20-4176-cr United States v. Montalvo

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of September, two thousand twenty-two.

Present: DEBRA ANN LIVINGSTON, Chief Judge, BARRINGTON D. PARKER, EUNICE C. LEE, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 20-4176-cr

MISAEL MONTALVO, AKA BORI, AKA MISA,

Defendant-Appellant,

CARMEN M. JUSTINIANO RAMIEREZ, AKA MILLIE, EFRAIN HIDALGO, AKA CHEKO, BRANDON JONAS, AKA B,

Defendants. _____________________________________

For Appellee: MONICA J. RICHARDS, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.

1 For Defendant-Appellant: DONNA R. NEWMAN, Law Offices of Donna R. Newman, PA, New York, NY.

Appeal from a judgment of the United States District Court of the Western District of New

York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Misael Montalvo (“Montalvo”) pleaded guilty to one count of

conspiracy to possess with intent to distribute cocaine, in violation of

(b)(1)(A)

and 846. As part of a plea agreement, the government agreed to dismiss two additional counts

charging a violation of

(c)(1)(A)(iii), 924(j)(1), and 2, for discharge of a firearm

during and in relation to a crime of violence or a drug-trafficking crime, causing death. The

district court sentenced Montalvo to 240 months’ imprisonment and five years’ supervised release.

This sentence was double the United States Sentencing Guidelines (“U.S.S.G.” or the

“Guidelines”) range of 120 to 121 months applicable to the drug conspiracy offense. The district

court opted to impose a higher sentence after considering Montalvo’s conduct that led to the now

dismissed counts.

On appeal, Montalvo challenges his sentence on procedural and substantive grounds. He

argues that the district court committed procedural error in concluding that Montalvo’s conduct in

connection with the dismissed charges—his involvement in an armed burglary and robbery that

resulted in two deaths—was related to the offense of conviction, and then considering this conduct

in imposing its sentence. Montalvo also argues that the sentence is substantively unreasonable,

particularly in light of his preexisting health conditions and the conditions of imprisonment during

the COVID-19 pandemic. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

2 * * *

This Court reviews sentences for reasonableness, United States v. Booker,

,

260–62 (2005), which has both procedural and substantive dimensions, United States v. Cavera,

(2d Cir. 2008) (en banc). A district court commits procedural error if, among

other reasons, it rests its sentence on a clearly erroneous finding of fact or makes a mistake in its

Guidelines calculation.

at 190 (citing Gall v. United States,

(2007)). If the

district court’s sentencing decision is procedurally sound, we consider the substantive

reasonableness of the sentence under an abuse of discretion standard. Gall,

. In

determining whether a sentence is substantively reasonable, an appellate court must “take into

account the totality of the circumstances, giving due deference to the sentencing judge’s exercise

of discretion, and bearing in mind the institutional advantages of district courts.” Cavera,

. This Court will hold that a sentence is substantively unreasonable only when it is

“so ‘shockingly high, shockingly low, or unsupportable as a matter of law’ that allowing [it] to

stand would ‘damage the administration of justice.’” United States v. Broxmeyer,

(2d Cir. 2012) (quoting United States v. Rigas,

(2d Cir. 2009)).

When a sentencing court issues a variance—a non-Guidelines sentence imposed outside of

the Guidelines framework that the court finds justified under the

(a) sentencing

factors—there is no limitation on the information concerning the background, character, or

conduct of the person convicted that the court may consider.

; see also Irizarry

v. United States,

(2008) (explaining the meaning of “variance” in the sentencing

context). In contrast, when a sentencing court issues a departure—a non-Guidelines sentence

imposed pursuant to policy statements in the Guidelines—there may be limitations. See, e.g.,

United States v. Kim,

(2d Cir. 1990) (“We conclude that, with respect to acts of

3 misconduct not resulting in conviction [under U.S.S.G. § 5K2.0 (1989)], the [Sentencing]

Commission intended to preclude departures for acts bearing no relationship to the offense of

conviction, but to permit departures for acts that relate in some way to the offense of conviction,

even though not technically covered by the definition of relevant conduct [under U.S.S.G.

§ 1B1.3].” (emphasis added)); see also Irizarry,

(explaining the meaning of

“departure” in the sentencing context).

Montalvo argues that the district court committed procedural error by finding that his

discharged conduct was related to the drug conspiracy offense of conviction and could therefore

provide a basis for an upward departure. But the district court indicated that its 240-month

sentence was a variance, not a departure, and defense counsel conceded as much at argument.

See App’x 56. Because it issued a variance, the district court was not required to find that

Montalvo’s discharged conduct was related to the offense of conviction before factoring that

conduct into the sentence. See

(“No limitation shall be placed on the

information concerning the background, character, and conduct of a person convicted of an offense

which a court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.”). We therefore need not consider whether the conduct was sufficiently

related to the offense of conviction to warrant a departure under U.S.S.G. § 5K2.21.

Montalvo also argues that his sentence is substantively unreasonable, particularly given his

pre-existing health conditions and the harsh conditions of imprisonment during the ongoing

COVID-19 pandemic. We disagree. The district court’s 240-month sentence is not

“shockingly high, shockingly low, or unsupportable as a matter of law.” Rigas,

.

Indeed, the district court’s decision to deviate from the advisory Guidelines range of 120 months

is contemplated by U.S.S.G. § 5K2.21, which permits an upward departure to reflect dismissed or

4 uncharged conduct that is related to the offense of conviction. Having decided to vary from the

Guidelines range, the district court looked to the multi-count analysis described by this Court in

Kim to calculate an appropriate extent of a variance, and it arrived at a range of 235 to 293 months.

See App’x 33. The 240-month sentence that the district court ultimately imposed is well “within

the range of permissible decisions.” See Rigas, 490 F.3d at 238.

Additionally, the district court did not abuse its discretion in imposing a 240-month

sentence, notwithstanding Montalvo’s health issues. It noted its receipt of Montalvo’s

submission about COVID-19 conditions at the Northeast Ohio Correctional Center, where

Montalvo had previously been detained, and it noted that Montalvo’s health problems and health

risks were a factor it considered when deciding on a sentence. There is no basis upon which to

find the sentence substantively unreasonable.

* * *

We have considered Montalvo’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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