FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 07-16762
Plaintiff-Appellee, D.C. Nos.
v. CV-07-COA-
Postjgmt
MICHAEL L. MONTALVO, CR-89-00062-WBS
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
March 10, 2009—San Francisco, California
Filed September 16, 2009
Before: J. Clifford Wallace, Sidney R. Thomas and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace
13457
13460 UNITED STATES v. MONTALVO
COUNSEL
Richard B. Mazer, Law Offices of Richard B. Mazer, San
Francisco, California, for the defendant-appellant.
McGregor W. Scott, United States Attorney, and Phillip A.
Talbert, Assistant United States Attorney, Chief of Appeals,
Sacramento, California, for the plaintiff-appellee.
OPINION
WALLACE, Senior Circuit Judge:
Nearly two decades ago, a jury found Montalvo guilty of
operating a continuing criminal enterprise engaged in the sale
and trafficking of illegal narcotics. He was subsequently sen-
tenced to life imprisonment. Since then, Montalvo has pur-
sued a multitude of post-conviction motions and appeals
seeking relief from his conviction and sentence. Indeed, this
is the seventh time we have been called upon to review the
validity of Montalvo’s sentence. In the instant appeal, we
must determine whether the district court erred in dismissing
Montalvo’s sixth, and most recent, motion to correct his sen-
tence pursuant to a prior version of Federal Rule of Criminal
Procedure 35(a). We first hold that we have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291. Exercising that
jurisdiction, we affirm the district court’s dismissal of Mon-
talvo’s Rule 35(a) motion.
I.
As we recounted during a prior review of Montalvo’s con-
viction and sentence, “[f]rom 1983 until his arrest on May 19,
UNITED STATES v. MONTALVO 13461
1987, [Montalvo] was at the helm of . . . a large and
extremely well-organized cocaine distribution business based
in California.” United States v. Montalvo (Montalvo I), Nos.
90-10078, 90-10080, 90-10081, 90-10082, 90-10585 and 90-
10586, 1992 WL 184342, at *1 (9th Cir. Aug. 4, 1992). He
operated his drug company “much like a legitimate enter-
prise,” requiring his employees to “dress in business attire, to
work 8:00 a.m. until 5:00 p.m. five days a week, and to carry
pagers so that they could be easily contacted.” Id. His
employees were forbidden from carrying guns or using drugs
themselves. Id. We further determined that Montalvo’s busi-
ness “met with tremendous financial success; in 1985, for
example, he grossed 68 million dollars in cocaine sales.” Id.
On March 3, 1989, a grand jury returned a two-count super-
seding indictment against Montalvo and his various co-
defendants. Count I charged Montalvo and others with
belonging to a cocaine conspiracy stretching from June 1982
to May 19, 1987, in violation of 21 U.S.C. §§ 841(a)(1) and
846. Count II charged only Montalvo with operating a contin-
uing criminal enterprise during the same time period in viola-
tion of 21 U.S.C. § 848. With respect to Count II, we
previously determined that the version of section 848 in effect
at the time of Montalvo’s arrest applies to this case. United
States v. Montalvo (Montalvo III), Nos. 94-10108, 94-10110,
1996 WL 2205, at *1 (9th Cir. June 21, 1996). Therefore, any
references to section 848 in this opinion will be to the previ-
ous version of that statute.
On October 19, 1989, a jury convicted Montalvo on Count
II of the indictment. The district court then sentenced Mon-
talvo to life imprisonment pursuant to its discretionary author-
ity under section 848(a). On appeal, we upheld Montalvo’s
conviction, but remanded the case for resentencing and for a
post-trial review of certain personnel records of government
witnesses. Montalvo I, 1992 WL 184342, at *17. Meanwhile,
an intervening coram nobis petition, construed as a 28 U.S.C.
13462 UNITED STATES v. MONTALVO
§ 2255 petition, also reached us on appeal and was subse-
quently denied.
Montalvo was resentenced on January 14, 1994. At resen-
tencing, the district court observed that on October 27, 1986,
section 848 had been amended to require a life sentence for
any continuing criminal enterprise defendant who was:
[O]ne, the principal administrator, organizer, or
leader of the enterprise or was one of several such
principal administrators, organizers, or leaders; and,
two, whose enterprise either, A, involved at least 150
kilograms of cocaine, or, B, received $10 million in
gross receipts during any twelve-month period of its
existence for distributing a controlled substance.
Reviewing the trial record and our decision in Montalvo I, the
district court held that “[t]here is no question that [Montalvo]
met all of these criteria.”
The district court also rejected any Ex Post Facto Clause
concerns with applying the amended statute to Montalvo’s
case, holding that intervening case law directs that “the
revised penalties of Section 848(b) apply to any continuing
criminal enterprise that extended past October 27, 1986,
regardless of when it originally began.” The district court con-
cluded that “the fact that [Montalvo’s] conspiracy continued
until the [May 19,] 1987 arrest was established by the trial
evidence and has been specifically stated by the Ninth Circuit
in affirming [Montalvo’s] conviction, as well as [co-defendant
Jennifer] Matsuzaki’s conviction.” Therefore, the district
court imposed a sentence of life imprisonment pursuant to
section 848(b).
During the next twelve-and-a-half years Montalvo filed
five separate Rule 35(a) motions, one pro se section 2255
petition, and four unsuccessful appeals to this court. The
instant appeal concerns Montalvo’s sixth and most recent
UNITED STATES v. MONTALVO 13463
Rule 35(a) motion, filed on February 21, 2007, and amended
on May 4, 2007. In it, Montalvo argued that his sentence is
unconstitutional on multiple grounds and that the sentencing
court lacked subject matter jurisdiction over his case. The
magistrate judge (MJ) to which this motion was referred ruled
that “Rule 35 does not provide a mechanism for review of any
of Montalvo’s claims, nor should that Rule act as an omni-
present litigation wild card available to a defendant whenever,
and however many times, he chooses to play it.” Accordingly,
the MJ recommended that the motion be dismissed without
addressing the merits. The district court adopted the MJ’s rec-
ommendation in full. This appeal followed.
II.
We first determine whether we have jurisdiction over this
appeal. Symantec Corp. v. Global Impact, Inc., 559 F.3d 922,
923 (9th Cir. 2009) (“Although neither party raised the issue
of our jurisdiction to entertain this appeal, we have a duty to
consider it sua sponte”). Our appellate jurisdiction extends to
all “final decisions” of the district courts. 28 U.S.C. § 1291.
In criminal cases, a final decision is rendered upon imposition
of the defendant’s sentence. Parr v. United States, 351 U.S.
513, 518 (1956) (holding that “[f]inal judgment in a criminal
case means sentence”), quoting Berman v. United States, 302
U.S. 211, 212 (1937).
[1] Here, Montalvo was resentenced in January 1994. His
criminal case was therefore reduced to a final appealable deci-
sion at that time. He now appeals from the district court’s
order denying a subsequently-filed Rule 35(a) motion to cor-
rect that sentence. Although a Rule 35(a) motion is necessar-
ily a post-conviction, post-sentencing motion, it is deemed
filed in the defendant’s original criminal case. Heflin v.
United States, 358 U.S. 415, 418 n.7 (1959). As such, the dis-
trict court’s order resolving Montalvo’s Rule 35(a) motion
merges into the final judgment and is appealable pursuant to
section 1291. Am. Ironworks & Erectors, Inc. v. N. Am. Con-
13464 UNITED STATES v. MONTALVO
str. Corp., 248 F.3d 892, 897 (9th Cir. 2001) (“A necessary
corollary to the final judgment rule is that a party may appeal
interlocutory orders after entry of final judgment because
those orders merge into that final judgment”).
[2] Our decision in United States v. Arishi, 54 F.3d 596 (9th
Cir. 1995) does not counsel otherwise. In that case, we
addressed our appellate jurisdiction over an appeal from a dis-
trict court’s ruling on a Rule 35(b) motion. Rule 35(b), like
Rule 35(a), prescribes procedures for the correction and modi-
fication of criminal sentences. In Arishi, we held that “the
exclusive avenue of appeal of rulings on Rule 35(b) motions
is 18 U.S.C. § 3742.” Id. at 599. In so ruling, we rejected the
defendant’s contention that section 1291 provides an indepen-
dent statutory basis for jurisdiction over the appeal. We rea-
soned that section 3742 evidenced Congress’ intent to restrict
sentencing appeals to the statutorily-created criteria delineated
in that section. Id. at 598-99, citing United States v.
Chavarria-Herrara, 15 F.3d 1033, 1035-36 (11th Cir. 1994).
Therefore, we held, section 1291 did not supply jurisdiction
over the appeal.
[3] Arishi does not preclude the exercise of section 1291
jurisdiction over the instant appeal. Section 3742 governs
only those appeals from sentences based on offenses commit-
ted after November 1, 1987. United States v. Byerley, 46 F.3d
694, 699 (7th Cir. 1995), citing Pub. L. No. 100-182, § 2, 101
Stat. 1266 (1987), overruled on other grounds by, United
States v. Clark, 538 F.3d 803 (7th Cir. 2008). In this case,
Montalvo’s sentence is based on offenses committed prior to
that date. Therefore, section 3742 does not dictate the terms
of this appeal. Rather, the general provision for appellate
jurisdiction provided in section 1291 applies. See United
States v. McAndrews, 12 F.3d 273, 276 (1st Cir. 1993) (stat-
ing that “[p]rior to the advent of guideline sentencing,” a
criminal defendant could invoke section 1291 in order to
appeal his sentence). As described above, our jurisdiction pur-
suant to that section is secure.
UNITED STATES v. MONTALVO 13465
III.
With respect to the merits of this appeal, Montalvo argues
that the district court erred in ruling that Rule 35(a) does not
provide an appropriate vehicle for correcting the alleged
errors in his sentence. We review a district court’s interpreta-
tion of the Federal Rules of Criminal Procedure de novo.
United States v. Navarro Viayra, 365 F.3d 790, 793 (9th Cir.
2004). The parties agree that the version of Rule 35 in effect
before November 1, 1987, the effective date of the Sentencing
Reform Act, applies to this case. Thus, our analysis of Mon-
talvo’s Rule 35 motion will rely on that prior version of the
rule.
A.
[4] Rule 35(a) provides that “[t]he court may correct an
illegal sentence at any time . . . .” Fed. R. Crim. P. 35(a)
(1987). In Hill v. United States, the Supreme Court held that
Rule 35 performs the “narrow function” of correcting an “ille-
gal sentence,” and is not meant to permit the “re-examin[ation
of] errors occurring at the trial or other proceedings prior to
the imposition of sentence.” 368 U.S. 424, 430 (1962); see
also Heflin, 358 U.S. at 418 (holding that the “only question”
on a Rule 35(a) motion is “whether the sentence imposed was
illegal on its face” (emphasis added)). The Court explained
that a sentence is not “illegal” pursuant to the rule where
“[t]he punishment meted out was not in excess of that pre-
scribed by the relevant statutes, multiple terms were not
imposed for the same offense, nor were the terms of the sen-
tence itself legally or constitutionally invalid in any other
respect.” Hill, 368 U.S. at 430.
In United States v. Fowler, we clarified the scope of Rule
35(a) as a mechanism for correcting a given sentence. 794
F.2d 1446, 1449 (9th Cir. 1986). As part of the defendant’s
sentence for willfully filing false income tax returns, the dis-
trict court ordered the defendant to pay costs pursuant to 26
13466 UNITED STATES v. MONTALVO
U.S.C. § 7206 in the full amount claimed by the government.
Id. at 1448. Rather than appealing his sentence, the defendant
filed a petition in district court, which the district court con-
strued as a section 2255 petition. Id. The petition argued that
(1) interpreting section 7206 as mandating the imposition of
costs “causes an unconstitutional ‘burden’ on the right to
cross-examination, jury trial, and compulsory process,” and
(2) even if section 7206 mandates the assessment of costs, the
district court was not authorized to impose all of the costs of
prosecution on the petitioner because he was acquitted on one
count of the indictment. Id. at 1449.
On appeal, we held that “[w]e need not address whether
Fowler’s claims are cognizable under section 2255, because
we may treat his petition as a motion to correct an ‘illegal’
sentence under [Rule] 35.” Id. at 1148, citing Brooks v.
United States, 457 F.2d 970, 971 n.1 (9th Cir. 1972). In so
ruling, we interpreted the term “illegal sentence” under Rule
35(a) to include “a sentence which is not authorized by the
judgment of conviction, or in excess of the permissible statu-
tory penalty for the crime, or in violation of the
[C]onstitution.” Id. at 1449 (internal citations and quotation
marks omitted). We held that “[b]ecause Fowler attacks the
‘legality’ of the sentence, we may treat his section 2255 peti-
tion as a motion under Rule 35.” Id.
By contrast, in United States v. Johnson, we held that the
defendant’s challenges to his sentence were not cognizable
under Rule 35(a). 988 F.2d 941, 943 (9th Cir. 1993). In John-
son, the defendant was convicted and sentenced on a charge
of being a felon in possession of a firearm in violation of 18
U.S.C. § 1202(a), repealed by Pub. L. 99-308, § 104(b), 100
Stat. 459 (May 19, 1986). Id. at 943. He sought relief from his
sentence via a Rule 35(a) motion, arguing that he was “ex-
cluded from the class of felons otherwise prohibited from pos-
sessing firearms” by section 1202(a). Id. at 944. We held that
his motion was improper because “[h]is pleadings . . . do not
contend his sentence is unauthorized by the judgment of con-
UNITED STATES v. MONTALVO 13467
viction, exceeds the permissible statutory penalty of his crime,
or violates his constitutional rights.” Id., citing Fowler, 794
F.2d at 1449.
B.
In this case, Montalvo launches several challenges to his
sentence.
1.
Montalvo first argues that, by sentencing him to a manda-
tory life term under section 848(b), the district court “ex-
ceeded its jurisdiction [and] imposed a sentence on Montalvo
for an offense for which he had never been indicted.” He
argues that section 848 “actually sets forth two offenses” —
“[s]ubsection (a) sets forth a penalty of 10 years to life for a
first conviction and a penalty of 20 years to life for a second
or subsequent conviction”; subsection (b) sets forth what
“could properly [be] characterized as an ‘aggravated’ continu-
ing criminal enterprise,” carrying a mandatory life term, and
requiring additional “elements” to be proven. Montalvo
argues that his “illegal mandatory life sentence must be cor-
rected to a term authorized by the facts reflected in the basic
verdict for a continuing criminal enterprise.”
[5] It appears that Montalvo argues that he was convicted
of a “basic” continuing criminal enterprise pursuant to section
848(a), but sentenced for an “aggravated” continuing criminal
enterprise pursuant to section 848(b). So construed, this argu-
ment is cognizable under Rule 35(a). Fowler, 794 F.2d at
1449 (holding that Rule 35(a) can be used to challenge sen-
tences that are “not authorized by the judgment of convic-
tion”).
[6] However, Montalvo’s challenge fails on the merits.
Even assuming that Montalvo’s construction of section 848 as
setting forth two distinct offenses is correct, both 848(a) and
13468 UNITED STATES v. MONTALVO
848(b) authorize a sentence of life imprisonment, which is
precisely what Montalvo received. Contrary to Montalvo’s
contention, there is no material difference between the “dis-
cretionary” life term authorized by section 848(a), and the
“mandatory” life term authorized by section 848(b). As we
held in a previous appeal of Montalvo’s sentence, “[t]he life
sentence without the possibility of parole that Montalvo
received at resentencing was the same sentence he received at
his earlier sentencing.” Montalvo III, 1996 WL 2205, at *2.
2.
Montalvo next argues that his sentence is the product of
“unconstitutional structural error because the sentencing judge
alone . . . found defendant was guilty of the hypothetical felo-
nies for the [section] 848(b) mandatory life sentence without
indictment counts or jury trial and verdicts for the alleged fel-
onies.” Thus, he argues that his sentence represents a “di-
rected verdict for the prosecution during sentencing” on those
“hypothetical felonies,” resulting in a “denial of [his] right to
[a] jury trial” under the Constitution.
[7] This claim cannot be properly heard as a Rule 35(a)
motion. Although Rule 35(a) is available to correct sentences
that are “in violation of the Constitution,” Johnson, 988 F.2d
at 943, the constitutional infirmity must be apparent in the
“terms of the sentence itself,” Hill, 368 U.S. at 430. Thus, in
Fowler we construed a section 2255 petition as raising a valid
Rule 35(a) challenge where the petitioner argued that the
terms of the sentence, which imposed on him the costs of
prosecution, caused an “unconstitutional ‘burden’ on the right
to cross-examination, jury trial, and compulsory process.” 794
F.2d at 1449.
This distinction between the illegality of the terms of a sen-
tence as opposed to the illegality of the process by which it
was imposed makes sense given the text of the rule. Rule
35(a) distinguishes between an “illegal sentence” and a “sen-
UNITED STATES v. MONTALVO 13469
tence imposed in an illegal manner.” Fed. R. Crim. P. 35(a)
(1987). The rule allows the court to correct an “illegal sen-
tence” at any time, but only allows the court to correct a sen-
tence “imposed in an illegal manner” if a Rule 35(a) motion
is made within specific time limits pronounced in the rule. See
Fed. R. Crim. P. 35(b). If the term “illegal sentence” included
sentences that were the product of errors, constitutional or
otherwise, committed in the process of sentencing, there
would be no need for the “illegal manner” language in Rule
35(a). See United States v. Novak, 476 F.3d 1041, 1048 (9th
Cir. 2007) (stating that courts should “avoid whenever possi-
ble statutory interpretations that result in superfluous lan-
guage”); see also United States v. Stevens, 548 F.2d 1360,
1362 n.8 (9th Cir. 1977) (recounting that the “illegal manner”
language was added to Rule 35 to “change the result in [Hill,
368 U.S. at 430] where the then Rule 35 was held to be inap-
plicable to correct a sentence imposed without granting the
defendant the right of allocution”).
[8] In this case, Montalvo does not allege that terms of his
sentence are unconstitutional. Instead, he faults the district
court for allegedly “direct[ing] a verdict for the prosecution”
on felonies never charged in the indictment or submitted to
the jury, and then sentencing him on those uncharged felo-
nies. But these arguments challenge the process by which the
sentence was imposed, not the terms of the sentence. Indeed,
Montalvo does not dispute that a mandatory life sentence is
authorized where a defendant is properly found to have satis-
fied the criteria set forth in section 848(b). Rather, he argues
that that finding must be made by a jury, not by a judge. Mon-
talvo cannot raise such a process-based challenge in a Rule
35(a) motion. Any motion challenging his sentence because it
was “imposed in an illegal manner” would have to have been
brought within 120 days of his resentencing in 1994, and
Montalvo did not do so. See Fed. R. Crim. P. 35(a), (b)
(1987).
13470 UNITED STATES v. MONTALVO
3.
[9] Finally, Montalvo argues that his sentence was uncon-
stitutional because the district court “determined the end-dates
of the conspiracy, and all the alleged drug offenses and
money offenses the defendant supposedly committed, without
a jury determination of those dates and felonies.” Citing
Blakely v. Washington, 542 U.S. 296 (2004), he argues that “it
is unconstitutional for a judge alone, not the jury, to make fac-
tual determinations that elevate the crime of conviction to a
greater offense.” Again, however, Montalvo’s claim here
challenges the constitutionality of the manner in which his
sentence was imposed — he argues that the district court
erred in finding facts relevant to the sentence without submit-
ting those facts to the jury. As described above, this challenge
is not cognizable under Rule 35(a) because it was not brought
within 120 days after the sentence was imposed in 1994. See
Fed. R. Crim. P. 35(a), (b) (1987).
IV.
For the reasons set forth above, we hold that we have juris-
diction over this appeal, and we conclude that Montalvo can-
not proceed with his Rule 35(a) motion to correct his
sentence. Montalvo has had multiple opportunities to raise
and argue these challenges to his sentence in the decades
since his conviction. He cannot now use Rule 35 to pursue yet
another. Accordingly, we affirm the district court’s order of
dismissal.
AFFIRMED.