X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Before OWEN, Chief Judge, and DAVIS and SOUTHWICK, Circuit Judges. PER CURIAM: Damion Donte Montgomery pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2) (Count 1); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 2); and distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 3). The district court sentenced Montgomery to 84 months on Count 1 and to concurrent 125-month sentences on Counts 2 and 3. The court ordered the sentence in Count 1 to be served concurrently with the sentences in Counts 2 and 3. Montgomery’s sentence was an upward variance from the guidelines range of 84 to 105 months. Montgomery argues on appeal that the district court misapplied U.S.S.G. § 4A1.1(e) because his prior Texas offenses for aggravated robbery were committed on the same day, and therefore he should not have received a fourth criminal history point. This court reviews the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Velasco, 855 F.3d 691, 693 (5th Cir. 2017). Montgomery received the fourth point under § 4A1.1(e) because the two aggravated robbery counts were treated as a single prior sentence under U.S.S.G. § 4A1.2(a)(2), and Montgomery did not receive criminal history points for the sentence imposed on the second count of conviction. In other words, it did not matter, for purposes of § 4A1.1(e), that the aggravated robberies occurred on the same day. His multiple prior sentences were properly treated as a single sentence because he was charged with two counts of aggravated robbery in the same indictment, pleaded guilty to each of those robberies in the same proceeding, and faced sentencing for both counts on the same day. See § 4A1.2(a)(2); see also United States v. Chan-Xool, 716 F. App’x 274, 277 (5th Cir. 2017). Accordingly, Montgomery’s claim that the district court erred in applying § 4A1.1(e) is without merit. His criminal history score was correctly calculated. He also argues that his above-guidelines sentence is substantively unreasonable because the district court gave significant weight to a 2018 charge for assault causing bodily injury of a family member that was still pending and another assault charge that was dismissed in 2019. A review of the district court’s statements at the sentencing hearing reflect that the court’s decision to impose an above-guidelines sentence was not based on Montgomery’s 2018 and 2019 assault charges. Rather, the court based its decision on a number of the 18 U.S.C. § 3553(a) factors, including not only Montgomery’s criminal history, but also the nature and circumstances of the offense and the need for the sentence imposed to afford adequate deterrence to criminal conduct and to protect the public. Considering the totality of the circumstances and giving appropriate deference to the district court’s consideration of the § 3553(a) factors, it cannot be said that the court abused its discretion in imposing Montgomery’s sentence. See United States v. Fraga, 704 F.3d 432, 439-40 (5th Cir. 2013). Based on the foregoing, the judgment of the district court is AFFIRMED.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 18, 2024 - September 19, 2024
Dallas, TX

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
October 15, 2024
Dallas, TX

The Texas Lawyer honors attorneys and judges who have made a remarkable difference in the legal profession in Texas.


Learn More
April 08, 2025 - April 09, 2025
Chicago, IL

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More

Health Law Associate CT Shipman is seeking an associate to join our national longstanding health law practice. Candidates must have t...


Apply Now ›

Shipman & Goodwin LLP is seeking a attorney to expand our national commercial real estate lending practice. Candidates should have at l...


Apply Now ›

Associate Attorney (Immigration Law) Position: Associate Attorney (Immigration Law) Location: Central NJ (Remote/Hybrid) Salary: $...


Apply Now ›
06/27/2024
The American Lawyer

Professional Announcement


View Announcement ›
06/21/2024
Daily Business Review

Full Page Announcement


View Announcement ›
06/14/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›