United States v. John Montgomery

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0126p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 17-6082 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. Decided and Filed: June 28, 2018 Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges. _________________ COUNSEL 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. _________________ 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. No. 17-6082 United States v. Montgomery Page 2 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 ...

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