Reliable Hearsay and Foreign Seizure Evidence Are Sufficient To Support a 450-Kilogram Drug-Quantity Finding at Sentencing

Reliable Hearsay and Foreign Seizure Evidence Are Sufficient To Support a 450-Kilogram Drug-Quantity Finding at Sentencing

Introduction

In United States v. Francisco Javier Montano-Ortiz, the Eleventh Circuit affirmed a 180-month sentence imposed for a multinational cocaine distribution conspiracy involving shipments from Colombia through Central America with knowledge that the drugs would be imported into the United States. Although framed as a challenge to substantive reasonableness, the appeal functionally targeted the district court’s drug-quantity finding—specifically, the attribution of at least 450 kilograms of cocaine, which set the defendant’s base offense level at 38 under U.S.S.G. § 2D1.1(c)(1). The panel’s opinion, while unpublished, is a thorough reaffirmation of core sentencing principles: (1) drug quantity is established by a preponderance of the evidence; (2) district courts may rely on “fair, accurate, and conservative” estimates and on reliable hearsay; (3) agent testimony that draws upon intercepted communications, corroborating images, and foreign law-enforcement seizure data can bear sufficient indicia of reliability; and (4) appellate review of quantity findings is deferential for clear error, with unpreserved objections reviewed only for plain error.

The opinion also reiterates the Eleventh Circuit’s two-step abuse-of-discretion framework for reviewing sentences, and it addresses a recurring line-drawing problem—whether a given challenge is “procedural” or “substantive”—by concluding that the appeal fails under either characterization. The case offers practical guidance for litigants on preserving evidentiary objections, challenging hearsay at sentencing, and aggregating shipment quantities across transnational seizures to reach guideline thresholds.

Summary of the Opinion

The district court found that Mr. Montano-Ortiz was responsible for more than 450 kilograms of cocaine, resulting in a base offense level of 38 under U.S.S.G. § 2D1.1. It credited evidence including: (a) the defendant’s admission of involvement in a 270-kilogram seizure in Colombia (August 2017); (b) intercepted messages and photos corroborating a 100-kilogram seizure in Panama (June 2017); and (c) messages discussing an 836–838 kilogram seizure in Costa Rica (November 2017), alongside communications about laboratory ownership, production capacity, and attempted sales into Florida. The district court considered § 3553(a) factors, recognized that nationwide sentences for the guideline level averaged 154 months but found the defendant atypical, and imposed a downward variance to 180 months (from a 210–262 months guideline range), followed by five years of supervised release.

On appeal, the Eleventh Circuit affirmed. It held there was no procedural error in the drug-quantity determination: the government proved the threshold by a preponderance; the district court permissibly relied on agent testimony and reliable hearsay without making explicit reliability findings; and the combined evidence comfortably supported an amount “far in excess of 450 kilograms.” The court also held the sentence substantively reasonable given the seriousness of the offense, the defendant’s leadership role, the well-below-maximum term, and the district court’s reasoned application of § 3553(a). Any arguments premised on unpreserved objections would fail even on plain-error review.

Analysis

Precedents Cited and Their Role in the Decision

  • United States v. Trailer (11th Cir. 2016): Reaffirms the two-step abuse-of-discretion framework for sentencing review—first check for procedural error (e.g., guideline miscalculation, reliance on clearly erroneous facts, failure to consider § 3553(a), inadequate explanation), then assess substantive reasonableness in light of totality and § 3553(a).
  • United States v. Pulido (11th Cir. 2025): Confirms de novo review for the interpretation and application of the Sentencing Guidelines, with fact-finding reviewed for clear error.
  • United States v. Mandhai (11th Cir. 2004) and United States v. Almedina (11th Cir. 2012): Establish that drug-quantity attribution is a factual determination reviewed only for clear error.
  • United States v. Isaac (11th Cir. 2021): Defines clear error as requiring a “definite and firm conviction that a mistake has been committed” to set aside a finding.
  • United States v. Owens (11th Cir. 2024) and United States v. Watkins (11th Cir. 2021): Clarify the preponderance standard—the fact is more probable than not.
  • United States v. Graham (11th Cir. 2024): Authorizes the use of “fair, accurate, and conservative estimates” of drug quantity, while forbidding speculation.
  • United States v. Rodriguez (11th Cir. 2013) and U.S.S.G. § 6A1.3: Permit reliance on reliable hearsay at sentencing; formal rules of evidence do not apply.
  • United States v. Baptiste (11th Cir. 2019) and United States v. Johnson (11th Cir. 2020): Explain that explicit findings on hearsay reliability are preferred but not required if the record shows sufficient indicia of reliability. Agent testimony may suffice when corroborated.
  • United States v. Ghertler (11th Cir. 2010): A defendant must show hearsay used at sentencing was materially false or unreliable to establish error.
  • United States v. Barsoum (11th Cir. 2014) and United States v. Gregg (11th Cir. 1999): Emphasize the deference owed to district court credibility determinations regarding drug-quantity witnesses.
  • United States v. Clark (11th Cir. 2001) and United States v. Utsick (11th Cir. 2022): Unpreserved issues are reviewed for plain error, requiring an error that is clear, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • United States v. Butler (11th Cir. 2022) and United States v. Rosales-Bruno (11th Cir. 2015): Substantive review affirms sentences within the “ballpark of permissible outcomes,” with the district court having discretion to weigh § 3553(a) factors.
  • United States v. Sarras (11th Cir. 2009): Sentences within guidelines are ordinarily expected to be reasonable; here, the court imposed a downward variance, further supporting reasonableness.
  • United States v. Riley (11th Cir. 2021) and United States v. Stanley (11th Cir. 2014): A sentence well below the statutory maximum is an indicator of reasonableness.
  • United States v. Curtin (11th Cir. 2023) (Newsom, J., concurring): Notes the sometimes blurred line between “procedural” and “substantive” reasonableness challenges—an issue the panel sidesteps because the sentence is affirmed under either rubric.

Legal Reasoning

The court’s reasoning proceeds in two tracks—procedural and substantive—while recognizing that the appellant’s briefing mainly attacked the evidence underpinning the drug-quantity finding.

1) No procedural error in the drug-quantity finding

  • Burden and standard: The government must prove drug quantity by a preponderance of the evidence; the district court may make “fair, accurate, and conservative” estimates and may rely on reliable hearsay.
  • Evidentiary basis: DEA Special Agent Baumert testified to intercepted BlackBerry messages (the PIN linked to the defendant), contemporaneous photos, and confirmations of foreign seizures by Panamanian, Colombian, and Costa Rican authorities. The messages included:
    • June 2017: A 100-kilogram seizure in Panama, corroborated by contemporaneous messages and images, including a message that “they got them.”
    • August 2017: A 270-kilogram seizure in Colombia, with messages referencing “230 kilos” (150 attributed to the defendant’s group and 80 to another), which the agent contextualized with the 270-kilogram seizure during the same period.
    • November 2017: An 836–838 kilogram seizure in Costa Rica; messages suggested the defendant believed responsibility had passed to another trafficking group when the cocaine reached Costa Rican waters.
    • Additional communications about laboratory ownership and production capacity, an invitation to view the lab, assurances of purity, and attempted negotiations for “a couple hundred” kilograms en route to Florida.
  • Reliability of hearsay: Although portions of the agent’s testimony conveyed information from foreign authorities and other officers, the district court could rely on it because the record supplied sufficient indicia of reliability—temporal alignment between messages and seizures, corroborating images, the defendant’s own admissions (including a plea-stage concession of involvement in large “shipments” and the 270-kilogram event), and the operational details (lab control, routes, and U.S.-bound distribution).
  • Aggregation to reach 450 kilograms: Even ignoring the broader 10,000-kilogram allegation in the PSR, the district court could conservatively conclude the defendant’s jointly undertaken activity exceeded 450 kilograms by aggregating the 270 kg conceded event with at least one additional shipment (100 kg Panama) and the Costa Rica load (836–838 kg), all tied to the same conspiracy via communications and context.
  • Standard of review and preservation: The district court implicitly found the agent credible. That credibility determination receives “great deference.” Any failure to object to the hearsay or to insist on explicit findings below would trigger plain-error review on appeal. The panel found no error under any standard; thus, the sentence stands.

2) Substantive reasonableness

  • The 180-month sentence was a downward variance from the 210–262 months guideline range and far below the statutory maximum of life imprisonment under 21 U.S.C. § 960(b)(1)(B)(ii).
  • The district court articulated multiple § 3553(a) factors: the seriousness of the offense; the breadth of the defendant’s role (laboratories, transportation, and U.S.-directed sales); deterrence; and avoidance of unwarranted disparities (including reference to average sentences for comparable guideline levels, while recognizing the defendant’s atypical features).
  • On this record, the sentence fell within the “ballpark of permissible outcomes,” and the district court neither over-weighted an improper factor nor under-weighted a proper one.

Impact

Although unpublished and thus non-precedential within the Eleventh Circuit, the decision is an instructive and likely persuasive exposition of how courts may ground substantial drug-quantity findings in transnational narcotics cases:

  • Reliable hearsay and foreign law-enforcement data: The case confirms that sentencing courts may credit foreign seizure reports, test results, and investigative materials (e.g., photos, media, and official communications) when they are contextually corroborated and presented through a knowledgeable agent.
  • Intercepted communications and digital identifiers: Linking a defendant to a device (e.g., a BlackBerry PIN) and to contemporaneous calls is a strong evidentiary anchor for attributing shipments, even without in-court identification by co-conspirators. Communications that contemporaneously discuss seizures, quantities, routes, and ownership are potent corroborators.
  • Aggregation across shipments: Prosecutors can reach the § 2D1.1(c)(1) threshold by aggregating multiple seizures within the conspiracy, supported by messages and context, without having to prove each kilogram by direct DEA testing or in-court testimony from each co-conspirator.
  • Defense preservation: Defense counsel must contemporaneously object to hearsay reliability, translations, device attribution, and the linkage between communications and specific seizures. Absent preservation, appellate review is for plain error and, as here, difficult to meet.
  • Variances against high drug-quantity baselines: Even when the base offense level is driven high by quantity (level 38 at ≥450 kg), meaningful variances remain possible. Here, the court moved from 210–262 months to 180 months based on individualized § 3553(a) consideration, while still recognizing the offense’s seriousness and the defendant’s extensive role.
  • Practical takeaways for transnational cases: The opinion endorses a practical approach to multi-sovereign proof—U.S. courts may reasonably rely on foreign testing and seizure documentation when corroborated, without independent DEA testing of every bundle depicted in photos or discussed in messages.

Complex Concepts Simplified

  • Preponderance of the evidence: A “more likely than not” standard. At sentencing, the government need not prove drug quantity beyond a reasonable doubt; the question is whether it is more probable than not that the defendant’s conduct reached a particular threshold.
  • Clear error review: Appellate courts defer to the district court’s fact-finding and will reverse only if left with a “definite and firm conviction” that a mistake occurred. Credibility choices by the sentencing judge are rarely disturbed.
  • Plain error: If a party fails to object in the district court, the appellate court corrects only clear, obvious errors that affected substantial rights and seriously harmed the proceedings’ integrity. This is a demanding standard.
  • Reliable hearsay at sentencing: The Federal Rules of Evidence do not strictly apply at sentencing. Judges may consider hearsay if it bears “sufficient indicia of reliability,” such as corroborating documents, timing, or consistency with independent facts.
  • Conservative estimates of drug quantity: Courts may estimate using record-supported inferences (such as aggregating corroborated shipments), so long as the estimate is fair and anchored to the evidence—not speculative.
  • Guidelines vs. statutory limits: The Guidelines produce an advisory range (here, 210–262 months), while statutes set minimums and maximums (here, a 10-year minimum and life maximum). A court may vary from the Guidelines if the § 3553(a) factors justify it, but cannot exceed statutory caps or dip below statutory floors absent qualifying exceptions.
  • U.S.S.G. § 2D1.1(c)(1): Sets base offense level 38 for offenses involving 450 kilograms or more of cocaine. Crossing that threshold materially increases the guideline range.
  • § 3553(a) factors: A set of statutory considerations—including the offense’s seriousness, deterrence, respect for law, just punishment, protection of the public, the defendant’s history and characteristics, and avoidance of unwarranted disparities—that guide the ultimate sentence.

Conclusion

The Eleventh Circuit’s affirmance in United States v. Montano-Ortiz underscores several durable tenets of federal sentencing in drug cases. Drug-quantity findings are governed by a preponderance standard; district courts may aggregate corroborated shipments and rely on reliable hearsay, including foreign seizure evidence, agent testimony, and intercepted communications, to reach guideline thresholds. Appellate review of such fact-finding is deferential, and unpreserved evidentiary objections face the steep hill of plain-error review. Substantively, a downward-variant sentence that is thoroughly grounded in § 3553(a) and well below the statutory maximum will typically be sustained.

For practitioners, the opinion is a clear reminder: safeguard the record by timely challenging hearsay reliability, translations, device attribution, and the linkage between messages and specific seizures. For district courts, it affirms that implicit reliability findings suffice when the record amply corroborates the hearsay. And for policy observers, it illustrates how transnational investigative cooperation—intercepts, foreign testing, and seizure data—can be marshaled to establish high-tier drug quantities even absent DEA testing of every bale or live testimony from every co-conspirator. The result is a pragmatic, evidence-sensitive approach that the Eleventh Circuit continues to endorse.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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