USA v. Montalvo et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v. 	DECISION AND ORDER
11-CR-366-A
MISAEL MONTALVO,
Defendant.
This case is before the Court to determine the offense level under the Sentencing
Guidelines that applies to defendant Misael Montalvo’s conviction upon his guilty plea to
conspiracy to distribute five or more kilograms of cocaine in violation of 18 U.S.C. § 846.
The Court held a Fatico1 hearing concerning whether defendant Montalvo was involved
in the murders of two alleged former co-conspirators during an armed burglary and rob-
bery, and whether the murders constitute relevant conduct in relation to the defendant’s
drug conspiracy offense of conviction.
The United States argues that evidence introduced during the Fatico hearing es-
tablishes that defendant Montalvo planned, aided and abetted the armed burglary and
robbery during which the murders of his former co-conspirators occurred, and it con-
cludes that his Guidelines offense level must account for the murders even though he
did not personally commit them. It relies upon a Guidelines cross-reference at § 2D1.1
that applies to drug trafficking offenses when a victim is murdered that requires the
Court to use the offense level for murder at § 2A1.1 when imposing sentence upon a
1 United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979).
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defendant if it results in a higher offense level. U.S.S.G. § 2D1.1(d)(1). If the United
States is correct that the murder cross-reference applies in this case, the defendant’s
adjusted offense level will be 40 and it appears that he faces an advisory range of im-
prisonment of 292 to 365 months.
Defendant Montalvo denies any role in the armed burglary and robbery or the
murders. He presented alibi evidence during the Fatico hearing to dispute that he had a
role in the burglary and robbery, let alone the resulting murders. If the defendant is cor-
rect, it appears his offense level will be 29 and that he faces the mandatory-minimum
term of imprisonment for his drug conspiracy offense of conviction of 120 months and a
maximum term of life imprisonment.
For the reasons stated below, the Court concludes that the Guidelines
§ 2D1.1(d)(1) cross-reference to the murder Guideline at § 2A1.1 does not apply in this
case. In summary, a murder must be “relevant conduct” to a drug trafficking offense of
conviction under Guideline § 1B1.3 for the murder cross-reference to apply. See e.g.,
United States v. Taylor, 813 F.3d 1139, 1150 (8th Cir. 2016). Here, because the Court
finds that the United States has not established by a preponderance of the evidence
that the murders occurred during, in preparation for, or in attempting to avoid responsi-
bility for defendant Montalvo’s drug conspiracy offense of conviction, see U.S.S.G. §
1B1.3(a), the murders do not constitute relevant conduct with respect to the offense of
conviction.
Nevertheless, the Court finds by a preponderance of the specific evidence before
it that defendant Montalvo planned, aided and abetted the armed burglary and robbery
during which the murders occurred and that an upward departure or variance to reflect
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his role in the murders of his former co-conspirators is warranted. The defendant faces
charges of two counts of aiding and abetting discharge of a firearm causing death in vio-
lation of 18 U.S.C. § 924(c) based upon the murders, and both counts are to be dis-
missed as part of the defendant’s plea agreement. Sentencing Guidelines § 5K2.21 ex-
plicitly authorizes an upward departure when conduct that underlies counts to be dis-
missed is not otherwise considered in determining an advisory sentencing range. The
Court therefore finds that Guidelines § 5K2.21 applies, and the parties are directed be-
low to address in writing the method the Court should use to determine the extent of a
§ 5K2.21 upward departure or whether a variance based on the dismissed conduct is
more appropriate.
BACKGROUND
Defendant Montalvo pled guilty to one count of a Superseding Indictment that
charges him with conspiracy to possess with intent to distribute, and to distribute, five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and
841(b)(1)(A). The defendant admitted in his plea agreement and during his guilty plea
colloquy that:
[f]rom approximately 2000 through 2004, [he] resided in the Buffalo area
and sold cocaine, with others, in the Buffalo area. From approximately 2004
through November 19, 2011, the defendant periodically traveled from New
York City, with co-defendant Carmen M. Justiniano Ramirez, to distribute
cocaine to customers in the Buffalo area.
Dkt. No. 248, para. 4.a. The defendant admitted that approximately 15 to 50 kilograms
of cocaine is the total relevant drug quantity involved in his offense of conviction.
Defendant Montalvo’s plea agreement and colloquy further reflect the parties’
agreement that “[o]n November 11, 2004, Nelson Comacho and Miguel Camacho were
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shot and killed inside their residence at 879 Niagara Street, Buffalo, New York.” 	Dkt.
No. 248, para. 4.c. The parties’ factual agreements end there.
The United States maintains in the plea agreement that the murders of Nelson
and Miguel Comacho are properly to be considered relevant conduct to defendant Mon-
talvo’s drug conspiracy offense of conviction. It maintains that the Guidelines §
2D1.1(d)(1) cross-reference to the murder Guideline at § 2A1.1 therefore applies and
the defendant’s base offense level is 43.
Defendant Montalvo, on the other hand, disputes that he participated in the
armed burglary and robbery during which the murders were committed. He maintains
that his base offense level, taking account of the total relevant drug quantity for his of-
fense of conviction, is properly calculated at level 32.
Although the parties have not focused on it, the Superseding Indictment also
charges defendant Montalvo and two co-defendants, Efrain Hidalgo and Brandon Jo-
nas, with two counts of discharge of a firearm during and in relation to a crime of vio-
lence or a drug-trafficking crime causing death in violation of 18 U.S.C. §§
924(c)(1)(A)(iii), 924(j)(1) and 2. One of these counts is based upon the murder of Nel-
son Comacho, the other upon the murder of Miguel Comacho. Nelson and Miguel Co-
macho, who were brothers, were the victims who were shot to death during a November
11, 2004 armed burglary and robbery at their apartment at 879 Niagara Street, lower, in
Buffalo.
While the Superseding Indictment also alleges that the two counts of discharge
of a firearm causing death justify imposition of the death penalty upon defendant Mon-
talvo and his co-defendants, Dkt. Nos. 68, pp. 4-5, the United States decided not to
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seek the death penalty well before the defendant entered into his plea agreement. Dkt.
No. 95. 	And the plea agreement provides the two death-eligible counts will be dis-
missed as against the defendant when sentence is imposed upon him for the drug con-
spiracy count. Dkt. No. 248, para. 14.
To resolve the factual issues underlying the parties’ dispute whether the drug
Guidelines murder-cross reference applies to defendant Montalvo’s offense of convic-
tion, the Court held the Fatico hearing. See U.S.S.G. § 6A1.3 	The hearing took place
over three days, during which the Court heard from nine witnesses and received numer-
ous items of evidence.
DISCUSSION
A correct calculation of the Sentencing Guidelines adjusted offense level and
criminal history category together result in an applicable Sentencing Guidelines range of
imprisonment derived from the Sentencing Table, U.S.S.G. ch. 5, Pt. A, which becomes
“the starting point and initial benchmark” before imposition of a sentence. Gall v. United
States, 552 U.S. 38, 49 (2007). By using this range of imprisonment as the starting
point and benchmark when imposing sentence, federal courts avoid unwarranted sen-
tencing disparities through nationwide consistency. Id.
A court may not presume that a correctly calculated Guidelines range of impris-
onment will result in a reasonable sentence in a particular case, Gall, 552 U.S. at 50,
and must “consider the widest possible breadth of information about a defendant [to] en-
sure[] that the punishment will suit not merely the offense but the individual defendant”
as well. Pepper v. United States, 562 U.S. 476, 488 (2011) (quotation omitted). To that
end, 18 U.S.C. § 3661 provides that “[n]o limitations shall be placed on the information
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concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purpose of impos-
ing an appropriate sentence.”
Reflecting some of this breadth of information, Guidelines base offense levels
and offense level adjustments routinely set the initial benchmark range of imprisonment
based upon what a defendant actually did, and not simply based upon what the defend-
ant has been adjudged guilty of doing. See e.g., United States v. Watts, 519 U.S. 148,
151-57 (1997) (offense-level calculations can include conduct underlying offenses of
which a defendant is acquitted); United States v. Cordoba-Murgas, 233 F.3d 704 (2d
Cir. 2000) (offense level calculation for drug conspiracy required consideration of
§ 2D1.1(d)(1) cross-reference to § 2A1.1 murder offense level). In this way, the Guide-
lines reflect a studied compromise between a charge-offense system of sentencing that
is based exclusively on charged and proven conduct and a real-offense system that al-
lows sentencing based upon uncharged conduct that a judge concludes warrants pun-
ishment. U.S.S.G. ch. 1, pt. A, § 4(a).
Under the Sentencing Guidelines, a principal concept to determine whether con-
duct is to be included in a Guidelines offense level calculation is whether the conduct
qualifies as “relevant conduct.” Under Guidelines § 1B1.3(a), “relevant conduct,” at
least as is pertinent here, includes:
(1)(A) all acts and omissions committed, aided, abetted, counseled, com-
manded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert
with others, whether or not charged as a conspiracy), all acts and omissions
of others that were —
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(i) 	within the scope of the jointly undertaken criminal activity,
(ii) 	in furtherance of that criminal activity, and
(iii) 	reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in prepa-
ration for that offense, or in the course of attempting to avoid detection or
responsibility for that offense;
* * *
(3) all harm that resulted from the acts and omissions specified in subsec-
tions (a)(1) and (a)(2) above, and all harm that was the object of such acts
and omissions; . . . .
Id. (ellipsis added). Generally, “to qualify as ‘relevant conduct,’ the conduct must occur
in the course of commission of the offense of conviction.” United States v. Wernick,
691 F.3d 108, 115 (2d Cir. 2012).
When a factual dispute over relevant conduct exists, the disputed conduct must
be proved by a preponderance of the evidence before it can be considered relevant
conduct under the Guidelines. See Witte v. United States, 515 U.S. 389, 401 (1995);
Cordoba-Murgas, 233 F.3d at 708-10. The Federal Rules of Evidence do not apply at
sentencing. Fed. R. Evid. 1101(d)(3). A court can consider hearsay evidence, if it is
reasonably reliable, see United States v, Martinez, 413 F3d 239, 243-44 (2d Cir. 2005),
and can rely upon testimony from related proceedings, provided the defendant has a
meaningful opportunity to respond. United States v. Concepcion, 983 F.3d 369, 387-88
(2d Cir. 1992). Where such disputed conduct is not part of convicted conduct, such as
where conduct underlying charges that are to be dismissed as part of a plea agreement
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is involved, the conduct must be proved by specific evidence that meets the preponder-
ance of the evidence standard. See e.g., United States v. Archer, 671 F.3d 149, 165
(2d Cir. 2011).
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
I. The Defendant Aided and Abetted Felony Murders. Specific evidence be-
fore the Court establishes that, although defendant Montalvo did not plan for his co-de-
fendant Brandon Jonas to kill the defendant’s former co-conspirators Nelson and Miguel
Comacho, the defendant did aid and abet the armed burglary and robbery during which
Jonas intentionally shot and killed the victims. First degree murder is defined in 18
U.S.C. § 1111(a) as:
Murder is the unlawful killing of a human being with malice aforethought.
Every murder perpetrated by poison, lying in wait, or any other kind of willful,
deliberate, malicious, and premeditated killing; or committed in the perpe-
tration of, or attempt to perpetrate, any arson, escape, murder, kidnapping,
treason, espionage, sabotage, aggravated sexual abuse or sexual abuse,
child abuse, burglary, or robbery; or perpetrated as part of a pattern or prac-
tice of assault or torture against a child or children; or perpetrated from a
premeditated design unlawfully and maliciously to effect the death of any
human being other than him who is killed, is murder in the first degree.
Killings during and as a consequence of a knowing and willful burglary and robbery are
felony murders under § 1111(a). See e.g., United States v. Thomas, 34 F.3d 44, 48 (2d
Cir. 1994).
Here, the Court finds that defendant Montalvo orchestrated the armed burglary
and robbery during which the murders of the Comachos occurred. He selected the lo-
cation of the armed burglary and robbery at the apartment at 879 Niagara Street, lower,
because he knew the victims lived there and he was targeting the victims’ property. He
recruited Jonas, Hildalgo, and a juvenile, by relying on the assistance of others who
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knew them. He met with them at the Ortiz family’s residence at 482 7th Street, where
he briefed the others and led most of the planning. He described the interior of the vic-
tims’ two-bedroom apartment. He told them what to expect, including where to look for
money, and that he thought no guns would be present.
The evening of November 11, 2004, while defendant Montalvo led planning
among his co-defendants of the armed burglary and robbery in the Ortiz’s kitchen at 482
7th Street, Jonas wiped off bullets from an AK-47 rifle that he was to carry during the
burglary and robbery and then re-loaded the bullets into the clip for the rifle. Shortly
thereafter, the defendant drove Jonas, Hildalgo, and the juvenile, with the loaded AK-47
rifle and an aluminum baseball bat, to the vicinity of the victims’ apartment in his yellow
automobile and dropped them off expecting them to use the AK-47 and baseball bat to
commit the burglary and robbery. He did not accompany them further and drove away
from the scene.
After Hildalgo smashed in the door to the victims’ apartment with his shoulder
sometime after 9:00 p.m., Jonas ran inside and immediately shot Nelson Comacho in
the arm with the AK-47, nearly blowing the victim’s arm off. Nelson Comacho asked for
help. Hildalgo approached Nelson Comacho on the floor, asked him where the money
was, and poked him with the aluminum bat to try to force an answer. When Nelson Co-
macho did not answer, Hildalgo pulled a gold necklace from Comacho’s neck and went
to search for the money.2
After Hildalgo and the juvenile did not immediately find money in a front bed-
room, where the defendant led them to believe money might be hidden, Hildalgo broke
2 The parties sometimes refer to the robbery as an attempt, but Hildalgo pulled the gold neck-
lace from Nelson Comacho’s neck with intent to take it.
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open the door to rear bedroom, only to frantically retreat to the front of the apartment
when Miguel Comacho aimed a gun at him. Jonas interceded, shooting Miguel Co-
macho repeatedly with the AK-47, killing him. With police expected to arrive because of
the initial gunfire, and as Hildalgo and the juvenile ran — not having searched the rear
bedroom —- Jonas stood over the already gravely injured Nelson Comacho and shot
him through the head, killing him, before running away with the others. No money or
drugs were stolen from the Comachos or their apartment during the armed burglary and
robbery.
As Hildalgo, Jonas, and the juvenile made their way back to the Ortiz’s at 487 7th
Street, they hid the AK-47 is some bushes and tried to avoid police. Once safely inside,
they gave their clothing, some of which was bloody, to Mrs. Sonya Ortiz, who stuffed it
in a bag and gave them other clothes to wear. The bag was then hidden in a hole in the
wall of their basement by Sammy Ortiz, Jr.
When defendant Montalvo and Sammy Ortiz, Sr., returned to the Ortiz’s after the
bloody clothes were hidden, Hildalgo and Jonas confronted the defendant and accused
him of using them. Jonas told the defendant he would kill him, and that the defendant
had to leave town because there was nothing in the apartment to steal and two people
were now dead. About five days later, the defendant sold his yellow Toyota Tercel and
unexpectedly moved to New York City.
Although defendant Montalvo did not deliberately plan for Jonas to commit the
murders, the murders were a consequence of the defendant’s knowing and willful con-
duct to aid and abet the armed burglary and robbery during which the murders were
committed. The Court therefore concludes by a preponderance of the credible specific
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evidence that the defendant committed felony murders under § 1111(a) as an aider and
abettor.
Defendant Montalvo disputed his role in the armed burglary and robbery, and
thus the murders, during the Fatico hearing by introducing an alibi and by stressing in-
consistencies and gaps in the testimony of the United States’ witnesses against him.
He relied primarily on testimony of witnesses who testified that he spent almost the
whole evening of November 11, 2004, at 571 Niagara Street in Buffalo with his girl-
friend, Carmen M. Justiniano Ramirez, and her father, Segundo Justiniano, watching
wrestling on television. If that were true, he could not have led the planning of the
armed burglary and robbery that occurred at the Ortiz’s, and he could not have driven
Hildalgo, Jonas, and the juvenile from the Ortiz’s to the vicinity of the Comachos’ resi-
dence and dropped them off to commit the burglary and robbery. If that were true, he
would not have later stated to his girlfriend words to the effect that he “took them there,
dropped them off, and left,” referring to his having dropped off Hildalgo, Jonas, and the
juvenile in the vicinity of the victims’ apartment on the night of the murders.
Although defendant Montalvo is correct that the United States’ evidence of the
defendant’s role in the armed burglary and robbery is not totally consistent, the Court
finds that the evidence firmly establishes that the defendant orchestrated the armed bur-
glary and robbery, and that he dropped off his co-defendants and the juvenile near the
Comachos’ apartment, specifically intending that they would use the AK-47 and the
baseball bat to commit the burglary and robbery. Although the Court finds it likely that
the defendant spent some time at 579 Niagara Street during the evening of the mur-
ders, the alibi witnesses’ testimony that he was there nearly the entire evening there is
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not believable, especially in view of the strong credible evidence of what the defendant
did to aid and abet the armed burglary and robbery that evening.
II. The Murders are not Relevant Conduct to the Offense of Conviction.
Defendant Montalvo’s drug conspiracy offense of conviction involved conduct in
two distinct time frames. During a period from in or before 2000 through late 2004, the
defendant lived in Buffalo and sold cocaine in Buffalo with Nelson and Miguel Comacho,
who were close childhood friends, and others. After the defendant moved to New York
City in late 2004 within days after his involvement in the Comachos’ murders, the de-
fendant periodically traveled to Buffalo with cocaine that he sold to customers in the
Buffalo area.
During most of approximately four-year earlier phase of the conspiracy, when de-
fendant Montalvo lived in Buffalo, the defendant met approximately weekly with Nelson
and Miguel Comacho and their older brother about their combined cocaine trafficking, in
private, in the rear bedroom of the Comachos’ apartment at 879 Niagara Street, lower,
where the felony murders later occurred. The defendant and the Comachos had been
close friends since childhood.
Nelson Comacho’s teenaged girlfriend lived in the apartment with Nelson and Mi-
guel during this time period. She was strictly kept out of the private discussions con-
cerning cocaine trafficking that took place in the rear bedroom, but she nevertheless
saw bags of cocaine and overheard conversations about cocaine in the apartment.
In or about early 2003, Nelson Comacho’s girlfriend pressed her ear to the rear
bedroom door behind which defendant Montalvo, Nelson and Miguel Comacho were
meeting privately, and she overheard the three co-conspirators talking about 10 pounds
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of cocaine. That amount is consistent with other evidence of the drug quantity involved
in the drug conspiracy offense of conviction. No evidence from this approximate four-
year time period indicates whether the co-conspirators shared sources of supply,
shared customers, or establishes nature of the co-conspirators’ relationships with each
other within their drug trafficking conspiracy, however.
No evidence before the Court specifically shows how the felony murders in No-
vember of 2004 arose out this earlier four-year phase of defendant Montalvo’s drug con-
spiracy offense of conviction, in which the Comachos participated. There is evidence
before the Court that the defendant told Hildalgo, Jonas and the juvenile that there
would be five kilograms of cocaine in the apartment to steal as well as $10,000, but Hil-
dalgo, for example, testified they were told only about money. There was no evidence
the planned theft was to satisfy a drug-debt that arose out of the Comachos’ participa-
tion in the defendant’s offense of conviction, or otherwise involved a dispute arising out
of that drug trafficking conspiracy. There was no evidence that the defendant and the
Comachos had previously possessed cocaine for distribution they had obtained by vio-
lence or threat of violence.
In late 2003, defendant Montalvo tried to force himself on Nelson Comacho’s
young girlfriend as he was driving her home from a visit with the defendant’s girlfriend.
Nelson Comacho’s girlfriend was approximately 16 years of age at the time, and the de-
fendant pulled his car over, tried to kiss her, and grabbed forcibly at her shirt. The
young woman resisted and screamed at him to stop. She was able to break away and
get out of the car and run to the apartment at 879 Niagara Street, lower.
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The young woman was upset but was also very frightened about what Nelson
Comacho might do to defendant Montalvo if he found out the defendant had sexual as-
saulted her. A short time later, on New Year’s Eve 2003, Nelson Comacho and his fam-
ily did find out what the defendant had done, and had tried to do, to the young woman.
The whole family was extremely angry about what they learned the defendant had
done. The young woman heard them screaming at the defendant over the telephone,
and the defendant was never allowed in their company again. He no longer participated
with them in cocaine trafficking, let alone in the weekly private meetings concerning co-
caine trafficking in the rear bedroom of the lower apartment at 879 Niagara Street. The
co-conspirators falling out coincided with the end of the earlier timeframe of the defend-
ant’s conspiracy offense of conviction.
Defendant Montalvo and Nelson Comacho had a fist fight at a barber shop a few
months after the sexual assault. And they may have had a further falling out just three
weeks before the murders on November 11, 2004. In any event, the defendant admit-
ted to a law enforcement officer years later that he had a falling out with Nelson Co-
macho after, as he put it, he “made a pass” at Comacho’s girlfriend, and the defendant
admitted being threatened and blamed by people for the brothers’ murders.
During the later phase of defendant Montalvo’s drug conspiracy after the mur-
ders, the defendant lived in New York City and would periodically travel to Buffalo to
supply cocaine to customers in the Buffalo area. He had a source of supply in the New
York City area, and there is no evidence before the Court that he sold cocaine any-
where other than Buffalo.
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As stated above, a murder must be “relevant conduct” to a drug trafficking of-
fense of conviction under Guideline § 1B1.3 for the cross-reference at Guidelines
§ 2D1.1(d)(1) to apply and a potentially higher murder offense level at Guideline
§ 2A1.1 to be used. See e.g., United States v. Taylor, 813 F.3d 1139, 1150 (8th Cir.
2016). A murder is not relevant conduct to a drug conspiracy under the Guidelines
merely because the murder was within the time frame of the conspiracy. United States
v. Wernick, 691 F.3d 108, 115 (2d Cir. 2012). Ordinarily, the murder must occur “during
the commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1)(A). The Second Circuit has stated that:
The phrase “occurred during the commission of the offense of conviction [in
§ 1B1.3(a)(1)] is not defined in the Guidelines, nor does the commentary
provide any guidance. 	The words “relevant conduct” suggest more is re-
quired than mere temporal proximity, as the other conduct must be “rele-
vant” and it must occur “during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting to avoid detec-
tion or responsibility for the offense.
United States v. Ahders, 622 F.3d 115, 122 (2d Cir. 2010).
The motives for the November 11, 2004 armed burglary and robbery at the lower
apartment of 789 Niagara Street during which defendant Montalvo’s felony murders of
Nelson and Miguel Comacho occurred are not clear. But the felony murders were not
shown by a preponderance of specific evidence to arise in the course of commission of
the defendant’s drug conspiracy offense of conviction or in attempting to avoid responsi-
bility for that offense.
The felony murders do not appear to have arisen from any particular cocaine
transaction or series of transactions. The murders occurred 11 months after defendant
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Montalvo and the victims ceased participating in one another’s cocaine trafficking be-
cause of the defendant’s sexual assault of Nelson Comacho’s 16-year-old girlfriend.
Hildalgo and the juvenile expected to steal money from the victims’ apartment on
behalf of the defendant. Hildalgo’s unimpeached testimony was that he was led to be-
lieve that the apartment contained $100,000 of lottery winnings in cash. The juvenile
testified he was instructed to look for five kilograms of cocaine. He testified that defend-
ant Montalvo said that there would be five kilograms of cocaine and $10,000 cash in the
apartment as the defendant drove them to the vicinity of the victims’ apartment. An-
other witness testified Nelson Comacho owed the defendant money, but did not testify
what the debt was for, and others testified the defendant never had a dispute over drugs
with Nelson Comacho and that Comacho did not owe the defendant money.
No cocaine or currency were stolen during the burglary and robbery. There is no
evidence the thefts were planned specifically to settle a debt or other obligation that
arose out of the victims’ participation in defendant Montalvo’s offense of conviction. No
evidence shows that the money that was targeted for theft was to be used to fund co-
caine distribution during the defendant’s on-going conspiracy. The conflicting evidence
that five kilograms of cocaine were targeted for theft was insufficient to establish that
purpose for the armed burglary and robbery. No significant amount of drugs or currency
were recovered by police at the murder scene.
No evidence suggests that defendant Montalvo supplied cocaine to former co-
caine customers of the Comachos after they were murdered. No specific evidence sug-
gests the burglary and robbery were precipitated by any lingering dispute among the de-
fendant and the Comachos over cocaine suppliers, customers or market territory. 	No
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evidence suggests the armed burglary and robbery, and the murders, were intended to
send a message to others about the defendant’s drug trafficking activities.
Given that defendant Montalvo had been involved in a cocaine trafficking con-
spiracy with the murder victims for a period of years, it is plausible that he would believe
that he could determine when the victims had a quantity of cocaine in their apartment
that he might choose to take. Given that he had a serious and emotional falling out with
the victims 11 months earlier over his mistreatment of Nelson Comacho’s teenaged girl-
friend, he might have decided to try to steal cocaine from them to distribute through his
on-going cocaine conspiracy offense of conviction.
But it is also plausible that defendant Montalvo was planning to leave Buffalo for
New York at the time of the felony murders because of the problems caused by his sex-
ual assault of Nelson Comacho’s girlfriend, and that the armed burglary and robbery
were revenge for his having concluded that he was being forced to move away. In any
event, no specific evidence adequately supports the conclusion that the Comachos’
money or drugs were targeted for theft in the course of any part of commission of the
defendant’s drug conspiracy offense of conviction.
Because defendant Montalvo’s felony murders were not proved to have been
committed in the course of commission of the offense of conviction, they are not rele-
vant conduct to his drug conspiracy offense of conviction. Accordingly, the Guidelines
§ 2D1.1(d)(1) cross-reference to the murder Guideline at § 2A1.1 does not apply. See
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United States v. Taylor, 813 F.3d 1139, 1150 (8th Cir. 2016)3.
The United States argues that because it has established that defendant Mon-
talvo aided and abetted the felony murders, that aiding and abetting is sufficient to es-
tablish that the murders were relevant conduct triggering the murder cross-reference in
Guidelines § 2D1.1(d)(1). That argument confuses the issues. The determinative ques-
tion for relevant conduct purposes is not whether the defendant aided and abetted the
felony murders, it is whether the felony murders aided and abetted conduct that was
part of the defendant’s drug trafficking offense of conviction. See U.S.S.G.
§ 1B1.3(a)(1)(A). For the reasons stated above, there is insufficient evidence to con-
clude that they did.
Similarly, neither has the United States shown that the felony murders can be
deemed relevant conduct as part of the same course of conduct or a common plan or
scheme as defendant Montalvo’s drug conspiracy offense of conviction pursuant to
U.S.S.G. § 1B1.3(a)(1)(B). There is insufficient evidence to conclude that the conduct
of Hildalgo, Jonas, and the juvenile in relation to the felony murders was jointly under-
taken criminal activity with the defendant “that occurred during the commission of [his]
offense of conviction, in preparation for that offense, or in attempting to avoid detection
of responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1).
Finally, although the Court agrees with the United States that it has established
defendant Montalvo’s role in aiding and abetting the felony murders, the murders do not
3 The Second Circuit has not issued a published opinion that may be cited for the requirement
that only relevant conduct can trigger application of the murder cross-reference in § 2D1.1(d)(1),
but the Circuit has relied upon Taylor in at least two unpublished Summary Orders, United
States v. Plaza, 752 Fed. Appx. 37, 46 (2d Cir. 2018); United States v. Anderson, 689 Fed.
Appx. 53, 57 (2017), that either apply or note the requirement.
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qualify as relevant conduct under U.S.S.G. § 1B1.3(a)(3) as harm resulting from his acts
or omission unless it resulted from acts or omissions that that are properly deemed rele-
vant conduct under U.S.S.G. § 1B1.3(a)(1) or (a)(2). For the reasons the Court has
stated, the felony murders are not relevant conduct under either § 1B1.3(a)(1)(A) or
(a)(1)(B), and because the murders cannot be grouped with the drug trafficking offense
of conviction pursuant to Guidelines § 3D1.2(d) if regarded as multiple counts of convic-
tion, they are not relevant conduct to that offense. See e.g., United States v. Kim, 896
F.2d 678, 684 (2d Cir. 1990) (dictum). Accordingly, the murder cross-reference at
Guidelines § 2D1.1(d)(1) does not apply.
III. The Felony Murders Are a Basis for Upward Departure or Variance.
Defendant Montalvo’s plea agreement provides that two allegedly death-penalty
eligible counts of aiding and abetting discharge of a firearm causing death in violation of
18 U.S.C. § 924(c) that are based upon the felony murders of the Comachos are to be
dismissed as part of the plea. Dkt. No. 284, para. 14. And because the murder cross-
reference at 2D1.1(d)(1) does not apply, the felony murders do not enter into determina-
tion of his offense level and applicable Guidelines range. These circumstances do not
mean that his sentence should not reflect the conduct underlying the dismissed counts,
however.
Sentencing Guidelines § 5K2.21 provides that:
The court may depart upward to reflect the actual seriousness of the offense
based on conduct (1) underlying a charge dismissed as part of a plea agree-
ment in the case, or underlying a potential charge not pursued in the case
as part of a plea agreement or for any other reason; and (2) that did not
enter into the determination of the applicable guideline range.
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Id. While § 5K2.21 was effective November 1, 2000, Second Circuit case law that pre-
ceded the Guideline suggest that dismissed conduct must have some relationship with
the offense of conviction to permit an upward departure. For example, in United States
v. Tropiano, 50 F.3d 157 (2d Cir. 1995), the Circuit vacated a 5K2.0 upward departure
based upon evidence of uncharged cocaine dealing in a case involving stolen vehicles.
The Circuit found the departure was not supported by confused findings below that also
failed to include sufficiently detailed findings that the cocaine dealing related in some
way to the offense of conviction. 50 F.3d at 163-65.
In United States v. Kim, 896 F.2d 678 (2d Cir. 1990), another § 5K2.0 upward de-
parture case that preceded Tropiano, supra, and the effective date of § 5K2.21, the
Second Circuit held that for conduct to justify an upward departure, it must “relate in
some way to the offenses of conviction.” 896 F.2d at 684. The Circuit made clear that
temporal proximity alone is not enough of a relationship by observing that someone who
engaged in a barroom brawl during the course of a fraud conspiracy would not properly
be punished by an upward departure for the brawling when sentenced for the fraud.
See id. & n.4. It observed that:
the [United States Sentencing] Commission’s carefully explained compro-
mise between “charge offense” sentencing and “real offense” sentencing
would be undermined if a sentencing judge could make an upward depar-
ture for any act of misconduct, regardless of relationship to the offense of
conviction. That approach would be pure “real offense” sentencing, not
the “modified real offense” system the Commission adopted.
Id. at 863 (emphasis added). Although Second Circuit has not adopted this line of rea-
soning in a precedential decision under 5K2.21, the same reasoning generally applies in
the context of a departure based upon conduct underlying dismissed charges. By the
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same token, conduct underlying charges that are to be dismissed as part of a plea
agreement is not just “any act of misconduct.” Id.
Section 5K2.21 indicates that an upward departure for conduct underlying dis-
missed charges is appropriate “to reflect the actual seriousness of the offense,” id.
which seems to confirm the reasoning in Kim that the conduct must have some relation-
ship with the offense of conviction to justify the departure. In the Kim example, if the
barroom brawl does not reflect the seriousness of the fraud offense of conviction, no up-
ward departure should lie. Of course, if conduct underlying dismissed charges is re-
lated to an offense of conviction as “relevant conduct,” it is properly accounted for in the
Guidelines offense level and no departure would be necessary. In any event, the kind
or degree of relationship necessary to warrant such a 5K2.21 departure is not well-de-
fined.
Nevertheless, in this case, the Court finds that the felony murders were related to
the drug-trafficking offense of conviction. The murder victims were former co-conspira-
tors in defendant Montalvo’s drug conspiracy offense of conviction. They were also
childhood friends of the defendant’s, and during the earlier phase of his conspiracy of-
fense of conviction, he met with them privately about their conspiracy nearly every week
in the apartment where the victims were murdered. Evidence about the defendant’s in-
teractions with the victims during their participation in his drug trafficking offense of con-
viction explains how the defendant knew enough about the victims and their two-bed-
room apartment to persuade Hildalgo, Jonas, and to a lesser extent, the juvenile, that
he could be trusted when he orchestrated the armed burglary and robbery that resulted
in the murders.
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In addition, the testimony of essential cooperating witnesses against defendant
Montalvo during the Fatico hearing concerning the felony murders, and who would be
witnesses against him during a trial of the two counts of aiding and abetting discharge of
a firearm causing death that are to be dismissed pursuant to his plea agreement, over-
laps with evidence of his drug conspiracy offense of conviction. Some of those wit-
nesses’ credibility was enhanced because they testified convincingly about what they
had learned during their participation in his drug conspiracy. Although the evidence be-
fore the Court does not show that the armed burglary and robbery were relevant con-
duct in relation to the defendant’s offense of conviction, the felony murders were facili-
tated by the nature and extent of his offense conduct. And while the defendant did not
intend for Jonas to murder his former co-conspirators, the ruthlessness of his planned
armed burglary and robbery that resulted in their murder reflects of the nature of the co-
conspirator relationships with the victims sufficiently to reflect on the seriousness of his
drug conspiracy offense of conviction. Accordingly, the Court finds that an upward de-
parture or variance to account for the felony murders applies.
CONCLUSION
For the reasons stated above, the Court finds that the Guidelines § 2D1.1(d)(1)
cross-reference to the murder Guideline at § 2A1.1 does not apply in this case, but that
an upward departure pursuant to 5K2.21 or an upward variance to account for defend-
ant Misael Montalvo’s role in the felony murders of Nelson Comacho and Miguel Co-
macho is warranted. The Court will issue a Text Order requiring the parties to address
in their sentencing submissions how the Court should determine the extent of an up-
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ward departure, see United States v. Kim, 896 F2d. 678, 684-85 (2d Cir. 1990), or vari-
ance, to account for defendant Montalvo’s role in the felony murders and to address the
nature and extent of any other departures or variances that may apply.
IT IS SO ORDERED.
__s/Richard J. Arcara______________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: June 17, 2020
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