U.S. v. Montalvo, 07-16762.

Citation581 F.3d 1147
Decision Date16 September 2009
Docket NumberNo. 07-16762.,07-16762.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael L. MONTALVO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

McGregor W. Scott, United States Attorney, and Phillip A. Talbert, Assistant United States Attorney, Chief of Appeals, Sacramento, CA, for the plaintiff-appellee.

Richard B. Mazer, Law Offices of Richard B. Mazer, San Francisco, CA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, District Judge, Presiding. D.C. Nos. CV-07-COA-Postjgmt CR-89-00062-WBS.


WALLACE, Senior Circuit Judge:

Nearly two decades ago, a jury found Montalvo guilty of operating a continuing criminal enterprise engaged in the sale and trafficking of illegal narcotics. He was subsequently sentenced to life imprisonment. Since then, Montalvo has pursued a multitude of post-conviction motions and appeals seeking relief from his conviction and sentence. Indeed, this is the seventh time we have been called upon to review the validity of Montalvo's sentence. In the instant appeal, we must determine whether the district court erred in dismissing Montalvo's sixth, and most recent, motion to correct his sentence pursuant to a prior version of Federal Rule of Criminal Procedure 35(a). We first hold that we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Exercising that jurisdiction, we affirm the district court's dismissal of Montalvo's Rule 35(a) motion.


As we recounted during a prior review of Montalvo's conviction and sentence, "[f]rom 1983 until his arrest on May 19, 1987, [Montalvo] was at the helm of ... a large and extremely well-organized cocaine distribution business based in California." United States v. Montalvo (Montalvo I), Nos. 90-10078, 90-10080, 90-10081, 90-10082, 90-10585 and 90-10586, 1992 WL 184342, at *1 (9th Cir. Aug.4, 1992). He operated his drug company "much like a legitimate enterprise," requiring his employees to "dress in business attire, to work 8:00 a.m. until 5:00 p.m. five days a week, and to carry pagers so that they could be easily contacted." Id. His employees were forbidden from carrying guns or using drugs themselves. Id. We further determined that Montalvo's business "met with tremendous financial success; in 1985, for example, he grossed 68 million dollars in cocaine sales." Id.

On March 3, 1989, a grand jury returned a two-count superseding indictment against Montalvo and his various co-defendants. Count I charged Montalvo and others with belonging to a cocaine conspiracy stretching from June 1982 to May 19, 1987, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count II charged only Montalvo with operating a continuing criminal enterprise during the same time period in violation of 21 U.S.C. § 848. With respect to Count II, we previously determined that the version of section 848 in effect at the time of Montalvo's arrest applies to this case. United States v. Montalvo (Montalvo III), Nos. 94-10108, 94-10110, 1996 WL 2205, at *1 (9th Cir. Jan. 3, 1996). Therefore, any references to section 848 in this opinion will be to the previous version of that statute.

On October 19, 1989, a jury convicted Montalvo on Count II of the indictment. The district court then sentenced Montalvo to life imprisonment pursuant to its discretionary authority under section 848(a). On appeal, we upheld Montalvo's conviction, but remanded the case for resentencing and for a post-trial review of certain personnel records of government witnesses. Montalvo I, 1992 WL 184342, at *17. Meanwhile, an intervening coram nobis petition, construed as a 28 U.S.C. § 2255 petition, also reached us on appeal and was subsequently denied.

Montalvo was resentenced on January 14, 1994. At resentencing, the district court observed that on October 27, 1986, section 848 had been amended to require a life sentence for any continuing criminal enterprise defendant who was:

[O]ne, the principal administrator, organizer, or leader of the enterprise or was one of several such principal administrators, organizers, or leaders; and, two, whose enterprise either, A, involved at least 150 kilograms of cocaine, or, B, received $10 million in gross receipts during any twelve-month period of its existence for distributing a controlled substance.

Reviewing the trial record and our decision in Montalvo I, the district court held that "[t]here is no question that [Montalvo] met all of these criteria."

The district court also rejected any Ex Post Facto Clause concerns with applying the amended statute to Montalvo's case, holding that intervening case law directs that "the revised penalties of Section 848(b) apply to any continuing criminal enterprise that extended past October 27, 1986, regardless of when it originally began." The district court concluded that "the fact that [Montalvo's] conspiracy continued until the [May 19,] 1987 arrest was established by the trial evidence and has been specifically stated by the Ninth Circuit in affirming [Montalvo's] conviction, as well as [co-defendant Jennifer] Matsuzaki's conviction." Therefore, the district court imposed a sentence of life imprisonment pursuant to section 848(b).

During the next twelve-and-a-half years Montalvo filed five separate Rule 35(a) motions, one pro se section 2255 petition, and four unsuccessful appeals to this court. The instant appeal concerns Montalvo's sixth and most recent Rule 35(a) motion, filed on February 21, 2007, and amended on May 4, 2007. In it, Montalvo argued that his sentence is unconstitutional on multiple grounds and that the sentencing court lacked subject matter jurisdiction over his case. The magistrate judge (MJ) to which this motion was referred ruled that "Rule 35 does not provide a mechanism for review of any of Montalvo's claims, nor should that Rule act as an omnipresent litigation wild card available to a defendant whenever, and however many times, he chooses to play it." Accordingly, the MJ recommended that the motion be dismissed without addressing the merits. The district court adopted the MJ's recommendation in full. This appeal followed.


We first determine whether we have jurisdiction over this appeal. Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir.2009) ("Although neither party raised the issue of our jurisdiction to entertain this appeal, we have a duty to consider it sua sponte"). Our appellate jurisdiction extends to all "final decisions" of the district courts. 28 U.S.C. § 1291. In criminal cases, a final decision is rendered upon imposition of the defendant's sentence. Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377 (1956) (holding that "[f]inal judgment in a criminal case means sentence"), quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937).

Here, Montalvo was resentenced in January 1994. His criminal case was therefore reduced to a final appealable decision at that time. He now appeals from the district court's order denying a subsequently-filed Rule 35(a) motion to correct that sentence. Although a Rule 35(a) motion is necessarily a post-conviction, post-sentencing motion, it is deemed filed in the defendant's original criminal case. Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). As such, the district court's order resolving Montalvo's Rule 35(a) motion merges into the final judgment and is appealable pursuant to section 1291. Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897 (9th Cir.2001) ("A necessary corollary to the final judgment rule is that a party may appeal interlocutory orders after entry of final judgment because those orders merge into that final judgment").

Our decision in United States v. Arishi, 54 F.3d 596 (9th Cir.1995) does not counsel otherwise. In that case, we addressed our appellate jurisdiction over an appeal from a district court's ruling on a Rule 35(b) motion. Rule 35(b), like Rule 35(a), prescribes procedures for the correction and modification of criminal sentences. In Arishi, we held that "the exclusive avenue of appeal of rulings on Rule 35(b) motions is 18 U.S.C. § 3742." Id. at 599. In so ruling, we rejected the defendant's contention that section 1291 provides an independent statutory basis for jurisdiction over the appeal. We reasoned that section 3742 evidenced Congress' intent to restrict sentencing appeals to the statutorily-created criteria delineated in that section. Id. at 598-99, citing United States v. Chavarria-Herrara, 15 F.3d 1033, 1035-36 (11th Cir. 1994). Therefore, we held, section 1291 did not supply jurisdiction over the appeal.

Arishi does not preclude the exercise of section 1291 jurisdiction over the instant appeal. Section 3742 governs only those appeals from sentences based on offenses committed after November 1, 1987. United States v. Byerley, 46 F.3d 694, 699 (7th Cir.1995), citing Pub.L. No. 100-182, § 2, 101 Stat. 1266 (1987), overruled on other grounds by, United States v. Clark, 538 F.3d 803 (7th Cir.2008). In this case, Montalvo's sentence is based on offenses committed prior to that date. Therefore, section 3742 does not dictate the terms of this appeal. Rather, the general provision for appellate jurisdiction provided in section 1291 applies. See United States v. McAndrews, 12 F.3d 273, 276 (1st Cir. 1993) (stating that "[p]rior to the advent of guideline sentencing," a criminal defendant could invoke section 1291 in order to appeal his sentence). As described above, our jurisdiction pursuant to that section is secure.


With respect to the merits of this appeal, Montalvo argues that the district court erred in ruling that Rule 35(a) does not provide an appropriate vehicle for correcting the alleged errors in his sentence. We revi...

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