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Date: 08-05-2021

Case Style:

United States of America v. Lucas Montagne

Case Number: 20-1389

Judge: Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges. PER CURIAM

Court: United States Court of Appeals For the Eighth Circuit

Plaintiff's Attorney:

Defendant's Attorney:

St. Louis, MO Criminal defense Lawyer Directory


St. Louis, MO - Criminal defense lawyer represented defendant with a producing child pornography charge.

On June 26, 2019, Montagne was indicted on eight charges, each dealing with
a sex offense involving a minor. The indictment also included a special allegation that
Montagne had multiple convictions for sexually assaulting children in Texas.
Montagne pleaded to one count of producing child pornography, in violation of
18 U.S.C. § 2251(a) and (e). He admitted the special allegation. And he stipulated that
§ 3559(e)’s mandatory life sentence applied to him. The government then dismissed
the other counts against him.
The district court adopted the presentence investigation report (PSR) in full.
The PSR recounted the following: In April 2019, law enforcement learned about
certain videos and images of child pornography that had been uploaded to the
Internet. Two of the pictures were taken at the same location. One was of a sevenyear-old boy and the other of a nine-year-old boy. One of the picture’s metadata
indicated that the picture was taken near Montagne’s residence. Further investigation
confirmed that the pictures were taken in Montagne’s bathroom and discovered that
Montagne had prior convictions for sexually assaulting children. In May 2019, law
enforcement executed a search warrant for Montagne’s residence. He had 20 pictures
of self-produced child pornography stored on his cellular phone.
The PSR also noted that Montagne had multiple convictions for violating a
Texas law that prohibits sexually assaulting a child. The relevant Texas statute
1The Honorable P.K. Holmes, III, United States District Judge for the Western
District of Arkansas.
defines “child” as “a person younger than 17 years of age.” Tex. Penal Code Ann.
§ 22.011(c)(1). The victims of Montagne’s previous convictions were both 15 years
The PSR indicated that life imprisonment was statutorily mandated under
§ 3559(e). And although Montagne’s Guidelines range was 360 months’
imprisonment to life imprisonment, the PSR acknowledged that Montagne’s sentence
could not be less than the mandatory life sentence. See U.S.S.G. § 5G1.1(c)(2).
Montagne made three objections to the PSR. One concerned the inclusion of
a victim statement from someone other than the specific children involved in
Montagne’s offense conduct. Another involved convictions for a suspended license
and harboring a runaway child. The third dealt with a statement that Montagne made
during a post-arrest assessment. However, as the district court explained, none of
these objections “would [have] impact[ed] the Guideline calculation.” Sentencing
Hr’g Tr. at 4:14–16, United States v. Montagne, No. 3:19-cr-30005-PKH-1 (W.D.
Ark. 2020), ECF No. 57.
Most notably, Montagne did not object to the PSR’s conclusion that the
statutorily mandated sentence was life imprisonment. In fact, he agreed that he would
be required to serve a life sentence. During the sentencing hearing, Montagne’s
lawyer stated that “Montagne underst[ood] that . . . once he ple[aded] . . . he was
going to be facing a mandatory life sentence.” Id. at 9:22–23. This was confirmed by
the document Montagne’s lawyer prepared and Montagne signed establishing his
plea’s factual basis. In that document, Montagne said that he “underst[ood] that a life
sentence [would] be imposed.” Change of Plea Hr’g, Ex. 1, at 4, United States v.
Montagne, No. 3:19-cr-30005-PKH-1 (W.D. Ark. 2020), ECF No. 32-1. And during
the change-of-plea hearing, the district court asked if Montagne understood that “in
[his] case, a mandatory term of imprisonment for life” would be applied. Change of
Plea Hr’g Tr. at 8:4–7, United States v. Montagne, No. 3:19-cr-30005-PKH-1 (W.D.
Ark. 2020), ECF No. 56. Montagne replied, “Yes, sir.” Id. at 8:8.
The district court imposed a life sentence. On appeal, Montagne reverses
course and now contends that the district court erred in sentencing him to life
II. Discussion
Montagne argues that his Texas convictions are not qualifying offenses
under § 3559(e). Section 3559(e)(1) requires that a person be sentenced to life
imprisonment if two elements are met: (1) the “person . . . is convicted of a Federal
sex offense in which a minor is the victim” and (2) “the person has a prior sex
conviction in which a minor was the victim.” As relevant here, the statute defines
“prior sex conviction” as “a conviction [made before the current one] . . . which was
for . . . a State sex offense.” 18 U.S.C. § 3559(e)(2)(C). And it defines “State sex
offense,” in relevant part, as “an offense under State law that is punishable by more
than one year in prison and consists of conduct that would be a Federal sex offense,”
except for the interstate-commerce element. Id. § 3559(e)(2)(B).
Montagne chooses one federal sex offense—18 U.S.C. § 2241—and asserts
that his Texas conviction does not fit § 2241’s requirements because § 2241 only
applies when the victim is younger than 12 years old. He then explains that the Texas
statute applies to victims who are younger than 17 years old and his victims were 15
years old. The government counters with 18 U.S.C. § 2422(b), explaining that no age
requirement applies there. But we need not determine whether § 2241 or
§ 2422(b)—or any other applicable federal sex offense—is relevant to this case.
Assuming the district court committed an error, Montagne invited it.
“[W]here . . . a defendant knowingly and voluntarily waives a right, any error
is unreviewable on appeal. In other words, an erroneous ruling generally does not
constitute reversible error when it is invited by the same party who seeks on appeal
to have the ruling overturned.” United States v. Campbell, 764 F.3d 874, 878 (8th Cir.
2014) (cleaned up). “To show a waiver, the government must point to action by the
defendant or defense counsel that establishes an intentional relinquishment or
abandonment of the right.” United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th
Cir. 2016).
In Campbell, we addressed a similar situation. The Campbell defendants
“affirmatively agreed in their plea agreements that [a Guidelines provision] should
apply when calculating the defendants’ offense levels,” and the agreements also
stated that “the parties recommend that the base offense level is 22 as found in [the
agreed-upon provision].” 764 F.3d at 876. The PSR restated these calculations, and
the district court adopted the PSR “after neither party objected.” Id. at 877. On
appeal, the defendants reversed course and argued that the district court erred by
applying the Guidelines provision. Id. We held that the defendants invited any alleged
error because “they prompted the district court to ‘embark on a specific course of
action’ that ‘defense counsel specifically approve[d].’” Id. at 879 (alteration in
original) (quoting Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 868 (8th Cir.
2011)). “Thus, we decline[d] to review whether the district court err[ed] . . . .” Id.
Similarly, Montagne actively invited any error the district court made in
sentencing him to a life sentence. During the proceedings, Montagne agreed multiple
times that he was subject to mandatory life imprisonment. He did so in his plea
stipulation (which Montagne’s lawyer drafted and Montagne signed), during his
change-of-plea hearing, and during his sentencing hearing. Additionally, he did not
object to § 3559(e)’s application at any point. See id. (“Other circuits have declined
plain error review where the defendant pleaded guilty, did not object to the PSR on
the appropriate grounds, and asked the court to proceed with the agreed-upon
sentencing calculation.”).
Montagne’s citation to out-of-circuit decisions is unpersuasive. For example,
the Sixth Circuit has stated that the invited-error doctrine does not apply when “the
government was as much at fault for inviting the [alleged] error as the defendant.”
United States v. Barrow, 118 F.3d 482, 491 (6th Cir. 1997). Thus, according to
Montagne, the doctrine should not apply to him because the government also agreed
that § 3559(e)’s mandatory life sentence applied. But Campbell belies Montagne’s
assertion. The Campbell defendants and the government both agreed that the
challenged Guidelines provision applied, but that did not alter our analysis. The same
is true here; Montagne waived his argument that § 3559(e)’s mandatory life
imprisonment did not apply to him.

Outcome: Accordingly, we affirm.

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