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United States v. Montalvo Davila

United States Court of Appeals, Fifth Circuit

May 16, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
JESUS LEONARDO MONTALVO DAVILA, also known as Jesus Montalvo, also known as Jesus L. Montalvo, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.


         Defendant-Appellant Jesus Montalvo Davila moves to recall the mandate and for leave to file an out-of-time petition for panel rehearing in light of United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc). In addition, the Federal Public Defender moves to be reappointed as Montalvo's counsel on appeal. We grant the motions.


         In 2015, Montalvo pleaded guilty to reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). The presentence report recommended applying a 16-level "crime of violence" enhancement pursuant to § 2L1.2(b)(1)(A)(ii) of the 2015 Sentencing Guidelines based on Montalvo's prior conviction for burglary of a habitation under Texas Penal Code § 30.02(a). Montalvo objected, arguing that his prior conviction did not qualify for that enhancement because Texas Penal Code § 30.02(a) is an "indivisible" statute and is categorically broader than generic "burglary of a dwelling, " the pertinent "crime of violence" enumerated in the 2015 Guidelines. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2015). The district court overruled the objection. With the enhancement, Montalvo faced a Guidelines range of 57 to 71 months in prison. The district court granted Montalvo's request for a downward variance and sentenced him to 47 months in prison. Had the enhancement not been applied, Montalvo maintains he would have faced a Guidelines range of 24 to 30 months in prison.

         Montalvo appealed, challenging his sentence on the same grounds as in the district court. He argued that the Supreme Court's intervening decision in Mathis v. United States, 136 S.Ct. 2243 (2016), supported finding the Texas burglary statute to be indivisible, but a panel of this court soon rejected that contention in United States v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016). Because Uribe foreclosed Montalvo's indivisibility argument, we affirmed his sentence. United States v. Montalvo Davila, 688 Fed.Appx. 285 (5th Cir. 2017). Judgment was entered on May 1, 2017. On May 4, 2017, the court granted the Federal Public Defender's motion to withdraw as Montalvo's counsel. The mandate issued on May 23, 2017.

         On February 20, 2018, the en banc court issued its decision in Herrold, holding that the Texas burglary statute is indivisible and overruling Uribe. Herrold, 883 F.3d at 529 ("In light of Texas case law, we hold that Texas Penal Code §§ 30.02(a)(1) and (a)(3) are not distinct offenses, but are rather separate means of committing one burglary offense. To the extent that it is inconsistent with this holding, we also overrule our earlier decision in United States v. Uribe."). The mandate in Herrold issued on February 28, 2018.

         On March 2, 2018, Montalvo filed his motion to recall the mandate and for leave to file an out-of-time petition for panel rehearing. The Federal Public Defender thereafter moved to be reappointed as Montalvo's counsel.


         This court has the "inherent power to recall [its] mandates." Calderon v. Thompson, 523 U.S. 538, 549 (1998); United States v. Emeary, 794 F.3d 526, 527-28 (5th Cir. 2015) (Dennis, J., in chambers). "Our authority to recall our own mandate is clear, " United States v. Tolliver, 116 F.3d 120, 123 (5th Cir. 1997), but it is not unbounded. Fifth Circuit Rule 41.2 provides that "[o]nce issued a mandate will not be recalled except to prevent injustice." This rule reflects the general precept that recalling the mandate is appropriate "only in extraordinary circumstances." Calderon, 523 U.S. at 550.

         When faced with a motion to recall its mandate, this court must balance two opposing interests: the interest in "prevent[ing] injustice" in the case at hand, 5th Cir. R. 41.2, and the interest in maintaining the finality of the judgment already rendered in the case. Assessing the relative weights of these competing considerations and determining whether the overall balance warrants recalling the mandate lies within the court's sound discretion. Am. Iron & Steel Inst. v. EPA, 560 F.2d 589, 594-95 (3d Cir. 1977) ("Above all, . . . recall of a mandate is a mode of relief that falls within the ambit of a court's discretion[, ] . . . [a]nd decisions concerning the propriety of such relief must be rendered on a case-by-case basis."). Exercise of that discretion is subject to certain parameters, however. In particular, a proper exercise of discretion requires that the court give due regard to relevant precedent. In re Volkswagen of Am., Inc., 545 F.3d 304, 310 & n.4 (5th Cir. 2008) (en banc) ("[A] court must exercise its discretion within the bounds set by . . . relevant, binding precedents."); see also United States v. Escalante-Reyes, 689 F.3d 415, 425-26 (5th Cir. 2012) (en banc) (explaining that the en banc court's decision to exercise its discretion under the fourth prong of plain-error review was consistent with precedent). Prior caselaw can be relevant to a decision to recall the mandate in two respects. First, it can assist in identifying appropriate factors to weigh against the countervailing interest in finality. Second, since any decision to recall the mandate (or not) reflects a particular instance of a court having balanced the competing interests, a prior decision may direct the same court toward a specific result in a later case. How strongly a given precedent guides a court's discretion in a later case largely depends on the factors present in each case and the relative weight assigned to those factors.[1]Within the metes and bounds set by relevant precedent, however, courts retain ample room to make the case-specific judgment calls that inhere in discretionary rulings of this sort.


         Relying primarily on this court's precedent in Tolliver, Montalvo argues that recalling the mandate in this case is appropriate because: (1) Herrold has rendered our previous decision affirming his sentence "demonstrably wrong, " and (2) failure to recall the mandate would produce an unwarranted disparity between him and similarly situated defendants in other cases. We agree that both of these factors favor recall and find that a third consideration- Montalvo's demonstrated diligence in asserting his claim-does as well.


         Courts exist not merely to decide cases, but to decide them correctly. See W. Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 704 (5th Cir. 1954) (recognizing "two principles of judicial administration founded on sound public policy, namely, that litigation must finally and definitely terminate within a reasonable time and that justice must be done unto the parties"). The public interest in correcting an erroneous conviction or sentence "may counsel a more generous recall rule in criminal cases" than in other contexts. 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3938, p. 880 (3d ed. 2012) (hereinafter, "Wright & Miller").

         Thus, we have recognized that recalling the mandate is appropriate when a subsequent decision of the Supreme Court or this court renders a previous decision "demonstrably wrong." Tolliver, 116 F.3d at 123; United States v. Fraga-Araigo, 281 F.3d 1278, 2001 WL 1692406, at *1 (5th Cir. 2001) (unpublished decision).[2] A previous decision is "demonstrably wrong" if it "directly conflicts with" the subsequent decision. Tolliver, 116 F.3d at 123; see also Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 90 (2d Cir. 1996) ("One circumstance that may justify recall of a mandate is '[a] supervening change in governing law that calls into serious question the correctness of the court's judgment.'" (quoting McGeshick v. Choucair, 72 F.3d 62, 63 (7th Cir. 1995))).

         In Tolliver, this court recalled its mandate after the Supreme Court "clearly overrule[d] [the] precedent upon which [this court] had relied to affirm" a defendant's convictions. 116 F.3d at 124. The same circumstance is present here and favors recalling the mandate at least as strongly as it did in Tolliver. Herrold is a "subsequent decision" that "directly conflicts with" our previous decision affirming Montalvo's sentence. Herrold holds that the Texas burglary statute is broader than generic burglary, meaning that Montalvo's prior conviction under that statute does not qualify for the 16-level "crime of violence" enhancement he received. See Herrold, 883 F.3d at 529. Had Herrold been decided at the time we issued our previous decision, we would not have followed Uribe's contrary holding and would not have affirmed Montalvo's sentence. The interest in correcting our decision, now that Herrold has rendered it "demonstrably wrong, " weighs heavily in favor of recalling the mandate in this case.[3]


         "Recalling the mandate is also appropriate 'where there is a danger of incongruent results in cases pending at the same time.'" Tolliver, 116 F.3d at 123 (quoting Am. Iron & Steel Inst., 560 F.2d at 594); accord Greater Boston Television Corp. v. FCC, 463 F.2d 268, 278-79 (D.C. Cir. 1971); see also 16 Wright & Miller § 3938, p. 880 (citing "the desire to achieve like treatment of defendants in like situations" as a factor favoring recalling the mandate in criminal cases). In Tolliver, the court granted a defendant's motion to recall the mandate after the Supreme Court vacated his co-defendants' convictions under the same statute. 116 F.3d at 123-24. Combined with the previous factor, the court found that the potential incongruity made recall "appropriate and in the interest of justice." Id. (relying on Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967)).

         Failure to recall the mandate in the present case would create an unwarranted sentencing disparity between Montalvo and similarly situated defendants in cases where the mandate has not yet issued.[4] Although these individuals are not Montalvo's co-defendants, the resultant disparity would undermine a central purpose of the Sentencing Guidelines, see Tapia v. United States, 564 U.S. 319, 324-25 (2011) (noting that a central concern with the system that preceded the Sentencing Guidelines was that it produced significant sentencing disparities among similarly situated defendants); Mistretta v. United States, 488 U.S. 361, 365, 368 (1989), and the categorical approach, see Taylor v. United States, 495 U.S. 575, 590, 600-01 (1990). The interest in avoiding such a discrepancy counsels in favor of recalling the mandate at least as strongly as the "danger of incongruent results" did in Tolliver. This factor weighs significantly in favor of granting Montalvo's motion.


         There are no per se time limits or any precise procedural hurdles that a movant must satisfy for a court to recall its mandate. See Emeary, 794 F.3d at 529 (recalling mandate more than five years after it issued); Tolliver, 116 F.3d at 123-24 (recalling mandate even though movant did not petition Supreme Court for a writ of certiorari). Nonetheless, whether a movant has diligently pursued his claim or otherwise demonstrated a "true interest" in obtaining his desired relief can be a relevant consideration. See Fraga-Araigo, 2001 WL 1692406, at *2 ("[T]he apparent lack of true interest on the part of the movant would tend to show that injustice has not been done.").

         The Government faults Montalvo for not filing a petition for rehearing en banc or a petition for a writ of certiorari. However, Montalvo objected to his sentence enhancement in the district court, not just on appeal. That shows sufficient diligence on his part. The court in Tolliver did not rely on this ...

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