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United States v. Montgomery

United States Court of Appeals, Sixth Circuit

June 28, 2018

United States of America, Plaintiff-Appellee,
v.
John Montgomery, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:13-cr-20124-1-Sheryl H. Lipman, District Judge.

         ON BRIEF:

          Randolph W. Alden, Tyrone J. Paylor, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.

          Marques T. Young, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

          Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.

          OPINION

          JULIA SMITH GIBBONS, Circuit Judge.

         John Montgomery was sentenced to 21 months' imprisonment for violating the conditions of his supervised release. He appeals, arguing that the district court improperly classified his simple possession charge as a Grade B rather than a Grade C violation. Because the text of the Sentencing Guidelines does not support Montgomery's argument, we affirm the sentence imposed by the district court.

         I.

         In 2013, Montgomery pled guilty to one count of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g). He was sentenced to 3 years' imprisonment followed by a 3-year period of supervised release, which commenced on December 1, 2015. On July 27, 2016, the government filed a Petition for Warrant or Summons for Offender under Supervision, alleging that Montgomery had committed two violations of his supervised release conditions: (1) he had been arrested and charged with domestic assault, and (2) he had "possessed/used a controlled substance (marijuana) that had not been prescribed for him by a physician." DE 34, Pet. for Warrant or Summons, Page ID 89. The government recommended that Montgomery's supervised release be revoked with a suggested imprisonment range of 21-27 months, based on its classification of his possession offense as a Grade B violation.

         Montgomery failed to arrive in court for his initial appearance and the district court ordered a warrant for his arrest. On August 31, 2016, the government amended its Petition, adding the following offenses: (1) driving with a suspended/revoked license, (2) theft of property less than $500, and (3) violation of bail conditions. Montgomery was arrested on September 6, 2016. He admitted to driving on a suspended/revoked license and to using a controlled substance, but he challenged the government's classification of his controlled substance offense as a Grade B violation.

         Montgomery argued that his simple possession conviction should have been classified as a Grade C rather than a Grade B violation because it is punishable by less than a year in prison under both state and federal law, even though 21 U.S.C. § 844 provides for an enhanced maximum sentence of two years if the defendant has a prior drug conviction. He claimed that Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and 21 U.S.C. § 851 required the government to charge him under 21 U.S.C. § 844 and enhance his sentence according to the procedures laid out in 21 U.S.C. § 851(a)(1) in order for the district court to take into account his prior convictions when considering the grade of his violation. Because Montgomery was not charged under § 844, he argued that the court could only look to the "basic" one-year sentence for simple possession when classifying his violation grade.

         The government relied on United States v. Crace, 207 F.3d 833 (6th Cir. 2000), to argue the probation officer properly classified Montgomery's simple possession conviction as a Grade B violation. At the sentencing hearing, the district court was persuaded by the government's reliance on Crace[1] and concluded that Montgomery's violation for possessing marijuana was a Grade B violation. It sentenced him to 21 months' imprisonment with no additional supervised release. Montgomery timely appealed.

         II.

         18 U.S.C. § 3583 governs the terms of supervised release and provides that the court may "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute" after considering certain sentencing factors laid out in 18 U.S.C. § 3553. 18 U.S.C. § 3583(e); see also United States v. Lewis, 498 F.3d 393, 398 (6th Cir. 2007). In considering the sentence imposed by the district court, appellate courts must apply "a deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) ("Sentences imposed following revocation ...


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