United States v. Lamont Montgomery , 329 F. App'x 44 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3280
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Lamont Montgomery, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 13, 2009
Filed: May 15, 2009
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Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Lamont Montgomery pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Montgomery to
120 months' imprisonment, the statutory maximum under 18 U.S.C. § 924(a)(2). On
appeal, Montgomery argues that the district court erred by failing to require the United
States to prove the facts underlying his sentencing enhancements by a preponderance
of the evidence and by applying sentencing enhancements that had a "disproportionate
1
The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
impact" on his sentence. We reject Montgomery's arguments and affirm the judgment
of the district court.
I. Background
In his plea agreement, Montgomery stipulated that the Government would
prove the following facts beyond a reasonable doubt:
On March 6, 2008, the St. Louis Metropolitan Police Department
received a call for a just stolen red Ford Mustang. Within a few
minutes[,] an officer spotted the Mustang and started to follow the
vehicle. A pursuit began[,] resulting in the Mustang crashing in the 1600
block of Hodiamont. The defendant, the driver of the Mustang, exited
and began running. The officer maintained pursuit still in his police
vehicle. When he spotted the defendant, the officer exited his vehicle and
the defendant fired several shots at him. The officer fell to the ground[,]
and the defendant approached him and continued to fire at the officer[.]
At this point[,] other officers arrived on the scene and began to fire at the
defendant. At this time[,] the defendant jumped in a police car and drove
off. He crashed the police vehicle and again began running. He was
found hiding in a trash can[,] and[,] in a second trash can, the police
found the firearm. After his arrest, the defendant admitted the possession
of the firearm and shooting at the officer.
Montgomery's presentence investigation report (PSR) recommended the
application of U.S.S.G. § 2K2.1(b)(6), a four-level enhancement based on
Montgomery's possession of a firearm in connection with other felony offenses, and
U.S.S.G. § 2A2.1(a)(1), an enhancement to a base offense level of 33 because the
object of Montgomery's offense would have constituted first-degree murder. The PSR
recommended a three-level downward adjustment for acceptance of responsibility,
producing a total offense level of 30. With a criminal history category IV,
Montgomery's applicable Guidelines range was 135 to 168 months, reduced to the
statutory maximum of 120 months pursuant to U.S.S.G. § 5G1.1(a).
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Montgomery objected to the § 2K2.1(b)(6) and § 2A2.1(a)(1) enhancements on
the basis that he had not pleaded guilty to or been convicted of the charges underlying
the enhancements. At his sentencing hearing, Montgomery clarified that his objections
did not involve "the actual conduct" alleged in the PSR. The district court overruled
Montgomery's objections and sentenced him to 120 months' imprisonment followed
by two years of supervised release.
II. Discussion
Montgomery first argues that the Government failed to prove by a
preponderance of the evidence that he had committed the offenses underlying the
sentencing enhancements. But "[a] sentencing court may accept the facts in a PSR as
true unless the defendant objects to specific factual allegations." United States v.
Sorrells, 432 F.3d 836, 838 (8th Cir. 2005); see also Fed. R. Crim. P. 32(i)(3)(A)
(stating that a sentencing court "may accept any undisputed portion of the presentence
report as a finding of fact"). Montgomery did not object to any specific factual
allegations in the PSR, and he concedes that he had agreed that there was no need for
testimony at his sentencing hearing in light of the admissions in his plea agreement.
The district court was entitled to accept the facts in Montgomery's PSR as true, and
those facts support the application of the § 2K2.1(b)(6) and § 2A2.1(a)(1)
enhancements.
Montgomery next argues that the application of the sentencing enhancements
had a disproportionate impact on his sentence and thereby violated his due process
rights. "It is well-understood that generally a district court may rely on facts found by
a preponderance of the evidence to aid it at sentencing." United States v. Garth, 540
F.3d 766, 773 (8th Cir. 2008). "We have, however, said that there could be
circumstances where due process would require those facts that have an 'extremely
disproportionate' effect on a defendant's sentence to be found by a heightened
standard, although we have never required such a standard to be applied." Id. We have
"upheld a sentence based on facts found by a preponderance that have raised a
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sentencing range four-fold," United States v. Bradford, 499 F.3d 910, 920 (8th Cir.
2007) (citing United States v. Alvarez, 168 F.3d 1084, 1088 (8th Cir. 1999)), and the
sentencing enhancements applied by the district court did not have such a significant
impact on Montgomery's sentence. The district court's application of the sentencing
enhancements did not violate Montgomery's due process rights.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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