     09-0827-cr
     United States v. Montague
 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 11 th day of May, two thousand ten.
17
18   PRESENT:            ROGER J. MINER,
19                       GERARD E. LYNCH,
20                                       Circuit Judges,
21                       DAVID G. TRAGER,
22                                       District Judge.*
23
24   ------------------------------------------------------------------
25
26   UNITED STATES OF AMERICA,
27                           Appellee,
28                  v.                                                         No. 09-0827-cr
29
30   CLARENCE MONTAGUE,
31   also known as JEFFREY SPENCER,
32                                             Defendant-Appellant.
33   --------------------------------------------------------------------
34   FOR APPELLANT:                   Yuanchung Lee, Federal Defenders of New York, Inc.,
35                                    Appeals Bureau, New York, New York, on submission.
36
37   FOR APPELLEE:                    Howard S. Master, Katherine Polk Failla Assistant United
38                                    States Attorneys for Preet Bharara, United States Attorney for
39                                    the Southern District of New York, New York, New York, on
40                                    submission.




               *
             The Honorable David G. Trager, of the United States District Court for the
     Eastern District of New York, sitting by designation.
 1          Appeal from a judgment of conviction and sentence entered in the United States

 2   District Court for the Southern District of New York (William H. Pauley III, Judge).

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

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Clarence Montague appeals from a sentence of 41 months in prison imposed for a

 6   conviction, following a guilty plea, of illegal reentry into the United States after

 7   deportation subsequent to conviction for an aggravated felony in violation of 8 U.S.C. §

 8   1326(a) & (b)(2). We assume the parties’ familiarity with the relevant facts and

 9   procedural history of this case, and the issues presented on this appeal.

10          In coming to a reasonable sentence, a district court must consider the factors listed

11   in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines range, and “conduct

12   its own independent review of the sentencing factors, aided by the arguments of the

13   prosecution and defense,” in order to reach “an informed and individualized judgment . . .

14   as to what is ‘sufficient, but not greater than necessary’ to fulfill the purposes of

15   sentencing.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc),

16   quoting 18 U.S.C. § 3553(a). We review sentences under a “deferential abuse-of-

17   discretion standard,” id., quoting Gall v. United States, 552 U.S. 38, 40 (2007), and will

18   “set aside a district court’s substantive determination only in exceptional cases where the

19   trial court’s decision cannot be located within the range of permissible decisions,” id.

20   (emphasis and internal quotations marks omitted).

21          Montague argues that his sentence was “greater than necessary to achieve the ends


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 1   of sentencing.” In arguing that his sentence was substantively unreasonable, Montague

 2   emphasizes that he has no criminal history apart from the relevant aggravated felony,

 3   which was the result of an “incident” that occurred twenty years ago in 1989. He adds

 4   that following this incident he was on pretrial release for three years with no

 5   complications, while he worked and supported his family, and that while in prison he was

 6   a “model inmate,” received education, and developed working skills as a carpenter.

 7   Moreover, Montague stresses that the only reason for his illegal reentry was the

 8   commendable purpose of helping save his teenage son from going down a wayward path

 9   towards crime. According to Montague, his efforts have succeeded, and his son has

10   grown toward law-abiding adulthood. Finally, Montague notes that he fully cooperated

11   with police regarding his illegal reentry, and never contested his guilt. For these reasons,

12   among others, Montague argues that he should have received a lighter sentence.

13          However, the “incident” that Montague was imprisoned for was first-degree

14   manslaughter for which he spent eight years in prison. As the district court noted, an

15   individual, like Montague, who has committed “such a violent felony is precisely the kind

16   of individual who the law intends to keep out of the United States.” With regards to

17   Montague’s reason for his reentry, the district court correctly noted that “[w]hile it was

18   certainly a noble purpose for which he was coming back here to aid his son there were

19   many alternatives to the defendant defying the orders of the Court and reentering the

20   United States without permission.” His son could have received guidance from people

21   who already lived in the United States, or gone to Jamaica to be with his father.


                                                   3
 1   Moreover, the district court reasonably considered Montague’s illegal reentry a bad

 2   example for his son. The district court’s bottom-of-the-Guidelines sentence, which was

 3   based on these considerations along with the need for specific and general deterrence

 4   aimed at Montague and other people convicted of violent felonies, was not substantively

 5   unreasonable.

 6          Montague argues that we should follow the Ninth Circuit’s decision in United

 7   States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), which held that a 52-month

 8   sentence for illegal reentry, which fell within the applicable 46 to 57 month Guidelines

 9   range, was substantively unreasonable, because “of the staleness of [the defendant’s]

10   prior conviction and his subsequent history showing no convictions for harming others or

11   committing other crimes listed in Section 2L1.2 [of the Guidelines].” Id. at 1055.

12          Montague’s reliance on Amezcua-Vasquez is unavailing. Aside from the fact that

13   the decision in Amezcua-Vasquez is not binding on us, it is also distinguishable. First,

14   Montague was deported after being convicted of a more serious crime and serving a

15   longer sentence than Amezcua. Amezcua was sentenced to four years for assault with

16   great bodily injury and attempted voluntary manslaughter, while Montague served eight

17   years for first degree manslaughter pursuant to a four to twelve year sentence. See id. at

18   1051. Second, Amezcua’s prior conviction was more “stale.” He was convicted in 1981,

19   released in 1984, but only deported in 2006. Id. at 1052, 1056. In contrast, Montague

20   was convicted in 1992 and released and immediately deported in 2000. To point out that

21   it has been eighteen years since this conviction is to ignore the fact that about half of that


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 1   time was spent in custody, either on the manslaughter conviction or on the instant charge,

 2   and most of the rest was spent outside the United States. Indeed, unlike Amezcua,

 3   Montague’s criminal conviction was recent enough to be included in the calculation of his

 4   criminal history points. Third, the challenged illegal-reentry sentence in Amezcua-

 5   Vasquez was eleven months longer than Montague’s sentence. Finally, Amezcua had

 6   lived in the United States for almost fifty years prior to his deportation, which was far

 7   longer than Montague had. Given these various distinctions, even assuming arguendo

 8   that Amezcua-Vasquez was correctly decided (an issue we need not and do not address),

 9   that case does not persuade us that Montague’s sentence was unreasonable.

10          While Montague argues that he has even stronger mitigating factors than

11   Amezcua, because he has no other criminal convictions, he waited six years before

12   illegally reentering following deportation, while Amezcua waited only two weeks, and he

13   came back to counsel his son, instead of to work, this argument is unconvincing.

14   Amezcua’s additional convictions were for relatively minor offenses, and while

15   Montague may have had a more sympathetic purpose for returning to the United States,

16   that is not enough to show that Montague has stronger mitigating circumstances.

17          Montague also argues that the fact that other judicial districts use “fast-track”

18   programs for illegal reentry convictions, where defendants in the same position as he get

19   lighter sentences in exchange for agreeing to a quick removal, evinces that a lighter

20   sentence would be sufficient. However, we have explicitly ruled that “a district court’s

21   refusal to adjust a sentence to compensate for the absence of a fast-track program does


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 1   not make a sentence unreasonable.” United States v. Mejia, 461 F.3d 158, 164 (2d Cir.

 2   2006).

 3            Finally, Montague’s argument that his sentence is unreasonable because the

 4   Guidelines provide for the same or lower offense levels for crimes that are, in his

 5   estimation, worse than his crime of illegal reentry may suggest that the Sentencing

 6   Commission could usefully revisit its guidelines, but does not show that his sentence was

 7   substantively unreasonable. The Sentencing Commission, and the district court, are

 8   entitled to make their own judgments about the need for punishment and deterrence, and

 9   the relative seriousness of different offenses. We cannot say that the district court’s

10   decision to treat Montague’s crime as serious and the need for deterrence as great was an

11   unreasonable exercise of its discretion.

12            For the foregoing reasons, the judgment of the district court is AFFIRMED.

13

14                                       FOR THE COURT:

15                                       CATHERINE O’HAGAN WOLFE, Clerk of Court

16




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