US v. Ledarius Montgomery, No. 10-4589 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4589 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEDARIUS DANTE MONTGOMERY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:09-cr-00086-JAB-1) Submitted: March 24, 2011 Decided: April 13, 2011 Before MOTZ, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ledarius Dante Montgomery pled guilty, pursuant to a written plea agreement, to one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). The district court sentenced Montgomery to sixty-seven months imprisonment. Montgomery s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating his opinion that there are no meritorious issue for appeal but questioning whether the Montgomery s plea district before ensuring court it erred was in made accepting freely and voluntarily; whether the district court erred in enhancing the Guidelines range for possession of a stolen firearm; and whether the district court erred in imposing an unreasonable sentence. Montgomery did not file a pro Government declined to respond. se supplemental brief. The After our initial review of the case, we ordered supplemental briefing on the issue of whether the district court failed to adequately state its reasons for imposing its chosen sentence and, if so, whether its failure to do so constitutes harmless error. record in light of the Having fully considered the arguments, proferred by counsel, we affirm. Montgomery first knowing and voluntary. questions whether his plea was Because Montgomery did not move in the district court to withdraw his guilty plea, the Rule 11 hearing 2 United States v. Martinez, 277 is reviewed for plain error. F.3d 517, 525-26 (4th Cir. 2002). To establish plain error, Montgomery must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. States v. Massenburg, 564 F.3d 337, (reviewing unpreserved Rule 11 error). 342-43 (4th United Cir. 2009) The decision to correct the error lies within [this Court s] discretion, and [the Court] exercise[s] that discretion only if the error seriously affects the fairness, proceedings. integrity or public reputation of judicial Id. at 343 (internal quotation marks omitted). After reviewing the record, we conclude that the district court complied with the mandates of Rule 11 and that Montgomery s plea was knowingly and voluntarily made and supported by an adequate factual basis. Next, Montgomery questions whether the district court erred in enhancing the Guidelines range for possession of a stolen firearm even though there was no evidence Montgomery knew the weapon was stolen. The Guidelines specifically provide that this enhancement applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen. USSG § 2K2.1 cmt. n.8(B). Accordingly, we conclude that the district err court did not enhancement. 3 in applying the two-level Counsel also questions whether the district court erred in relying on hearsay evidence in determining that the firearm was stolen. It is well-established that there is no bar to the use of hearsay at sentencing. . . . The trial court may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain. United States v. Alvarado Perez, 609 F.3d 609, 618 n.4 (4th Cir. 2010) (internal quotation marks and citation omitted). Therefore, the district court did not err in relying on hearsay evidence in applying the sentence enhancement to Montgomery. Lastly, counsel questions whether the district court erred in imposing an unreasonable sentence. This court reviews Montgomery s abuse-of-discretion standard. sentence under a deferential Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires the Court to ensure that the district court committed no significant procedural error, such as . . . improperly calculating . . . the Guidelines range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (internal quotation marks and citations omitted). The Court then considers the substantive reasonableness of the sentence, tak[ing] into account Gall, 552 U.S. at 51. sentence within a the totality of the circumstances. This court presumes on appeal that a properly calculated 4 Guidelines range is United States v. Allen, 491 F.3d 178, 193 (4th Cir. reasonable. 2007). In assessing a sentencing court s Guidelines applications, this court reviews its legal conclusions de novo and its factual findings for clear error. Allen, 446 F.3d 522, 527 (4th Cir. 2006). United States v. Procedural sentencing errors raised for the first time on appeal are reviewed for plain error. 2010). United States v. Lynn, 592 F.3d 572, 577 (4th Cir. Preserved claims are reviewed for abuse of discretion, and if the court finds abuse, reversal is required unless the court concludes the error was Id. harmless. at 576. Substantive reasonableness of the sentence is reviewed under an United States v. Carter, 564 F.3d abuse-of-discretion standard. 325, 328 (4th Cir. 2009). In calculate the opportunity 2007). the Guidelines to appropriate. Cir. sentencing, argue district range for and whatever court give should the sentence first parties they an deem United States v. Pauley, 511 F.3d 468, 473 (4th The district court should then consider the relevant § 3553(a) factors to determine whether they support the sentence requested by either party. Id. When rendering a sentence, the district court must make and place on the record an individualized assessment based on the particular facts of the case. Carter, 564 F.3d at 328, 330. 5 In explaining the chosen sentence, the sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decisionmaking authority, but when doing so the judge will not decides simply necessarily to require apply the lengthy explanation. Rita v. United States, 551 U.S. 338, 356 (2007). defendant presents nonfrivolous reasons for Guidelines, Where the imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Id. at 357. While a district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or discuss every factor on the record, particularly when the district court imposes a sentence within a properly calculated Guidelines range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). If this court determines that the district court abused its discretion, we then ascertain whether the error committed by the district court was harmless. We conclude that the district Id. court abused its discretion during the sentencing proceeding by failing to place on the record an individualized assessment of Montgomery. After receiving supplemental briefs from the parties on this issue, however, we conclude that although the district court erred in failing to place on the record an individualized explanation 6 addressing Montgomery s arguments, the Government has met its burden of showing the error was harmless. In addition, the length of the sentence imposed was not unreasonable. We thus conclude that the record reveals neither substantive sentencing error nor reversible procedural sentencing error. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. Accordingly, we affirm Montgomery s conviction and sentence. This court requires that counsel inform Montgomery, in writing, of the right to petition the Supreme Court of the United States for further review. If Montgomery requests that a petition be filed, believes but counsel that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Montgomery. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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