court has not found, 

any New Mexico case, statute, or regulation that contemplates, expects, or requires 

such allocation. New Mexico courts generally have discretion to suspend or partially 

suspend sentences. See N.M. Stat. Ann. § 31-20-3; State v. Sinyard, 675 P.2d 426, 

428–29 (N.M. App. 1983). 

6

 This total calculation includes three criminal history points deriving from the 

May 2018 Judgment, see supra n.1., as well as two points because Montano 

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category of VI. See U.S.S.G. Ch 5 Pt. A (noting that category VI includes any 

defendant with thirteen or more criminal history points). 

The district court reached the same conclusion as the PSR in calculating 

criminal history points under § 4A1.1(a), resulting in a criminal history category of 

VI. In analyzing the issue, the district court determined: 

 Looking through each of these cases, they involved threat in one 

way or another, burglary, larceny, that type of thing. The Court must 

assume that it was the intent of the State Court for the defendant to 

spend time in custody on each of these cases and not cut off by going in 

order, as the defense has suggested, after you have reached [7 years] and 

spend no time after that for any of the cases after that, that are listed, if 

I’m making any sense, in this Amended Judgment and Partial Sentence. 

That is reasonable, and I believe the preponderance of the evidence 

supports that. 

. . . . 

And if you give each case 18 months, that is three, six, seven and a half, 

that’s somebody serving time, a little bit of time for each one. I just 

think it is supported, and I think that makes reasonable sense that the 

Court intended the defendant to spend time in custody for each of the 

cases. 

R. at 262–63. 

The district court then adopted the PSR’s recommendation and assigned Montano to 

criminal history category VI. After applying all relevant sentencing enhancements 

and deductions, the district court calculated Montano’s offense level to be twentytwo points, which resulted in a sentencing guideline range of 84 to 105 months. 

committed the PCS Store robbery while under supervised probation, see U.S.S.G. 

§ 4A1.1(d) (2021). Montano does not challenge either of these determinations. 

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Montano was ultimately sentenced to ninety-six months’ imprisonment, followed by 

three years of supervised release. 

III. Analysis 

a. Standard of Review 

“When evaluating the district court’s interpretation and application of the 

Sentencing Guidelines, we review legal questions de novo and factual findings for 

clear error, giving due deference to the district court’s application of the guidelines to 

the facts.” United States v. Zamora, 97 F.4th 1202, 1207–08 (10th Cir. 2024) 

(quotation omitted). Whether the facts found by the district court are sufficient to 

warrant an enhancement is reviewed de novo. United States v. Martinez, 602 F.3d 

1156, 1158 (10th Cir. 2010). “The government bears the burden of proving 

sentencing enhancements by a preponderance of the evidence.” United States v. Orr, 

567 F.3d 610, 614 (10th Cir. 2009). Similarly, the government generally has the 

burden of showing “facts necessary to justify the addition of criminal history points” 

by a preponderance of the evidence. United States v. Randall, 472 F.3d 763, 766 n.1 

(10th Cir. 2006); see also United States v. Servin-Acosta, 534 F.3d 1362, 1365 (10th 

Cir. 2008) (“The sentencing court may find that the defendant has a prior conviction 

if it is satisfied by a preponderance of the evidence.”). 

b. Brandishing Enhancement 

This court has clearly held that “a concealed hand may be an object which 

potentially triggers the three-level enhancement under § 2B3.1(b)(2)(E).” United 

States v. Farrow, 277 F.3d 1260, 1268 (10th Cir. 2002). We have been careful, 

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however, to ensure that “innocent conduct is not punished due solely to potentially 

unreasonable perceptions of particular victims.” Id. Thus, when analyzing the 

applicability of § 2B3.1(b)(2)(E) to an object, this court evaluates the witness’s 

subjective state of mind but does not consider it determinative. Id. Instead, we look to 

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.’” Id. (quoting United States v. Hart, 226 F.3d 602, 607 (7th Cir. 

2000)). 

Farrow considered a bank teller’s report that the defendant placed his hand in 

his pocket to mimic a gun while conducting a robbery. 277 F.3d at 1268. When he 

approached the bank counter, the defendant told the teller, “give me all the money, 

set it on the counter” and “don’t try anything funny. Don’t make a scene or I’ll do 

something reckless.” Id. at 1261–62. Although the district court considered the 

teller’s subjective observations in concluding the brandishing enhancement should 

apply, we determined the district court adequately considered other evidence in 

reaching its conclusion. Id. at 1268. Specifically, the district court “applied the threelevel enhancement to Mr. Farrow based on his actions and language at the scene, 

which included demands for money and threats.” Id. Additionally, the district court 

appropriately considered evidence that the defendant told investigators he had 

strategically positioned his hand in his pocket to give the appearance of possessing a 

firearm. Id. Under these facts, this court was “satisf[ied] . . . that the district court 

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assessed the evidence in light of the proper standard and that its findings were not 

based solely on the victim’s subjective perception.” Id. 

Here, Montano conducted himself similarly to the defendant in Farrow. The 

district court found he was credibly seen obscuring his hand to create the appearance 

of a weapon and he made forceful, directive comments in the context of stealing 

thousands of dollars’ worth of goods. The record reflects the district court relied on 

the totality of the circumstances in reaching its determination and there is nothing to 

suggest the factual assertions underlying the district court’s analysis were clearly 

erroneous. The district court here did not have the benefit of an express admission by 

the defendant, as was present in Farrow. Nonetheless, such evidence is not required 

for a court to apply the proper, objective standard. Id. Rather, courts must consider 

the perceptions of a reasonable observer under the circumstances, which can be 

informed simply by the “actions and language” of the defendant during the event. Id.; 

see also United States v. Tate, 999 F.3d 374, 384 (6th Cir. 2021) (“Through 

[defendant’s] menacing words coupled with using his hand and his shoulder bag, a 

‘reasonable individual’ would believe that [the defendant] had a weapon . . . .”); 

United States v. Davis, 635 F.3d 1222, 1227 (D.C. Cir. 2011) (noting the defendants’ 

demands for money; nervous demeanor; and motion to reach into a bag sufficiently 

corroborated a witness’s impression that the defendant possessed a weapon during 

the robbery); United States v. Maxwell, 90 F. App’x 305, 307 (10th Cir. 2004) (when 

analyzing § 2B3.1(b)(2)(E) “the district court . . . properly considered the entire 

context, including the timing of the movement of his hand to his pocket . . . , its 

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duration . . . , and his potentially threatening words”) (unpublished disposition cited 

only for its persuasive value).7

 Given the employee’s observations, the context of the 

robbery, and Montano’s forceful threats to limit the clerks’ movements, we conclude 

a reasonable person under these circumstances would have regarded his hand to be a 

dangerous weapon and the ensuing enhancement was properly applied. 

c. Reckless Endangerment Enhancement 

Section 3C1.2 contemplates a sentencing adjustment for reckless 

endangerment caused not only by a defendant’s personal actions fleeing from 

authorities, but also conduct of others the defendant “aided or abetted, counseled, 

commanded, induced, procured, or willfully caused.” U.S.S.G. § 3C1.2 cmt. n.5. In 

turn, this court has held that a defendant who is merely a passenger in a getaway 

vehicle can be responsible for the reckless actions of the driver. See United States v. 

Wilfong, 475 F.3d 1214, 1220 (10th Cir. 2007); United States v. Conley, 131 F.3d 

1387, 1391 (10th Cir. 1997). 

7

 Montano argues many cases evaluating analogous applications of 

§ 2B3.1(b)(2)(E) consider statements from the defendant to witnesses that either (a) 

expressly state the obscured hand or object is a weapon; or (b) threaten explicit harm. 

See e.g., Tate, 999 F.3d at 384; United States v. Stitman, 472 F.3d 983, 986 (7th Cir. 

2007). He contends his own statements fell short of these types of claims and, 

therefore, precedent does not support that a reasonable person would have interpreted 

he brandished a weapon. Certainly, such evidence is compelling in analyzing whether 

§ 2B3.1(b)(2)(E) applies. Similar facts, however, are not necessary to satisfy the 

objective standard. As explained above, evidence of threating statements, demands, 

and actions can substantiate brandishing without an express admission from the 

defendant or graphic threat of harm. See Farrow, 277 F.3d at 1268. 

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In United States v. Conley, this court considered a defendant who was a 

passenger in a getaway car subject to a high-speed chase similar to the one in this 

case. 131 F.3d at 1391. There, we recognized that “[t]he behavior of the car is not, in 

and of itself, a sufficient basis for a finding that Appellants procured the driver’s 

reckless behavior.” Id. Without evidence of what happened in the car during the 

chase, this court concluded that “the defendant’s conduct prior to the [crime]” was 

relevant for determining if he encouraged the reckless action. Id. We determined 

several aspects of the defendant’s behavior could support the application of a § 3C1.2 

enhancement, including: (a) “conscious[]” planning for a robbery which required a 

quick escape; and (b) committing such a crime, thereby supplying motive to abscond. 

Id.; see also Wilfong, 475 F.3d at 1220 (noting that defendant’s attempt to destroy 

evidence by throwing it out of the getaway car window as a passenger helped to 

substantiate defendant’s role as “an active participant in the chase” for purposes of 

§ 3C1.2).8

8

 In his appellate briefing, Montano attempts to factually distinguish Conley. 

Unlike here, in Conley (a) the defendants had guns and the driver did not, thereby 

creating a possibility of greater control over the driver; (b) the road conditions were 

icy and particularly dangerous; and (c) the defendants conceded they were trying to 

outrun the authorities. 131 F.3d at 1391. Although the presence of these facts 

contributes to a finding that § 3C1.2 applies, none are mandatory. See, e.g., Wilfong, 

475 F.3d at 1220. As noted in Conley, several factors inform whether the defendant 

induced recklessness. Many of these factors were present here, such as the nature of 

the driving, the timing of getaway, and the content of the crime. 131 F.3d at 1391. 

Additionally, the case at hand also involves compelling evidence of what occurred 

inside the vehicle during the chase, which reflects Montano’s direct role in the 

reckless getaway. 

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Here, there is no doubt that the vehicle was driven recklessly. See United 

States v. Brown, 314 F.3d 1216, 1221 (10th Cir. 2003) (explaining “reckless” for 

purposes of § 3C1.2 as being aware of and disregarding risk constituting a gross 

deviation from the standard of care expected of a reasonable person). Payne violated 

several traffic laws in an attempt to elude officers and jeopardized the safety of other 

drivers over the course of several miles. Similar to Conley, Montano’s conduct prior 

to and after the chase indicates motive to quickly escape authorities. He planned and 

committed a crime that required enlisting the services of a getaway driver to make a 

speedy departure from the scene. Montano and his father further underscored the 

urgency of their flight by attempting to carjack multiple vehicles after their own 

getaway vehicle was disabled. 

Unlike Conley, this case includes additional contemporaneous evidence from 

inside the car which implicates Montano’s role in encouraging the reckless driving. 

Payne’s statement to police emphasized Montano’s entreaty to drive quickly and his 

express efforts to direct her navigation. Montano argues Payne’s statement was 

merely hearsay that cannot sufficiently establish his actions inside the vehicle. 

Hearsay statements, however, “may be considered at sentencing if they bear some 

minimal indicia of reliability.” United States v. Damato, 672 F.3d 832, 847 (10th Cir. 

2012); see also U.S.S.G. § 6A1.3(a). Several facts lend credibility to Payne’s 

statement, including that her report was given in-person so the officer could assess 

her demeanor; her statement was self-inculpatory; and she implicated both father and 

son, rather than just shifting the blame onto Montano. See Damato, 672 F.3d at 847; 

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United States v. Smalls, 605 F.3d 765, 781 (10th Cir. 2010); United States v. Cook, 

550 F.3d 1292, 1297 (10th Cir. 2008).9

 Accordingly, we perceive no error in the 

district court’s reliance on her statement in analyzing the application of § 3C1.2. 

Even if Payne’s report was not properly considered, however, enough evidence exists 

of Montano’s conduct surrounding the crime to support the enhancement. Conley, 

131 F.3d at 1391. In light of Montano’s conscious efforts to execute a robbery, the 

clearly dangerous nature of the car chase, and Payne’s corroborating statement, we 

are convinced the government carried its burden to show the § 3C1.2 enhancement 

applied and comprehend no clear error in the district court’s factual findings 

underlying that conclusion. 

d. Criminal History Calculation 

Section 4A1.1 assigns criminal history points based on the length of 

imprisonment term imposed on prior criminal convictions. Convictions with 

9

 Montano argues Payne’s statements do not meet this minimal bar for 

reliability. He analogizes these facts to those in United States v. Fennell, 65 F.3d 812 

(10th Cir. 1995), which determined that an unsworn statement to a probation officer 

was not reliable enough to support an enhancement under U.S.S.G. § 2K2.1(b)(5). 

The statement in Fennell, however, was made telephonically “by an unobserved 

witness” and was “unsupported by other evidence.” Id. at 813–14. Here, that is not 

the case. As explained above, Payne’s statement was made more reliable by her inperson recitation, self-inculpatory acknowledgement, and lack of blame-shifting. As 

was true in Conley, Montano’s inducement of reckless driving was also supported by 

his need to escape quickly. See generally United States v. Ruby, 706 F.3d 1221, 1229 

(10th Cir. 2013) (“Corroborating evidence is often key to determining whether a 

statement is sufficiently reliable.”). Finally, the record does not support the argument 

that Payne’s statement exclusively and unfairly pinned blame on Montano. In fact, 

her statement of the conduct inside the car also contributed to her boyfriend Daniel 

receiving a § 3C1.2 enhancement at sentencing. 

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associated sentences of imprisonment exceeding thirteen months receive the 

maximum allotment of three points; convictions associated with shorter sentences 

receive as little as one point if the sentence falls below sixty days. U.S.S.G. 

§ 4A1.1(a)–(c). The narrow question on appeal is whether the district court erred in 

allocating fifteen criminal history points to the five cases resolved in the December 

2017 Judgment.10 To recapitulate, the December 2017 Judgment resolved five 

consolidated cases, each of which involved convictions for crimes such as burglary, 

larceny, and stolen vehicle offenses. The December 2017 Judgment imposed a 

statutory maximum sentence of almost twenty-two years’ imprisonment, but 

suspended all but seven of those years.11 The December 2017 Judgment does not 

indicate whether or what part of the seven-year unsuspended sentence was 

attributable to any of the five particular cases or thirteen separate convictions.12 But 

cf. United States v. Cruz-Alcala, 338 F.3d 1194, 1199 (10th Cir. 2003) (noting that 

the sentencing court clearly underscored how much prison time was included in a 

suspended sentence for purposes of § 4A1.1 analysis). The unsuspended sentence 

simply represented the total prison time to be served for the five consolidated cases. 

10 As noted above, Montano does not challenge the three criminal history 

points the district court allocated to the May 2018 Judgment or the two criminal 

history category points the district court allocated pursuant to U.S.S.G. § 4A1.1(d) 

(2021). See supra nn. 1, 6. 

11 Under § 4A1.2(b)(2), “[i]f part of a sentence of imprisonment was 

suspended, ‘sentence of imprisonment’ refers only to the portion that was not 

suspended.” 

12 See supra n.5 and corresponding text. 

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The PSR recommended, and the government argued, that each of the five cases 

resolved in the December 2017 Judgment should be allocated the maximum three 

criminal history points. The only evidence offered to support such an approach was 

the December 2017 Judgment itself, along with the factual recitations of the 

underlying convictions in the PSR. In its analysis of Montano’s criminal history 

calculation, the district court began by criticizing the state court’s judgment.13 It then 

interpreted the judgment, emphasizing that each of the five cases involved a “threat 

in one way or another, burglary, larceny, that type of thing.” In turn, it concluded the 

preponderance of the evidence supported the assumption “it was the intent of the 

State Court for the defendant to spend time in custody on each of these cases.” In 

accordance with the PSR, the district court proceeded to attribute eighteen months’ 

imprisonment to each of the five consolidated cases. This resulted in twenty criminal 

history points, three from the May 2018 Judgment, two from § 4A1.1(d) (2021), and 

fifteen from the December 2017 Judgment, thereby supporting a criminal history 

category of VI. 

On appeal, the government broadly argues the district court properly 

interpreted the state court judgment as intending to allocate prison time to each case 

13 The district court characterized the state court’s judgment as “appalling” and 

“a mess.” In doing so, it apparently expected the state court to specify what portion 

of the seven-year sentence applied to each of the five consolidated cases. Such 

criticism is off the mark. See supra n.5. State court judges impose sentences in 

accordance with their own jurisdiction’s requirements and not necessarily in 

anticipation for how their sentences might be considered in another jurisdiction. 

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because the underlying offenses involved “threats” and were, therefore, not minor.14

Rather than endorsing the district court’s approach to allocate eighteen months’ 

imprisonment to each case,15 however, the government proposes an alternate theory 

of allocation supporting a criminal history category of VI. It notes that the seven-year 

unsuspended sentence is roughly 32% of the full twenty-two-year sentence. Applying 

this ratio to proportionally reduce the maximum sentence in each of the consolidated 

state cases similarly results in criminal history category VI.16

14 The government’s adoption of this aspect of the district court’s analysis is 

inapt for several reasons. First, the government does not identify any aspect of 

Chapter Four of the sentencing guidelines that utilizes the perceived severity of prior 

crimes to illuminate how the state court intended to “pronounce[]” the punishments 

covered by the partial sentence. U.S.S.G. § 4A1.2 cmt. n.2 (clarifying definition of 

“sentence of imprisonment” for purposes of § 4A1.1). Furthermore, the government 

does not identify what is meant by “threat.” Black’s Law Dictionary defines “threat” 

as a “communicated intent to inflict harm or loss on another or on another’s property 

[in a way] that might diminish a person’s freedom to act voluntarily.” Black’s Law 

Dictionary 1618 (9th ed. 2009); see also State v. Fernandez, 875 P.2d 1104, 1110–11 

(N.M. Ct. App. 1994) (using Black’s definition of “threat” to give content to 

elements of witness intimidation statute). There is no indication in the record that any 

of the thirteen crimes of conviction involved this type of actual “threat.” If the 

government or district court meant to use the term as a proxy for the issue of danger, 

it does so without explanation or discussion. In any event, this court’s reading of the 

PSR indicates only two of thirteen crimes set out in two different consolidated cases 

involved specific danger to a person or persons: the residential burglary charged in 

CR 2017-01217 and the aggravated fleeing from an officer charged in CR 2017-

03303. In asserting the contrary, the government, like the district court is inaccurate. 

15 The government concedes it “is not certain what the district court meant” 

when it indiscriminately allocated eighteen months for each of the five state court 

cases. 

16 This methodology allocates two criminal history points for three of the 

consolidated state cases and three points for the remaining two for a total of twelve 

points. When added to Montano’s second state court sentence and his two points for 

committing the violation while on probation, the resulting criminal history 

calculation well-exceeds the thirteen points required for category VI. 

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Montano argues the government has failed to demonstrate each of the 

consolidated cases merit three criminal history points and, therefore, has failed to 

meet its burden of proof. See Randall, 472 F.3d at 766 n.1. He proposes a third 

alternative allocation theory which results in a criminal history category of V. He 

advocates allocating all seven years of the unsuspended sentence to the most serious 

of the five cases, which had a maximum sentence of twelve years’ imprisonment.17

Accordingly, he suggests this case receive three criminal history points and the 

remaining four cases receive one point. When added to his other criminal history 

points, the total criminal history calculation amounts to twelve points and a 

corresponding category of V. 

This court is thus presented with three different theories projecting the 

possible intent of the state court in sentencing Montano: two result in category VI, 

and one results in category V. Each method allocates criminal history points to each 

of the five consolidated cases. Each of the theories also present a potentially 

plausible basis to allocate time of imprisonment. The evidence presented does not 

indicate any methodology is weightier than the others and to pick one would be 

speculative. As demonstrated by the district court’s unsupported assumptions at 

17 This case was the most expansive. It contained six counts, twice that of the 

next most serious case, and included three out of four of Montano’s larceny and 

burglary charges. See supra n.2. 

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sentencing, there is not sufficient evidence to determine the intent of the state court.18

Merely because the state court judgment does not inform the allocation of time of 

imprisonment to any of the five cases, the government is not relieved of its burden to 

justify the imposition of the higher criminal history category.19 The government, 

18 The government affirmatively asserts that resolution of this question is 

factual in nature. Gov’t Response Br. at 22. This court accepts the government’s 

concession, making it unnecessary to decide whether interpretation of an ambiguous 

state court judgment involves a legal or factual question. See Truman v. Johnson, 60 

F.4th 1267, 1273 n.6 (10th Cir. 2023) (noting that, in the preclusion context, the 

circuits are split as to this question). 

19 This court perceives an additional interpretation of the December 2017 

Judgment not advanced by either party. Relevant state law and analysis of the state 

court’s intent drawn from the face of the document support the conclusion that a total 

of six criminal history points should be attributed to the December 2017 Judgment. 

As described above, see supra nn. 1–6, the December 2017 Judgment imposes 

sentences on the thirteen separate convictions set out in five consolidated cases. It 

does not impose sentences on the five consolidated cases themselves. The December 

2017 Judgment imposes the statutory maximum sentence on each conviction and 

orders all thirteen sentences to run “consecutively for all purposes including any 

future parole/probation violations.” Of the total nearly twenty-two-year sentence, all 

but seven years are suspended. Of the remaining nearly fifteen years, all but one-andone-half years are suspended with the condition Montano serve a five-year term of 

supervised probation. 

The New Mexico sentencing scheme is discussed at length in United States v. 

Jones, 921 F.3d 932, 939–42 (10th Cir. 2019) and State v. Kenneman, 653 P.2d 170, 

172–74 (N.M. Ct. App. 1982). As those cases and the statutory citations therein make 

clear, suspended portions of sentences have meaningful existence post-judgment. 

Kenneman, 653 P.2d at 172 (“In the case of suspension, if probation is revoked, the 

court may require the defendant to serve the balance of the sentence previously 

imposed but suspended, or any lesser sentence.”); N.M. Stat. Ann. § 31-20-8 

(“Whenever the period of suspension expires without revocation of the order, the 

defendant is relieved of any obligations imposed on him by the order of the court and 

has satisfied his criminal liability for the crime. He shall thereupon be entitled to a 

certificate from the court . . . and upon presenting the same to the governor, the 

defendant may . . . be granted a pardon or a certificate restoring such person to full 

rights of citizenship.”). Notably, New Mexico state courts can only impose a period 

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therefore, has failed to meet its burden and we conclude Montano’s appropriate 

criminal history category to be V.20

IV. Conclusion 

The sentence imposed by the District Court for the District of New Mexico is 

hereby affirmed in part and reversed in part. The matter is remanded to the district 

of probation by first suspending a portion of a sentence of incarceration. Jones, 921 

F.3d at 940. This court has not discovered any New Mexico law indicating any 

reason to apportion a partially suspended sentence among different convictions or 

among multiple incidents resolved in a single judgment. Given the continuing 

validity of the entirety of the twenty-two-year sentence imposed in the December 

2017 Judgment, it is reasonable to read the judgment as sequentially suspending all 

sentences imposed after the running of seven years. Cf. N.M. Stat. Ann. 31-20-5 (“If 

a defendant is required to serve a period of probation subsequent to a period of 

incarceration . . . the period of probation shall be served subsequent to any required 

period of parole, with the time served on parole credited as time served on the period 

of probation and the conditions of probation imposed by the court deemed as 

additional conditions of parole . . . .”). 

Under this theory, Montano would receive three points for the first sentence 

imposed in the December 2017 Judgment; an eighteen-month sentence for unlawful 

taking of a motor vehicle. He would also receive three points for the next sentence 

imposed; a three-year term for residential burglary. He would not receive any points 

for the next three sentences imposed because those sentences involved crimes that 

occurred on the same day, were charged in the same indictment, and were imposed 

on the same day as the burglary. U.S.S.G. § 4A1.2(a)(2). Each of the consecutive 

sentences imposed thereafter in the judgment would be suspended and, thus, do not 

count as a sentence of imprisonment. Id. § 4A1.2(b)(2). When added to the five 

points not contested by Montano, these six points result in a total of eleven criminal 

history points and a criminal history category V. 

20 In the alternative, Montano argues that the rule of lenity should apply. In 

light of our disposition remanding for a lesser criminal history category, we need not 

address this issue. 

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court to vacate Montano’s sentence and to resentence him consistent with the holding 

of this disposition.21

21 At oral argument, the government requested a new evidentiary hearing on 

remand. “Although remand for resentencing generally allows the district court to 

conduct de novo review,” this court may exercise its discretion to limit remand to the 

existing record under certain circumstances. United States v. Forsythe, 437 F.3d 960, 

963 (10th Cir. 2005). It is appropriate to exercise such discretion when the 

“Defendant alerted the government to the deficiency in its evidence, [and] the 

government did not seek to cure the deficiency.” Id. (quotation omitted). Here, 

Montano consistently objected to the lack of evidence supporting his criminal history 

calculation under § 4A1.1 and the government failed to offer any additional evidence 

supporting its contention. Accordingly, “[t]he government failed to meet its burden 

of proof on a clearly established element . . . and we decline to give it a second bite at 

the apple.” Id. 

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