United States v. Omar Torres-Montalvo , 644 F. App'x 195 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-2881
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UNITED STATES OF AMERICA
v.
OMAR TORRES-MONTALVO,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 2-95-cr-00070-001)
District Judge: Honorable Jose L. Linares
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Submitted Under Third Circuit LAR 34.1(a)
March 17, 2016
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Before: CHAGARES, RESTREPO and VAN ANTWERPEN, Circuit Judges.
(Filed: March 17, 2016)
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OPINION*
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RESTREPO, Circuit Judge.
Omar Torres-Montalvo appeals the District Court’s order granting a sentencing
reduction pursuant to 18 U.S.C. § 3582(c)(2). Following a retroactive amendment to the
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
United States Sentencing Guidelines, the District Court reduced Torres-Montalvo’s
sentence from life imprisonment to 600 months’ imprisonment. Torres-Montalvo
challenges the extent of the reduction. We will affirm.
I
In 1995, a jury convicted Torres-Montalvo of conspiracy to kidnap, 18 U.S.C.
§ 1201(c); two counts of kidnapping, 18 U.S.C. § 1201(a)(1); and conspiracy to distribute
thirty kilograms of cocaine, in violation of 21 U.S.C. § 846. The District Court sentenced
him to life imprisonment. We affirmed on direct appeal. United States v. Palma-Ruedas,
121 F.3d 841 (3d Cir. 1997). We later affirmed the denial of a sentencing reduction
motion. United States v. Torres-Montalvo, 580 F. App’x 54 (3d Cir. 2014).
In 2015, Torres-Montalvo filed in the District Court the instant motion for
sentencing reduction under 18 U.S.C. § 3582(c)(2), pursuant to Amendment 782 of the
Sentencing Guidelines. Amendment 782 reduced by two the offense levels in Section
2D1.1 for drug quantities that trigger a mandatory minimum sentence. U.S.S.G. Supp.
App. C, Amend. 782. Amendment 782 is retroactive, subject to the limitations of Section
1B1.10, the policy statement on retroactive guideline amendments. U.S.S.G. Supp. App.
C, Amend. 788; U.S.S.G. § 1B1.10.
Under Amendment 782, Torres-Montalvo’s guideline range was reduced. His
original guideline range was life imprisonment, based upon a total offense level of 44
(capped at 43) and a criminal history category of II. See U.S.S.G. Ch. 5, Pt. A, cmt. n.2
(1995). Under Amendment 782, his amended guideline range is 360 months to life,
based upon a total offense level of 42 and a criminal history category of II.
2
The District Court granted Torres-Montalvo’s motion for sentencing reduction
under Amendment 782, and resentenced him to 600 months’ incarceration. This
reduction was effective November 1, 2015, the effective date of Amendment 782. See
U.S.S.G. §§ 1B1.10(e)(1), 1B1.10, cmt. n.6. Torres-Montalvo appealed, challenging the
extent of the reduction.
II
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
We sua sponte address the issue of jurisdiction in further detail, in light of the
procedural history of the instant case. See, e.g., Aloe Coal Co. v. Clark Equip. Co., 816
F.2d 110, 112 (3d Cir. 1987). We note that the District Court reduced Torres-Montalvo’s
sentence by issuing not one, but two orders. The first order, entered July 29, 2015,
reduced Torres-Montalvo’s sentence to 600 months’ imprisonment, but was silent as to
the four counts of conviction. Torres-Montalvo then filed a timely notice of appeal on
August 4, 2015. On August 20, 2015, the District Court entered a superseding order,
which clarified that the sentence of 600 months’ imprisonment is to be served
concurrently on each of the four counts.
The imposition of concurrent sentences in the superseding order is consistent with
Torres-Montalvo’s original 1996 sentence, which was life imprisonment, to be served
concurrently on each of the four counts. Torres-Montalvo does not object to the issuance
of a superseding order.
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We hold that under these circumstances, appellate jurisdiction over the
superseding order is proper. Torres-Montalvo’s timely filed notice of appeal from the
July 29, 2015 order perfected his appeal. He was “not required to file a second notice of
appeal” from the superseding order. Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1139
n.1 (3d Cir. 1993). This is so because the July 29, 2015 order was a final judgment. The
superseding order corrected a clerical mistake in the judgment, as authorized by Rule 36
of the Federal Rules of Criminal Procedure. See United States v. Bennett, 423 F.3d 271,
277-78 (3d Cir. 2005). “‘[A] motion to correct a clerical mistake does not affect the
finality of the original judgment nor does it toll the time limits within which an appeal
must be taken.’ (citations omitted)[.]” Gillis, 4 F.3d at 1139 n.1 (alteration in original)
(quoting Barris v. Bob’s Drag Chutes & Safety Equip., Inc., 717 F.2d 52, 55 (3d Cir.
1983)).
III
We now turn to the merits of Torres-Montalvo’s claim. Section 3582(c)(2)
permits a district court to reduce the term of imprisonment of a defendant who was
sentenced “based on a sentencing range that has subsequently been lowered by the
Sentencing Commission,” provided that “such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see
also Dillon v. United States, 560 U.S. 817, 826 (2010). If these two requirements are
met, a district court has discretion whether to grant a sentencing reduction. United States
v. Fleming, 723 F.3d 407, 410 (3d Cir. 2013).
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In the instant case, the District Court granted Torres-Montalvo’s motion, and so,
the dispute concerns only the extent of the reduction. A district court determines the
extent of a sentencing reduction after consideration of both the applicable Section
3553(a) factors, and public safety. U.S.S.G. § 1B1.10, cmt. n.1(B)(i)-(ii) (citing 18
U.S.C. § 3553(a)). A district court may also consider a defendant’s post-sentencing
conduct. U.S.S.G. § 1B1.10, cmt. n.1(B)(iii).
We review the decision to grant a sentencing reduction under 18 U.S.C.
§ 3582(c)(2) for abuse of discretion. United States v. Styer, 573 F.3d 151, 153 (3d Cir.
2009). Our standard of review is “deferential.” Id. at 155. “As the district court is in the
best position to determine the appropriate sentence, we may not reverse simply because
we would have imposed a different sentence.” Id. (citation omitted).
In the instant case, the District Court reduced Torres-Montalvo’s sentence of life
imprisonment to 600 months’ imprisonment. Torres-Montalvo, however, had requested a
new sentence of 360 months, the bottom of the amended guideline range. Torres-
Montalvo contends that the District Court’s sentence of 600 months is substantively
unreasonable.
We find no abuse of discretion. In a written opinion, the District Court carefully
applied the policy directive, U.S.S.G. § 1B1.10, to the instant case. The District Court
considered Torres-Montalvo’s rehabilitation in prison, along with the Government’s
argument that he still poses a risk to public safety. The District Court considered that this
case involved “deplorable crimes,” a large-scale drug conspiracy that resulted in
violence. App. 16; see also Palma-Ruedas, 121 F.3d at 845-46. Torres-Montalvo and
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his co-conspirators kidnapped an associate in the illegal drug trade, held the victim
captive, threatened to kill him and his family, and held a gun to his head. Palma-Ruedas,
121 F.3d at 846. Torres-Montalvo also kidnapped and held hostage that victim’s family.
Id. The District Court further considered the fact that Torres-Montalvo has a history of
concealing his identity. As to Torres-Montalvo’s post-sentence conduct, the District
Court found that while he “has been relatively well-behaved during his 20 years in
prison,” he does have a disciplinary record, including a fairly recent infraction for
fighting. App. 14. “This weighing and consideration of multiple factors, expressly left to
a court’s discretion, is exactly the type of ‘reasoned appraisal’ to which we defer on
review.” Styer, 573 F.3d at 155 (quoting Kimbrough v. United States, 552 U.S. 85, 111
(2007)).1
IV
For the foregoing reasons, we will affirm the judgment of the District Court.
1
Torres-Montalvo also asserts that the reduced sentence of 600 months is a de
facto life sentence. “There is a worthy tradition that death in prison is not to be ordered
lightly, and the probability that a convict will not live out his sentence should certainly
give pause to a sentencing court.” United States v. Wurzinger, 467 F.3d 649, 652 (7th
Cir. 2006). However, as Torres-Montalvo concedes, a de facto life sentence is not per se
unreasonable. We agree. “The fact that [a defendant] may die in prison does not mean
that his sentence is unreasonable.” United States v. Ward, 732 F.3d 175, 186 (3d Cir.
2013). Under the facts of the instant case, the District Court was not unreasonable in
imposing a within-Guideline sentence of 600 months.
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