Case 5:14-cr-00252 Document 67 Filed in TXSD on 01/20/15 Page 1 of 25

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
Laredo Division

UNITED STATES OF AMERICA,

v.
KRISTOPHER MICHAEL
MONTEMAYOR,
Defendant.

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No. 5-14-CR-252

S ent enci ng Dat e: J an. 26, 2016

UNITED STATES SENTENCING BRIEF

The defendant, Kristopher Michael Montemayor, the elected County Commissioner for
Precinct 1, is now before this Court for sentencing having pled guilty to Federal Programs
Bribery, in violation of 18 U.S.C. 666(a)(1)(B). During his plea hearing, Montemayor
admitted to soliciting and accepting various bribes including, among other things, a Ford F-150
pick-up truck, $11,000 in cash, and more than $2,700 in Apple electronics and other
merchandise, in exchange for official acts. During a relatively brief tenure as an elected official,
Montemayor sought and received an astonishing amount of bribes from a variety of sources in
exchange for official assistance. His bribery scheme was a brazen one, and it caused significant
damage to the integrity of the Commissioners Court and the government in Laredo. For the
reasons set forth below, the United States concurs with the Presentence Investigation Reports
calculation of the applicable Guidelines range and requests that this Court overrule the
defendants objections and impose a sentence squarely within the Guidelines range of 70 to 87
months and order forfeiture in the amount of $13,721.16.

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I.

BACKGROUND
Montemayor was an elected Commissioner for Precinct 1 in Webb County. (Dkt. 44 at

22F.) Between approximately September 2012 and February 2014, Montemayor solicited and
accepted numerous bribes from individuals, in exchange for official action, which resulted in
Montemayor receiving bribes worth thousands of dollars.
At his plea hearing, Montemayor admitted that on September 12, 2012, he accepted a
white, 2012 Ford F-150 pick-up truck, worth approximately $37,015, that was provided to him
by Person A, in exchange for providing official assistance in obtaining employment positions
within the Webb County government for Person A, who received an annual salary of
approximately $26,000 and did little or no work, and for Person As spouse, Person B, who
received an annual salary of approximately $45,553. (Dkt. 44 at 22C-22G.) In an interview
with government agents, Montemayor admitted that Person A expressly offered to purchase the
truck for Montemayor in exchange for the jobs, and Montemayor also acknowledged that Person
A, who Montemayor arranged to work in a full-time position for the county, doesnt do shit in
exchange for his salary. FD-302, Dec. 7, 2013 interview, at 10-11. Montemayor also admitted
that he had attempted to intervene, on behalf of Person A, to resolve Person As various traffic
citations on account of having received the pick-up truck from Person A. Id. at 11.
At his plea hearing, Montemayor further admitted that, between July 2013 and December
2013, he received $11,000 in cash, paid on three separate occasions, and more than $2,700 worth
of electronics and other merchandise from an undercover FBI agent, in exchange for providing,
and promising to provide, official assistance to the undercover agent and his company. (Dkt. 44
at 22I-22J.) The merchandise included: (1) iPad Wi-Fi 128 GB, black; (2) iPad Wi-Fi 128 GB,
black; (3) Applecare Plus for iPad; (4) Applecare Plus for iPad; (5) iPad Smart Case, red; (6)

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iPad Smart Case, light gray; (7) Morphie JP Plus Snap iPhone 4/4S, white; (8) Morphie JP Plus
Snap iPhone 4/4S, black; (9) Beats Solo HD on Ear Smartie, blue; (10) Beats Solo HD on Ear
Smartie, black; and (11) Speck Toughskin for IP4S, black. (Id. at 15.)
Montemayor has also admitted that, on December 7, 2013, Montemayor traveled to San
Antonio after the undercover FBI agent promised to provide Montemayor a ticket to the San
Antonio Spurs basketball game and a hotel room. When Montemayor arrived at the hotel, he
was met by two FBI special agents and Montemayor voluntarily consented to an interview.
During that interview, Montemayor learned that he had been recorded and surveilled by the FBI
for the past several weeks and that the undercover agent worked for the FBI. Montemayor
admitted to accepting bribes from the undercover FBI agent and from Person A during that
meeting. See generally FD-302, Dec. 7, 2013 interview. He also admitted to soliciting and
accepting bribes from multiple other individuals and companies. Id.
As described more fully below, the government attempted to obtain Montemayors
cooperation in a continuing investigation over the course of several months but, apart from a
handful of recordings he made during two days in December 2013, Montemayor declined to
cooperate proactively. All cooperation had ceased by December 17, 2013, when Montemayor
refused to meet with the government and cooperate unless he was promised immunity. After
plea offers were extended, and re-extended at defense counsels request, and then ultimately
rejected by Montemayor, the government presented an indictment to the Grand Jury.
On March 18, 2014, Montemayor was indicted by a Grand Jury in the Southern District
of Texas for two counts of Federal Programs Bribery, in violation of 18 U.S.C. 666(a)(1)(B).
On March 19, 2014, Montemayor was arrested and released on bond.

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At defense counsels request, the government re-extended a plea offer months after
indictment. The government made clear, however, that, due to Montemayors prior refusal to
cooperate and to his actions to undermine the investigation, which are discussed more fully
below, the government would not pursue any cooperation from Montemayor and, accordingly,
he would not receive a 5K1.1 clause in his plea agreement, nor would the government advocate
for Montemayor to receive any credit for cooperation at his sentencing.
On June 19, 2014, Montemayor pleaded guilty to one count of Federal Programs Bribery,
in violation of 18 U.S.C. 666(a)(1)(B), pursuant to a plea agreement that did not include a
5K1.1 cooperation clause.1
II.

ARGUMENT
Montemayors criminal activity was serious and damaging to the integrity of the Webb

County Commissioners Court. His crimes were not the result of a momentary lapse in judgment.
Instead, over the course of several months, Montemayor accepted a variety of bribes, including a
pick-up truck, cash payments, Apple iPads, and other things of value, so that he could personally
enrich himself at the expense of the publics interest. Worse, he actively recruited other public
officials to participate in the bribery scheme, facilitating bribe payments between them and the
undercover FBI agent. As a result of the bribery, the decisions that Montemayor made as an
elected official, which should have been in the countys interest, were instead based on the cash
and other bribes he received for his personal benefit. The bribery scheme uncovered in this
investigation is precisely the sort of serious criminal activity that deserves a serious sentence.
Contrary to the defenses argument, the governments decision to dismiss Count 1 was not an
admission by the government that the charge was not legally sound. Instead, the plea offer was a
typical one in that it contemplated dismissal of one count in exchange for the defendants admitting
guilt as to the other count. Had this case proceeded to trial, the government would have had a legally
and factually sound basis for proving Montemayor guilty of both Count 1 and Count 2. Furthermore,
as a condition of the plea agreement, the government required Montemayor to admit to the conduct
underlying Count 1 in the statement of facts.
1

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Such conduct erodes the publics confidence in government and government officials. For the
reasons discussed below, the government urges this Court to sentence Montemayor squarely
within the applicable Guidelines range of 70 to 87 months of incarceration.
A. Legal Standards
The government need only prove the facts at sentencing by a preponderance of the
evidence. United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). A district court may draw
reasonable inferences from the facts when determining whether an enhancement applies. United
States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010) (citing United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006)).
At sentencing, a district court may consider any relevant evidence without regard to its
admissibility under the rules of evidence applicable at trial, provided the information has
sufficient indicia of reliability to support its probable accuracy. United States v. Ramirez, 367
F.3d 274, 277 (5th Cir.2004). Even uncorroborated hearsay evidence may be sufficiently
reliable for use at sentencing. See United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.1996).
A presentencing report generally bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations required by the sentencing
guidelines. United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996). The district court
may adopt the facts contained in a [presentence report] without further inquiry if those facts
have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information in the PSR is
unreliable. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). The defendant
bears the burden of showing that the information in the PSR relied on by the district court is
materially untrue. United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).

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B. A Two-Level Enhancement Under U.S.S.G. 2C1.1(b)(1) is Appropriate

Because the Offense of Conviction Involved More Than One Bribe.
First, the defendant objects to the two-level enhancement pursuant to U.S.S.G.
2C1.1(b)(1), for an offense involving more than one bribe. He attempts to characterize as one
single bribe his receipt of separate cash payments delivered on different dates for different
reasons, an assortment of electronics and related items, and a 2012 Ford F-150 truck, among
other things, all of which were provided to him in exchange for multiple official acts and by
different bribers. His argument is entirely without merit.
The Fifth Circuit has repeatedly held that when multiple acts are undertaken for a bribers
benefit, and the briber made multiple payments in return for those acts, a sentencing court
properly finds that multiple acts of bribery occurred. See United States v. Bohuchot, 625 F.3d
892, 904 (5th Cir. 2010); see also United States v. Reagan, 725 F.3d 471, 494 (5th Cir. 2013).2
By his own admissions, Montemayor received numerous bribes from multiple sources in
exchange for multiple official acts. In his Plea Agreement, Montemayor admitted to receiving
the following different things of value at different times from different individuals:

A white, 2012 Ford F-150 pick-up truck worth approximately $37,015 from
PERSON A. (Doc. 44 at 22D.)

Likewise, other circuit courts consistently hold that when regular payments are intended to
influence more than a single action, the two-level enhancement pursuant to U.S.S.G. 2C1.1(b)(1)
is appropriate. See, e.g., United States v. Middlemiss, 217 F.3d 112, 124 (2d Cir. 2000) (upholding
enhancement for extortion offense where final payment was a distinct payoff intended to achieve
separate goal from earlier payments); United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008);
United States v. Martinez, 76 F.3d 1145, 1153 (10th Cir. 1996) (upholding district courts finding of
multiple bribes where payments were made in exchange for ongoing patient referrals); United States
v. Kahlon, 38 F.3d 467, 470 (9th Cir. 1994) (concluding that payments to promote different
applications for work papers . . . were not installment payments for a single action.); United States
v. Evans, 30 F.3d 1015, 1016-17, 1020 (8th Cir. 1994) (affirming 2C1.1(b)(1) enhancement where
defendant, a state insurance examiner, accepted bribes to approve two different insurance
applications).

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A $1,000 cash payment on July 11, 2013, from an undercover employee of the
Federal Bureau of Investigation. (Doc. 44 at 22Ia.)

A $5,000 cash payment on August 8, 2013, from an undercover employee of the

FBI. (Doc. 44 at 22Ib.)

Electronics equipment valued at approximately $2,721.16, including:

o
o
o
o

two 128-gigabyte Apple iPads,

two iPad covers,
two sets of Beats by Dr. Dre ear buds, and
one iPhone 4s protective case.

(Doc. 44 at 22Ic.)

A $5,000 cash payment on October 23, 2013, from an undercover employee of the
FBI. (Doc. 44 at 22Id.)

Moreover, the numerous things of value provided to Montemayor were intended

influence him to take a series of separate and distinct official acts that benefited multiple
recipients, including the FBI undercover agent, his company, Person A, and Person B. By
Montemayors own admission, he agreed to take multiple official acts in exchange for the bribes
he received. Indeed, in his Plea Agreement, Montemayor acknowledged the following separate
officials acts that he performed or promised to perform, in exchange for the multiple bribes he
received:

providing [the FBI undercover agent] with information on a competitors

companys business proposal to the County; (Doc. 44 at 22J.)

agreeing to place an item on the Commissioners Court to benefit [the FBI

undercover agents] company; (Doc. 44 at 22J.)

pledging his support and vote in favor of [the FBI undercover agents]
company; (Doc. 44 at 22J.)

assistance in obtaining two salaried positions in the Webb County government

for PERSON A and PERSON As spouse, PERSON B. (Doc. 44 at 22D.)

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Indeed, Montemayor performed, or promised to perform, multiple different official acts,

for different individuals, and thus the defendants argument that Application Note 2 of U.S.S.G.
2C1.1(b)(1) applies must fail. Clearly, this is not a situation where a number of installment
payments for a single action occurred. U.S.S.G. 2C1.1(b)(1) app. n. 2.
Application of the U.S.S.G. 2C1.1(b)(1) more than one bribe enhancement here is
entirely justified based solely on the conduct to which Montemayor admitted in his Plea
Agreement. Moreover, as the Presentence Investigation Report states, the Court may also rely
on Montemayors relevant conduct, or other instances of bribery related to the offense of
conviction, in finding that he solicited and accepted more than one bribe. The Guidelines define
offense referred to in section 2C1.1(b)(1) [as] the offense of conviction and all relevant
conduct under 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise
clear from the context. United States v. Mann, 493 F.3d 484, 497 (5th Cir. 2007) (quoting
U.S.S.G. 1B1.1 cmt. n. 1) (affirming district court's application of two-level sentencing
guidelines enhancement based on the commission of more than one act of extortion).
Section 1B1.3 defines relevant conduct as all acts and omissions committed, aided,
abetted . . . or willfully caused by the defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of attempting to avoid
responsibility for that offense, as well as acts that were part of the same course of conduct or
common scheme or plan as the offense of conviction. Common scheme or plan is defined as
offenses that must be substantially connected to each other by at least one common factor, such
as common victims, common accomplices, common purpose, or similar modus operandi.
U.S.S.G. 1B1.3 cmt. n. 9(A). Offenses are of the same course of conduct if they are
sufficiently connected or related to each other as to warrant the conclusion that they are part of a

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single episode, spree, or ongoing series of offenses. Id. at n. 9(B). The Guidelines instruct
that factors used to determine whether actions are sufficiently connected include the degree of
similarity, the regularity (repetitions) of the offenses, and the time interval between offenses.
United States v. Barraza, 655 F.3d 375, 385 (5th Cir. 2011).
Here, Montemayor confessed to receiving various other uncharged bribes, detailed in the
Presentence Investigation Report, which clearly constitute relevant conduct to be considered
under Section 2C1.1(b)(1). See generally FD-302, Dec. 7, 2013 interview. The other instances
of bribery involved similar modus operandi, a common purpose, and occurred in close temporal
proximity. Because Montemayors other bribes were part of a common scheme or of the same
course of conduct, the uncharged bribes may be used to increase the offense level for
Montemayors bribery conviction through application of the Section 2C1.1(b)(1) more than one
bribe enhancement. See id. at 385.
For all these reasons, the two-level enhancement pursuant to U.S.S.G. 2C1.1(b)(1), for
an offense involving more than one bribe, is clearly justified. The defendants objection to
application of this enhancement should be overruled.
C. A Ten-Level Enhancement Under U.S.S.G. 2C1.1(b)(2) is Appropriate Because
the Intended Benefit Far Exceeds $120,000.
The defendant also objects to the ten-level enhancement pursuant to U.S.S.G.
2C1.1(b)(2), claiming that, despite Montemayors own admission that he solicited and received
numerous other bribes, this Court must consider only those bribes encompassed in the count to
which Montemayor pled guilty. This argument is contrary to both the Sentencing Guidelines and
Fifth Circuit precedent, which hold that all relevant conduct should be considered in a Guidelines
calculation. See U.S.S.G. 1B1.3. For the reasons stated below, the government concurs with
the Presentence Investigation Reports recommendation for a ten-level enhancement under
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U.S.S.G. 2C1.1(b)(2), because the offense amount far exceeds $120,000. See U.S.S.G.
2B1.1(b)(1)(F).
For bribery offenses involving more than $5,000, the Guidelines provide that the sentence
shall be enhanced by varying levels relative to the greatest of: (1) the value of the payment, (2)
the benefit received or to be received in return for the payment, (3) the value of anything
obtained or to be obtained by a public official or others acting with a public official, or (4) the
loss to the government from the offense. U.S.S.G. 2C1.1(b)(2). If the amount exceeds
$120,000, the sentence is enhanced by 10 levels, pursuant to U.S.S.G. 2B1.1(b)(1)(F).3
In calculating the amount, a sentencing court must consider all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant. U.S.S.G. 1B1.3(a)(1)(A). Where, as here, there is jointly undertaken criminal
activity, which includes any criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a conspiracy, the sentencing court
must also consider all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity. U.S.S.G. 1B1.3(a)(1)(B) (emphasis added). This inquiry
focuses on activity that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or responsibility for
that offense. U.S.S.G. 1B1.3(a)(1). The district court need not determine the value of the
benefit received, or to be received, with precision. United States v. Griffen, 324 F.3d 330, 365
(5th Cir. 2003). The court need only make a reasonable estimate of the loss [or benefit], given
the available information. United States v. Chappell, 6 F.3d 1095, 1101 (5th Cir. 1993).
Further, comment 7 to U.S.S.G. 2F1.1 states that if an intended loss that the defendant was
3

See also U.S.S.G. 2B1.1(b)(1)(E) (enhancing by 8 levels where amount exceeds $70,000);
U.S.S.G. 2B1.1(b)(1)(G) (enhancing by 12 levels where amount exceeds $200,000).

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attempting to inflict can be determined, this figure will be used if it is greater than the actual
loss. See also Chappell, 6 F.3d at 1101. Here, the value of the payments obtained, or to be
obtained, by Montemayor or others acting in concert with Montemayor far exceeds $120,000.
The following is a non-exhaustive list of the bribes that Montemayor received, or
intended to receive, for his personal benefit as a result of his bribery scheme, which total more
than $120,000:

$11,000 in cash, paid to Montemayor by the undercover FBI agent in exchange

for official action (Dkt. 44 at 22I-22J);

$2,721 in electronics and other related merchandise, provided to Montemayor by

the undercover FBI agent in exchange for official action (Dkt. 44 at 22I-22J);

A 2012 Ford F-150 pick-up truck, worth approximately $37,015, that was
purchased for Montemayor by Person A and used exclusively by Montemayor
until he learned of this criminal investigation (Dkt. 44 at 22C-22G);

The value of a San Antonio Spurs basketball game ticket and hotel room at the
Marriott Rivercenter, which Montemayor expected to receive from the undercover
FBI agent on Dec. 7, 2013 (FD-302, Dec. 7, 2013 interview, at 1);

The value of various meals and drinks paid for by the undercover FBI agent,
which amounted to approximately $500;

$2,000 in cash, paid to Montemayor by a businessman in exchange for his vote on

an upcoming Commissioners Court agenda item to remove a fence from the
businessmans land (FD-302, Dec. 7, 2013 interview, at 6);

$4,000 expected to be provided to Montemayor by a construction company owner

in exchange for Montemayors vote in favor of retaining the company for county
business (Id. at 7);

$5,000 paid, in two separate checks, to Montemayor by a construction company

in exchange for awarding a contract to the company (Id. at 7-8);

$2,500 check paid to Montemayor by a construction company in exchange for

awarding a contract for the Rio Bravo water station (Id. at 8);

$50,000 expected to be provided to, and solicited by, Montemayor who requested
the money in exchange for providing official assistance to allocate roughly $1
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million in county funds to pave a land owners road so that the land owner could
operate a zoo to feature a giraffe he owned (Id. at 9);

$1,000 paid to Montemayor by the land owner in exchange for Montemayors

support in facilitating the paving of the land owners road (Id.); and

$4,000 paid to Montemayor by the owner of a oil company in exchange for

Montemayors official assistance in securing county contracts. (Id.)

In valuing the 2012 Ford F-150 pick-up truck, the Presentence Investigation Report limits
its value only to the months in which it was actually used by Montemayor, from September 2012
to February 2014, by determining that it would cost $21,405.72 to rent a similar vehicle for that
period of time from a rental car company. In doing so, the Presentence Investigation Report
relies on the Fifth Circuits decision in United States v. Bohuchot, 625 F.3d 892, 903-04 (5th Cir.
2010). In Bohuchot, the Court advised that the proper methodology in determining the value of
the defendants use of two yachts, which were worth $946,942, was to calculate the cost of
renting the boats on forty occasions over a two-and-a-half period that lasted anywhere for a day
to several weeks at a time.
Here, however, the truck was the defendants primary mode of transportation, and he
used the vehicle virtually every day for personal and business purposes. Although his name was
not on the title and he did not therefore have the legal right to sell or otherwise transfer any
interest in the truck, this case is readily distinguishable from Bohuchot because Montemayor was
present when the truck was purchased for him, Montemayor test-drove the truck at the
dealership, Montemayor was told that the truck was being purchased for him, and Montemayor
understood that he would be permitted to keep the truck indefinitely. Given that Montemayor
admitted that the truck was purchased for him, and that Montemayor returned the truck to Person
A only after he learned of this criminal investigation, there is a strong basis from which to assess
the full value of the truck, or $37,015, as the true benefit Montemayor expected to receive as a
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result of his corrupt agreement with Person A. See United States v. Brown, 7 F.3d 1155, 1159
(5th Cir.1993) (finding that intended benefit included two $2,000 checks that the defendant did
not cash due to police vigilance because defendant should not be rewarded simply because law
enforcement officials thwarted his plans). Importantly, the Fifth Circuit has explained that
when determining the amount of the benefit to be received, courts may consider the expected
benefits, not only the actual benefits received. United States v. Griffen, 324 F.3d 330, 366 (5th
Cir. 2003) (citing United States v. Landers, 68 F.3d 882, 884 n.2 (5th Cir. 1995) (emphasis
added)).
Assessing the benefit that Montemayor intended to receive from his bribery scheme also
counsels in favor of including Montemayors various bribe solicitations, even though they did
not ultimately result in payment. Indeed, the fact that Montemayors solicitation for $50,000 did
not result in immediate payment does nothing to change Montemayors intent and belief that $1
million in county funds to pave a road would justify such a large payment to him. See United
States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996) (upholding sentencing calculation based on
loss defendants intended to inflict, although the attempted credit card charges were declined by
the credit card company); United States v. Sowels, 998 F.2d 249, 250-51 (5th Cir. 1993) (holding
a district courts determination that intended loss was the combined credit limit of all credit cards
stolen by the defendants was not clearly erroneous, even though the defendants were
apprehended before they could use any of the cards); see also U.S.S.G. 2C1.1 cmt. backgd
(Failure to complete the offense does not lessen the defendants culpability in attempting to use
public position for personal gain. Therefore, solicitation and attempts are treated as equivalent to
the underlying offense.).

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In addition to the more than $120,000 Montemayor received or solicited for his personal
benefit, the Court should consider the other benefits sought, and received, by Montemayors
uncharged coconspirators in calculating the loss amount. The broad language of U.S.S.G.
2C1.1(b)(2), which states that the loss amount can be calculated to include the value of anything
obtained or to be obtained by a public official or others acting with a public official,
encompasses the things of value obtained by uncharged individuals who conspired with
Montemayor to commit bribery.4
Montemayor admitted that, prior to learning of this criminal investigation, he arranged
meetings between the undercover FBI agent and other public officials for the purpose of
facilitating bribe payments to those officials. Indeed, Montemayor admitted to conspiring with
an elected member of the City Council to facilitate a $4,900 cash bribe payment provided by the
undercover agent to the City Council member in exchange for the City Council members
favorable vote. FD-302, Dec. 7, 2013 interview, at 4. He also admitted to conspiring with a
fellow County Commissioner to facilitate a $1,000 cash bribe payment provided by the
undercover agent to the County Commissioner in exchange for her favorable vote on the
Commissioners Court. Id. Montemayor also admitted he introduced the undercover agent to

It is well accepted that the gains realized by a defendants colleagues in crime may be
attributed to the defendant at sentencing. See, e.g., United States v. Tejada-Beltran, 50 F.3d 105, 110
(1st Cir. 1995) (explaining the amount of loss in a bribery case can only be determined after
considering all acts in the course of conduct or in the common scheme); United States v. Reese, 666
F.3d 1007, 1021 (7th Cir. 2012) (holding defendant responsible for bribes paid by three coconspirators when calculating loss amount at sentencing); United States v. Robinson, 603 F.3d 230
(3d Cir. 2010); United States v. Treadwell, 593 F.3d 990 (9th Cir. 2010); United States v. Jenkins
Watts, 574 F.3d 950 (8th Cir. 2009); United States v. Canestraro, 282 F.3d 427, 433 (6th Cir. 2002)
(holding it was reasonably foreseeable to a defendant that his co-defendant would make $169,750 in
illegal payments, and therefore using this amount to determine the defendants sentence); United
States v. Pretty, 98 F.3d 1213, 1222 (10th Cir. 1996) ([T]he question is whether the amount received
. . . was reasonably foreseeable to the defendants in light of the nature of the conspiracy.); United
States v. Catalfo, 64 F.3d 1070 (7th Cir. 1995).
4

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another different County Commissioner, and that Montemayor provided that County
Commissioner reassurance after he received a $1,000 cash bribe payment from the undercover
agent in exchange for his vote, specifically telling him that the undercover agent was
trustworthy, was not working for law enforcement, and shared a mutual friend with Montemayor
(who, unbeknownst to Montemayor, was working for the FBI as an informant).
Accordingly, each of the following bribe amounts may also be considered under U.S.S.G.
2C1.1(b)(2):

$4,900 cash bribe payment provided by the undercover agent to the City Council
member (FD-302, Dec. 7, 2013 interview, at 4);

$1,000 cash bribe payment provided by the undercover agent to another County
Commissioner (Id. at 4);

$1,000 cash bribe payment provided by the undercover agent to another County
Commissioner (Id. at 5); and

The value of Miami Dolphins football game tickets, gambling, dinners,

entertainment, exotic dance clubs, and spending money for another County
Commissioner and City Council member. (Id. at 6.)

For each of the above listed bribes, Montemayor had direct knowledge of the bribe and
helped to facilitate or negotiate the corrupt agreements. Accordingly, the value of the bribes paid
to those working in concert with Montemayor may be imputed to Montemayor in calculating the
intended benefit of his criminal conduct.
For all these reasons, the government concurs with the Presentence Investigation Reports
conclusion that a ten-level enhancement under U.S.S.G. 2C1.1(b)(2) applies.5
5

The government did not concede, as the defendant claims, that the intended benefit of
Montemayors bribery scheme amounted to $13,721.16. Instead, as the Plea Agreement makes clear
(see Dkt. No. 44 at 15-18), $13,721.16 is simply the forfeiture amount that would compensate the
government for the $11,000 in cash, electronics, and other merchandise that was provided to
Montemayor by the undercover government agent during the course of the bribery scheme, because
Montemayor had repeatedly failed to return the cash and items to the authorities despite numerous
requests to do so. In requiring that Montemayor consent to forfeit $13,721.16 as a condition of his

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C. The Defendants Request for Downward Variance Based on His Supposed

Cooperation with the Government Should Be Denied.
Despite repeatedly declining to cooperate with the government, refusing to return the
cash bribe payments and Apple electronics he received from the undercover FBI agent, and
taking action that was detrimental to the governments continuing investigation, Montemayor
now comes before the Court seeking a downward variance based on his representation that he
cooperated with law enforcement. Montemayors representation is baseless, and his request
should be denied.
During the initial December 7, 2014, interview, the government sought Montemayors
assistance in a proactive investigation and advised him not to tell anyone that he had been
approached so as to preserve his ability to work covertly with the authorities. In mid-December
2013, following his initial approach, Montemayor met with FBI agents two additional times and
agreed to make recordings but only did so on two days. On one day, he recorded a fundraising
event that did not produce any helpful evidence. On the second day, he recorded three separate
conversations. Although Montemayor claims that he received $450 during one of those
conversations, he never provided the $450 cash as evidence and instead stated that he returned
the money. Based on the recording of one of those conversations, the government requested that
Montemayor record an upcoming meeting between Montemayor and three other individuals to
determine whether bribe money would change hands. The government devoted significant time
and resources to prepare for the meeting, but at the last moment, Montemayor, through counsel,
provided notice that he would not cooperate with the government unless and until he was granted

Plea Agreement, to account for the cash and other things of value he failed to return to the
government, the government in no way limited its ability to argue that the bribery scheme involve far
greater sums of money that Montemayor actually received, and intended to receive, under U.S.S.G.
2C1.1(b)(2).

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full immunity for his crimes, which the government was unwilling to provide. As a result of the
governments unwillingness to grant Montemayor full immunity, Montemayor cut off all contact
with the handling agents, did not attend or record the aforementioned meeting, and ceased all
proactive cooperation. Montemayor kept the recording device and made no effort to return it to
the FBI, despite repeated requests, through defense counsel, to do so.
By December 17, 2013, just ten days after Montemayor first learned of the criminal
investigation, the government was informed by defense counsel that Montemayor would no
longer cooperate with the investigation, and that the government agents were not permitted to
have any contact with Montemayor without counsel present. For several weeks, government
counsel tried unsuccessfully to reach Montemayors prior defense counsel, who would not return
email messages or repeated phone calls. The governments plea offer expired in late-December
2013, and Montemayors attorney contacted government counsel to inform them that his client
was rejecting the plea offer and would not cooperate with the government.
In subsequent conversations with defense counsel, over a period of several weeks and
months, Montemayor resisted any form of cooperation. Through his attorney, he communicated
various reasons for his refusal to cooperate, including concerns he would be killed and end up in
the trunk of a car in Mexico, concerns that the government would charge him for the crimes in
which he was authorized to participate while working proactively, and concerns of supposed
leaks within the FBI.
On February 27, 2014, at Montemayors request, the government agreed to meet with
Montemayor and his counsel to discuss and potentially alleviate Montemayors concerns over a
supposed leak within the FBI. As memorialized in an FBI 302 report of the interview, The
purpose of the interview was to discuss concerns presented by MONTEMAYOR and [defense

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counsel] regarding potential knowledge of MONTEMAYORS interaction with the FBI by

individuals not in positions to know such interactions. FD-302, Feb. 27, 2014 interview, at 1.
During that meeting, the government confirmed that Montemayor had no basis to substantiate his
claim that there was a leak with the FBI. Moreover, the government learned that Montemayor
himself had informed multiple people that he had been approached by the FBI shortly after the
December 7, 2013 meeting, thereby jeopardizing his ability to serve as a proactive cooperator.
During the February 27 meeting, Montemayor refused, through counsel, to discuss his own
criminal conduct, or provide any similarly helpful information to the government.
Moreover, despite repeated requests by the government on February 27, and on the days
immediately prior to and following the February 27 meeting, Montemayor refused to turn over
the Apple products and other electronics he had received from the undercover FBI agent.
Montemayor also failed, despite repeated requests by the government, to return property of the
FBI, specifically a recording device, which he had kept for months without the consent of the
FBI.
Following the Feb. 27, 2014 meeting, Montemayor, through counsel, continued to
demand full immunity before he would agree to cooperate, and he maintained that cooperation
would entail serious safety risks. See, e.g., Email from Jose Becerra to Mark Cipolletti and Rae
Woods, Mar. 18, 2014, at 1 ([T]he people requesting the meeting are known to be volatile and
constantly flaunt their money and influence and alleged power to make people disappear.
These same individuals previously made a threat on the physical safety of (or life of)
[Montemayors fiances ex-husband] after he was jailed in Mexico . . .).
Montemayor was subsequently indicted and arrested. On March 20, 2014, the press
reported a public online posting by Montemayor on his Facebook page, in which Montemayor

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suggested he would proceed to trial to contest the charges, which is another fact that is
inconsistent with his claims of cooperation. Montemayor stated, As my attorney says, cases
are won in the courtroom. . . . So today let u know that there is more to the story. A lot more. I
wish I could say more but I cant. I have a great team of attorneys and I am confident that all
this will turn out for the best. The media can say what they want but I will have my day in court.
. . . Thank you for all your support and as I said, I will have my day in court. . . . I know I will be
ok. KGNS.TV, Reactions: Mike Montemayor arrest, Mar. 20, 2014,
www.kgns.tv/home/headlines/REACTIONS-Mike-Montemayor-arrest-251232801.html.
Eventually, on June 19, 2014, Montemayor decided to plead guilty pursuant to a plea
agreement that did not include a 5K1.1 clause, on account of his lack of prior cooperation and his
inability to cooperate in the future.
On August 14, 2014, at Montemayors request, the government agreed to meet with
Montemayor because he wanted to report information. As memorialized in an FBI 302 report, at
the start of the meeting, MONTEMAYOR was reminded the entered Plea Agreement did not
include 5K credit, and there should be no expectation of 5K credit for this interview. The
information Montemayor provided during this interview was, in the governments view, either
not new or not helpful to any FBI investigation, and it did not lead to any charges against other
individuals.
On January 15, 2015, after filing a sentencing brief in which he sought a downward
variance based on supposed cooperation, and after months without any contact by Montemayor,
defense counsel contacted government counsel, informing them that Montemayor has additional
information he now wishes to share with investigators. Government counsel left a voicemail

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message for defense counsel and, as of the time of this filing, has not received any further
information from defense counsel or Montemayor.
In sum, Montemayor should not receive any leniency for cooperating with the authorities.
The time period of his supposed cooperation lasted for ten days, during which time Montemayor
did not produce any information or evidence that led to charges against other individuals.
Furthermore, what little Montemayor did do was seriously undermined by his subsequent
conduct when he decided, suddenly and without warning, to cease all cooperation shortly before
an arranged meeting with potential targets and when he, against instruction by agents, informed
other individuals that he had been approached by the FBI, including his secretary, his friend, and
a relative. His repeated refusal to return the Apple electronics and the $11,000 in cash he
received, along with the FBIs recording device, to the government further counsels in favor of a
finding that he did not comply with the governments directives and did not provide substantial
assistance to the government.
D. A Sentence Within the Guideline Range is Appropriate Considering the
Advisory Nature of the Guidelines and the 18 U.S.C. 3553(a) Factors.
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made clear that
sentencing courts should consult [the Sentencing] Guidelines and take them into account when
sentencing. Id. at 264; see also United States v. Biheiri, 356 F. Supp. 2d 589, 593 (2005)
(Justice Breyers majority opinion in [Booker] sensibly teaches that the Sentencing Guidelines
must still be taken into account pursuant to 18 U.S.C. 3553(a) in fashioning an appropriate
sentence.). The Supreme Court provided this direction to promote the sentencing goals of
Congress, namely to provide certainty and fairness in meeting the purposes of sentencing,
[while] avoiding unwarranted sentencing disparities. Booker, 543 U.S. at 264 (quoting 28
U.S.C. 991(b)(1)(B)).
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Following the Supreme Court's decision in Booker, sentencing courts must conduct a
two-part process-first calculating the sentence using the now-advisory Sentencing Guidelines,
then applying an individualized assessment using the factors set out in 18 U.S.C. 3553(a).
United States v. Robinson, 741 F.3d 588, 599 (5th Cir. 2014). Thus, sentencing courts must
consider the factors outlined in 18 U.S.C. 3553(a), including the need for the sentence to
reflect the seriousness of the offense, to promote respect for law, and to provide just punishment
for the offense; [and] to afford adequate deterrence to criminal conduct. 18 U.S.C.
3553(a)(2)(A) and (B). Section 3553(a) requires a sentencing court to consider the nature and
circumstances of the offense and the history and characteristics of the defendant, as well as the
need for the sentence imposed to: reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, afford adequate deterrence to criminal conduct,
protect the public from further crimes of the defendant, and provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in the most
effective manner.
1. Need for the Sentence Imposed to Reflect the Seriousness of the Offense, to
Promote the Respect for Law, and to Provide Just Punishment for the Offense
(Section 3553(a)(2)(A))
A substantial prison sentence is necessary to reflect the seriousness of Montemayors
criminal activity, to provide just punishment, and to promote respect for the law. The sentence
in this case should reflect that Montemayor engaged not in one single discrete instance of bribery
resulting from a momentary lapse in judgment, but instead in multiple instances of bribery over
the course of several months involving various individuals. He accepted everything from a 2012
pick-up truck to thousands of dollars in cash and Apple electronics, and he did so intending to be
influenced to provide official assistance to the bribers. In a brazen attempt to line his own

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pockets, he actively solicited several individuals and companies, forcing them to pay him or risk
losing county business, even demanding as much as $50,000 in one instance.6 The pay-to-play
arrangement corrupted Webb County by influencing Montemayor to sell his office for personal
gain. Such conduct by Montemayor, an elected official, provided an unfair advantage to
companies seeking business with the county and individuals seeking employment with the
county.
Montemayors criminal actions are a powerful and distressing example of how greed and
corruption can interfere with the effective administration of our government. Public corruption,
like the sort brought about by Montemayors crimes, breeds cynicism and mistrust of public
officials. It causes the public to disengage from the democratic process, and it has the potential
to shred the fabric of democracy by making the average citizen lose respect and trust in his or her
government.

The defendants attempt to cast himself as a reluctant, or uneasy participant in the

bribery scheme rings hallow. In his sentencing brief, Montemayor claims that because he was
uneasy with his receipt of funds given to him by the [undercover agent], he told a confidential
informant that he [Montemayor] should not have taken the money because he did not want to
become like the old politicians, and further stated that he [Montemayor] wanted to do things
the right way and that projects had to be approved through qualifications and the normal
process. What Montemayor conveniently fails to mention in his brief is that those Agust 19
statements were made on the heels of a August 14 visit by an FBI agent (unrelated to this
investigation), who coincidently told Montemayor that the FBI was vigilant in looking into
corruption in Laredo. Following that visit, Montemayor sent a text message to the confidential
informant, expressing his suspicion that the undercover agent, from whom Montemayor had
already accepted sums of money, might be a cop, and Montemayor made the aforementioned
phone call with the confidential informant in which he attempted to walk back from
conversations he had with the confidential informant and the undercover agent, saying he wanted
to do things legally in the future. Regardless of any self-serving statements Montemayor made
during that phone conversation, in an effort to avoid detection by the authorities, the fact remains
that subsequent to that conversation, Montemayor still continued to accept bribes, from the
undercover agent and from other bribers, and later confessed to an astonishing number of
instances of bribery during his relatively brief tenure as an elected official.
6

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2. Need to Afford Adequate Deterrence and Protect Public from Further Crimes
(Section 3553(a)(2)(B)-(C))
Imposing a significant prison sentence for Montemayor would serve the important
purpose of deterring future elected officials and other individuals in this district and beyond from
engaging in similar misconduct.
General deterrence has its greatest impact in white-collar cases, like this one, because
these crimes are committed in a more rational and calculated manner than sudden crimes of
passion or opportunity. United States v. Peppel, 707 F.3d 627, 637 (6th Cir. 2013) (quoting
United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006). As one court noted,
We need not resign ourselves to the fact that corruption exists in government.
Unlike some criminal justice issues, the crime of public corruption can be
deterred by significant penalties that hold all offenders properly accountable. The
only way to protect the public from the ongoing problem of public corruption and
to promote respect for the rule of law is to impose strict penalties on all
defendants who engage in such conduct, many of whom have specialized legal
training or experiences. Public corruption demoralizes and unfairly stigmatizes
the dedicated work of honest public servants. It undermines the essential
confidence in our democracy and must be deterred if our country and district is
ever to achieve the point where the rule of law applies to all not only to the
average citizen, but to all elected and appointed officials.
United States v. Spano, 411 F. Supp. 2d 923, 940 (N.D. Ill. 2006).
A significant sentence will also help reduce the chance that Montemayor is able to obtain
another position of trust or public office.
3. Avoiding Unwarranted Sentence Disparities (Section 3553(a)(6))
Montemayor does not have any codefendants or similarly situated defendants who are
before this Court for sentencing.
4. Need to Provide Restitution
The government is not requesting restitution. The government notes, however, that
pursuant to his plea agreement with the government Montemayor has agreed to sign a Consent
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Order of Forfeiture of $13,721.16 on or before the time of sentencing to reimburse the FBI for
the cost of the Apple electronics and cash that Montemayor received during the undercover
operation.
III.

CONCLUSION
Based on the foregoing, the United States requests that this Court impose a sentence

squarely within the Guidelines range of 70 to 87 months and order forfeiture in the amount of
$13,721.16.

January 20, 2014

Respectfully submitted,

__/s/________________
Emily Rae Woods
Mark Cipolletti
Trial Attorneys
Public Integrity Section
United States Department of Justice
(202) 616-2691
rae.woods@usdoj.gov

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Case 5:14-cr-00252 Document 67 Filed in TXSD on 01/20/15 Page 25 of 25

Certificate of Service
I hereby certify that on the 20th day of January, 2015, I electronically filed the foregoing
to the Clerk of Court using the CM/ECF system, which will send a notification of such filing
(NEF) to defense counsel.

__/s/________________
Emily Rae Woods
Trial Attorney
Public Integrity Section
United States Department of Justice
(202) 616-2691
rae.woods@usdoj.gov

25