21-1259-cr United States v. Valencia (Montoya Guzman)

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 27th day of September, two thousand twenty-two.

PRESENT: REENA RAGGI, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. 21-1259

Hernando Estevens Montoya Guzman,

Defendant-Appellant,

Juan Guillermo Valencia, AKA Juan Guillermo Valencia Osorio, Orlando Agudelo, Ruben Dario Ocampo Alvarez, Gonzalo Enrique Boyero Saenz,

Defendants.

_____________________________________

FOR DEFENDANT-APPELLANT: Hernando Estevens Montoya Guzman, pro se, Joint Base MDL, NJ FOR APPELLEE: Andrew J. DeFilippis, David Abramowicz, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY

Appeal from an order of the United States District Court for the Southern District of New

York (Colleen McMahon, Judge).

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

DECREED that the April 28, 2021 order of the district court is AFFIRMED.

In 2017, Hernando Estevens Montoya Guzman (“Montoya”) pleaded guilty to narcotics

conspiracy and was sentenced to 151 months’ imprisonment. In July 2020, he moved for

compassionate release pursuant to

(c)(1)(A) based on a heightened risk of serious

illness in light of the COVID-19 pandemic and several health conditions. The district court denied

the motion, reasoning that the

(a) factors weighed against release. Montoya

appeals, proceeding pro se. The Court assumes the parties’ familiarity with the case.

This Court “typically review[s] the denial of a motion for a discretionary sentence reduction

for abuse of discretion.” United States v. Holloway,

(2d Cir. 2020). “A district

court has abused its discretion if it has (1) based its ruling on an erroneous view of the law, (2)

made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be

located within the range of permissible decisions.” United States v. Keitt,

(2d Cir.

2021) (cleaned up).

Section 3582(c)(1)(A) provides that a district court “may reduce” a defendant’s term of

imprisonment “after considering the factors set forth in Section 3553(a)” if it finds “extraordinary

2 and compelling reasons warrant such a reduction” and “that such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.”

(c)(1)(A);

Keitt,

. If a defendant is eligible for a reduction, the district court must “determine

whether, and to what extent, to exercise its discretion to reduce the sentence.” United States v.

Moore,

(2d Cir. 2020).

The district court did not abuse its discretion here by declining to reduce Montoya’s

sentence. The district court properly considered the § 3553(a) factors, such as the seriousness of

Montoya’s offense and the need for deterrence, in deciding that a sentence reduction was not

warranted. See

(a)(1), (2). As the district court concluded—and as Montoya

does not dispute—his crime of conviction involved organizing drug couriers to smuggle heroin into

the United States from Colombia and distributing the heroin within the United States. Further, the

district court correctly found that Montoya had committed the offense while serving a term of

supervised release. In weighing these factors, as well as, inter alia, Montoya’s criminal history,

the district court did not abuse its discretion by determining that a sentence reduction was not

warranted.

Montoya argues that the district court failed to consider his medical records and evidence

of the conditions at FCI Fort Dix during the pandemic. This is incorrect. The district court did

consider this evidence, concluding that Montoya had shown extraordinary and compelling reasons

for a sentence reduction. Nevertheless, “extraordinary and compelling reasons are necessary—but

not sufficient—for a defendant to obtain relief under § 3582(c)(1)(A).” United States v. Jones,

(2d Cir. 2021). A district court’s determination that the section 3553(a) factors

counsel against a sentence reduction can warrant denial of compassionate release, notwithstanding

3 the presence of extraordinary and compelling reasons for such relief. See Keitt,

(2d

Cir. 2021). That is the case here.

In urging otherwise, Montoya faults the district court for not affording sufficient weight to

the conditions of his confinement during the COVID-19 pandemic in balancing the section 3553(a)

factors. Even assuming that Montoya did not waive this argument by failing to raise it before the

district court, the court committed no error by placing greater weight on the seriousness of

Montoya’s offense and his history of recidivism in concluding that a sentence reduction was not

warranted despite the conditions and health risks at the prison. See United States v. Capanelli,

(2d Cir. 2007) (“While a district court must consider each § 3553(a) factor in

imposing a sentence, the weight given to any single factor is a matter firmly committed to the

discretion of the sentencing judge and is beyond our review.” (internal quotation marks omitted)).

Montoya also contends that the district court erred by relying on his commission of the

conspiracy offense “for which he is presently incarcerated” while still serving a term of supervised

release. See United States v. Hernando Estevens Montoya Guzman, No. 16-CR-126, Dkt. 177, *6

(S.D.N.Y. Apr. 28, 2021). This was an accurate statement. Montoya pleaded guilty to

participating in a drug conspiracy that began in April 2013, and he did not complete his term of

supervised release for an earlier crime until August 2013. Montoya argues that he “committed”

the new offense only when he was “consigned to custody,” Appellant’s Reply Br. at 1, but he

misunderstands both the relevant inquiry and the district court’s ruling. The district court properly

focused on when Montoya “committed” the new offense in the sense of when he joined in the

charged conspiracy. The fact that he engaged in that criminal conduct while on supervised release

for an earlier crime demonstrated his disregard for the law, which the district court properly

4 regarded as an aggravating sentencing factor. It was irrelevant when he happened to be

apprehended for that conduct and consigned (or “committed”) to custody.

This Court has reviewed the remainder of Montoya’s arguments and finds them

unpersuasive. For the foregoing reasons, the order of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

5