United States v. Michael Montalvo

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10568
Plaintiff-Appellee, D.C. No. 2:89-cr-00062-WBS
v.
MEMORANDUM*
MICHAEL L. MONTALVO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Michael L. Montalvo appeals pro se from the district court’s order denying
his motion under former Federal Rule of Criminal Procedure 35(a) (1987) (“Rule
35(a)”), declaring him a vexatious litigant, and imposing a pre-filing restriction
against him. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Montalvo contends that the district court erred by denying his sixth motion
to correct his sentence under Rule 35(a). As we have previously determined,
Montalvo has not shown that he is entitled to relief under Rule 35(a). See Fed. R.
Crim. P. 35(a) (1987) (court “may correct an illegal sentence at any time”); United
States v. Montalvo, 581 F.3d 1147, 1151-54 (9th Cir. 2009) (Montalvo’s lifetime
sentence is authorized by his statute of conviction and his process-based challenges
are not properly raised under Rule 35(a)); see also United States v. Montalvo, 74
F.3d 1247, at *1 (9th Cir. 1996) (unpublished table decision) (Montalvo’s sentence
does not violate the Ex Post Facto Clause). We reject Montalvo’s challenge to the
magistrate judge’s order of non-recusal.
Montalvo next contends that the district court abused its discretion in
declaring him a vexatious litigant and imposing a pre-filing restriction against him.
The district court did not abuse its discretion in imposing the order because it gave
Montalvo notice and an opportunity to be heard, developed an adequate record for
review, made substantive findings regarding Montalvo’s frivolous litigation
history, and tailored the restriction narrowly. See Molski v. Evergreen Dynasty
Corp., 500 F.3d 1047, 1057-58 (9th Cir. 2007).
AFFIRMED.
2 15-10568