Appeal from a judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge).
United States v. Gonzalez-Montes
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 28th day of October, two thousand eleven.
PRESENT: JOSE A. CABRANES, DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges.
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 5 DECREED that the judgment of the District Court be AFFIRMED.
6 Defendant-appellant Jose Gonzalez-Montes appeals from a March 22, 2010 judgment of the 7 District Court for the Northern District of New York sentencing him principally to 41 months 8 imprisonment for violations of 8 U.S.C. § 1326(a) and (b). On appeal, Gonzalez-Montes argues that he 9 received ineffective assistance of counsel because his attorney did not argue for a sentence below the 10 Guidelines range, but instead requested a sentence at the bottom of the applicable Guidelines range.
12 Defendant-appellant Gonzalez-Montes, a citizen of Mexico and an undocumented alien, was 13 convicted after a guilty plea in the United States District Court for the Northern District of New York 14 of illegally reentering the United States after having been removed following conviction of domestic 15 violence against his wife, an aggravated felony.
16 Prior to sentencing, Gonzalez-Montes's counsel filed a sentencing memorandum in which she 17 made several arguments in mitigation of the offense. First, the attorney pointed out that Gonzalez- 18 Montes had had no contact with the criminal justice system between the completion of his sentence in 19 California and his arrest on the current charges. She then explained that Gonzalez-Montes had originally 20 traveled from Mexico to Canada with the intent to return directly to Mexico, but had changed his mind 21 and entered the United States at the last moment--in other words, he had not set out on his trip from 22 Mexico with the intention of illegally entering the United States. She also presented the court with a 23 letter from Gonzalez-Montes' wife, Veronica Reyes, in which Reyes recanted her allegations of domestic 24 abuse against Gonzalez-Montes, described her family's difficulties since her husband's departure, 25 explained that his mother was very ill, and begged the court for his immediate return. Counsel then 26 noted that Gonzalez-Montes was deeply remorseful for his actions.
27 Counsel further argued that, although Gonzalez-Montes would not contest the Guidelines range 28 calculated in the presentence report, the Guidelines themselves were no longer mandatory and to treat them as such would constitute grave procedural error. Instead, she argued, the court should impose a 2 sentence that was sufficient but not greater than necessary to achieve the goals of sentencing. She ended 3 her memorandum with a request that the court impose a sentence at the bottom of the applicable 4 Guidelines range.
5 At sentencing the court adopted the presentence report without objection from either side, 6 granted a one-level downward departure on the government's motion, and calculated Gonzalez- 7 Montes's Guidelines range of imprisonment at 41-51 months. The court then heard argument from 8 defense counsel and the prosecution, as well as an allocution from Gonzalez-Montes himself. After 9 evaluating the required sentencing factors under 18 U.S.C. § 3553(a), the court pronounced sentence, 10 explaining that while "there is nothing about [Gonzalez-Montes's] conduct that would cause me to 11 impose a sentence beyond the minimum under the guidelines," he saw "no reason . . . to do anything 12 when I evaluate the sentencing factors in the scheme Congress has ...