Case: 21-30767 Document: 00516669459 Page: 1 Date Filed: 03/08/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 8, 2023 No. 21-30767 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Antonio Montero, Defendant—Appellant. Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:18-CR-246-1 Before Clement, Oldham, and Wilson, Circuit Judges. Per Curiam:* Antonio Montero pled guilty to conspiracy to distribute and possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. § 846. The district court sentenced Montero to the mandatory- minimum term of 120 months of imprisonment, “with credit for time * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-30767 Document: 00516669459 Page: 2 Date Filed: 03/08/2023 No. 21-30767 served,” 1 and imposed a five-year term of supervised release. After being granted an out-of-time appeal, Montero filed a pro se notice of appeal. We affirm. Montero’s appointed counsel initially filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738 (1967). But we determined that the Anders brief did not adequately address three issues: (1) whether Montero was eligible for a safety-valve reduction under 18 U.S.C. § 3553(f); (2) whether the district court was otherwise authorized to sentence Montero below the statutory mandatory minimum; and (3) whether there is any nonfrivolous issue for appeal regarding the district court’s failure to advise Montero of the possible immigration consequences he faced if convicted. We ordered counsel to file a supplemental Anders brief addressing those issues or, alternatively, a brief on the merits addressing any nonfrivolous issues that counsel deemed appropriate. Montero’s counsel filed a merits brief analyzing the three issues identified in our order. As to the issue regarding notice of the immigration consequences of his conviction, Montero briefed the issue, but he concedes that he cannot make the showing required for plain error. Thus, we address the first two issues only. First, we address Montero’s argument that he is entitled to a safety- valve reduction under 18 U.S.C. § 3553(f). Because he raises this argument for the first time on appeal, our review is for plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). But no matter the standard of review, 1 Montero was sentenced in January 2020. Montero indicated during sentencing that he had been in federal custody since October 2018. Thus, the district court apparently intended for Montero to receive over a year of credit for time served. 2 Case: 21-30767 Document: 00516669459 Page: 3 Date Filed: 03/08/2023 No. 21-30767 Montero’s safety-valve argument is foreclosed by United States v. Palomares, 52 F.4th 640 (5th Cir. 2022). Section 3553(f), the First Step Act’s “safety valve,” exempts certain defendants convicted of controlled-substance offenses from mandatory- minimum sentences. Specifically, a defendant who meets the criteria in § 3553(f)(2)–(5) is eligible for safety-valve relief so long as he does not have— (A) more …
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