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.
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.
SMITH GIBBONS, Circuit Judge.
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.
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
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
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.
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 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.
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