United States v. Jonathan Montanez ( 2022 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 21-1855
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Jonathan Montanez
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of North Dakota - Eastern
    ____________
    Submitted: January 10, 2022
    Filed: June 10, 2022
    ____________
    Before COLLOTON, KELLY, and KOBES, Circuit Judges.
    ____________
    KOBES, Circuit Judge.
    Jonathan Montanez pleaded guilty to civil disorder, 
    18 U.S.C. § 231
    (a)(3).
    The district court 1 sentenced him to 24 months in prison. Montanez appeals, arguing
    1
    The Honorable Peter D. Welte, Chief Judge, United States District Court for
    the District of North Dakota.
    that the court incorrectly calculated his Guidelines range by applying U.S.S.G.
    § 2A2.4(a), obstructing or impeding officers. We affirm.
    I.
    During the summer of 2020, Montanez joined in a Fargo, North Dakota protest
    against police brutality, organized in response to the murder of George Floyd.
    Montanez jumped on top of a marked Fargo Police Department car that had officers
    inside. He repeatedly slammed his fists into the hood and kicked the bumper, which
    caused damage. Montanez was later arrested.
    Montanez pleaded guilty to one count of civil disorder. The parties agreed
    that U.S.S.G. § 2B1.1(a)(2), which deals with property damage or destruction,
    applied. The Presentence Report, however, recommended applying the higher base
    level in U.S.S.G. § 2A2.4(a) for obstructing or impeding officers. Over objections
    from Montanez and the Government, the district court found by a preponderance of
    the evidence that § 2A2.4(a) was the most analogous guideline to Montanez’s
    conduct. This elevated his base offense level, which in turn increased his Guidelines
    range from 6–12 months to 18–24 months. The district court sentenced Montanez
    to 24 months, the high end of the advisory range. He appeals, arguing that
    § 2A2.4(a) is neither an analogous guideline, nor the most analogous guideline, to
    his offense conduct.
    II.
    The Sentencing Commission has not specified a base offense guideline for
    civil disorder offenses under 
    18 U.S.C. § 231
    (a)(3). Instead, it directs sentencing
    courts to follow the cross-reference provision in U.S.S.G. § 2X5.1, which says to
    “apply the most analogous offense guideline.” This is a two-step process; the district
    court first decides if there are sufficiently analogous guidelines by comparing the
    elements of the conviction offense to the elements of other offenses. United States
    v. Iceman, 
    821 F.3d 979
    , 982 (8th Cir. 2016). Second, if there are multiple
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    sufficiently analogous guidelines, the court makes a fact-bound inquiry to determine
    which guideline is most analogous to the defendant’s conduct. 
    Id.
     “We review de
    novo the court’s determination of whether there is a sufficiently analogous guideline,
    and, where there are several analogous guidelines, we give due deference to the
    court’s fact-bound selection of the most analogous guideline.” United States v.
    Allmon, 
    594 F.3d 981
    , 987 (8th Cir. 2010) (quotation omitted) (cleaned up).
    A.
    First, we must determine whether U.S.S.G. § 2A2.4(a) is a sufficiently
    analogous guideline. The civil disorder offense reads:
    Whoever commits or attempts to commit any act to obstruct, impede,
    or interfere with any fireman or law enforcement officer lawfully
    engaged in the lawful performance of his official duties incident to and
    during the commission of a civil disorder which in any way or degree
    obstructs, delays, or adversely affects commerce or the movement of
    any article or commodity in commerce or the conduct or performance
    of any federally protected function—Shall be fined under this title or
    imprisoned not more than five years, or both.
    
    18 U.S.C. § 231
    (a)(3) (emphasis added). The commentary to U.S.S.G. § 2A2.4(a)
    specifically references 
    18 U.S.C. §§ 111
    , 1501, 1502, and 3056(d). So, we compare
    the elements of those offenses to the elements of the civil disorder offense and decide
    whether they are sufficiently analogous to justify applying U.S.S.G. § 2A2.4(a) to
    civil disorder. Section 111(a)(1) states:
    Whoever—forcibly assaults, resists, opposes, impedes, intimidates, or
    interferes with any person [who is an officer or employee of the United
    States] while engaged in or on account of the performance of official
    duties . . . .
    -3-
    (emphasis added). The first paragraph of § 1501 says:
    Whoever knowingly and willfully obstructs, resists, or opposes any
    officer of the United States, or other person duly authorized, in serving,
    or attempting to serve or execute, any legal or judicial writ or process
    of any court of the United States, or United States magistrate judge . . . .
    (emphasis added). Section 1502 states:
    Whoever knowingly and willfully obstructs, resists, or opposes an
    extradition agent of the United States in the execution of his duties . . . .
    (emphasis added). Finally, § 3056(d) says:
    Whoever knowingly and willfully obstructs, resists, or interferes with
    a Federal law enforcement agent engaged in the performance of the
    protective functions authorized by this section . . . .
    (emphasis added).
    Each of the referenced statutes prohibits obstructing, impeding, or interfering
    with law enforcement officials performing official duties. And the civil disorder
    offense likewise criminalizes “any act to obstruct, impede, or interfere with any
    fireman or law enforcement officer” who is engaged in the lawful performance of
    his official duties during a civil disorder. 
    18 U.S.C. § 231
    (a)(3). We conclude that
    this shared prohibition on obstructing, impeding, or interfering with law enforcement
    establishes that § 2A2.4(a) is sufficiently analogous to 
    18 U.S.C. § 231
    (a)(3).
    B.
    However, the parties agree that U.S.S.G. § 2B1.1(a)(2) is also sufficiently
    analogous. So, the next step is to determine which guideline is “most analogous.”
    -4-
    Iceman, 821 F.3d at 982. To do that, we “look not merely to the definition of the
    offenses, but also to the actual conduct of the individual defendant.” United States
    v. Osborne, 
    164 F.3d 434
    , 439 (8th Cir. 1999). Montanez jumped on a police car,
    kicked the bumpers, and repeatedly slammed his fists into the hood. He damaged
    the car. Montanez admitted to his conduct at the change of plea hearing and admitted
    that it was an “act to obstruct, impede, and interfere with a law enforcement officer
    lawfully engaged in the lawful performance of his official duties.” The district court
    found by a preponderance of the evidence that § 2A2.4(a) was most analogous to his
    offense conduct, a decision we give “due deference.” Allmon, 
    594 F.3d at 987
    .
    Giving due deference, we hold that the district court did not err by concluding
    that § 2A2.4(a) was the most analogous guideline. Where § 2A2.4(a) applies to
    “Obstructing or Impeding Officers,” § 2B1.1(a)(2) applies to property offenses.
    Montanez’s conduct was directed at law enforcement and, as he admitted, was
    intended to obstruct, impede, and interfere with their official duties. That matches
    neatly with § 2A2.4(a) and the other obstruction offenses it expressly references.
    And, unlike § 2A2.4(a), the potential applicability of § 2B1.1(a)(2) rests entirely on
    whether the offender’s conduct results in actual property damage. Property damage,
    however, is not an element of civil disorder—but acts to obstruct or impede law
    enforcement are. Based on the factual record and the statute at issue, the district
    court did not err in concluding that § 2A2.4(a) was the most analogous guideline.
    Accordingly, we affirm.
    ______________________________
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Document Info

Docket Number: 21-1855

Filed Date: 6/10/2022

Precedential Status: Precedential

Modified Date: 6/10/2022