United States v. Montgomery

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4286

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RODNEY MONTGOMERY,

Plaintiff - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (CR-96-458-WMN)

Submitted: April 18, 2005 Decided: May 31, 2005

Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Allen F. Loucks, United States Attorney, Jamie M.
Bennett, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Rodney Montgomery appeals the district court’s amended

judgment entered on remand resentencing him to 240 months’

imprisonment for conspiracy to distribute narcotics, in violation

of 21 U.S.C. § 846 (2000). Montgomery asserts the district court

erred by applying the first degree murder cross-reference found at

U.S. Sentencing Guidelines Manual § 2D1.1(d)(1) in calculating his

sentence. Montgomery further contends the sentence was in

violation of the rule announced in United States v. Booker, 125 S.

Ct. 738 (2005). We conclude the murder was a foreseeable

consequence of the drug conspiracy (hereinafter referred to as the

“Jones organization”) and find the district court’s application of

§ 2D1.1(d)(1) was not erroneous. We further find the sentence was

in violation of the rule announced in Booker and remand for

resentencing.

It is well-settled that a defendant may be held liable

for his co-conspirators’ acts performed during and in furtherance

of the conspiracy, as long as they could be foreseen or were a

natural consequence of the conspiracy. United States v.

Carrington, 301 F.3d 204, 211 (4th Cir. 2002). Co-conspirators of

a major drug ring such as the Jones organization can be charged

with knowledge that firearms and violence are a natural consequence

thereof, and it is reasonably foreseeable that such firearms may be

used to injure or even kill individuals in furtherance of the

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conspiracy. See United States v. Lomax, 293 F.3d 701, 706 (4th

Cir.) (stating that “drugs and guns all too often go hand in

hand”), cert. denied, 537 U.S. 1031 (2002); United States v.

Cummings, 937 F.2d 941, 945 (4th Cir. 1991) (stating “the illegal

drug industry is, to put it mildly, a dangerous, violent business.

When an individual conspires to take part in a . . . [large drug]

transaction . . ., it certainly is quite reasonable to assume that

a weapon of some kind would be carried.”) (citing United States v.

Diaz, 864 F.2d 544, 549 (7th Cir. 1988)). Moreover, Montgomery was

aware of the large amount of drugs and money filtered through the

Jones organization. Trial testimony revealed that $27,000 to

$28,000 was made on a “good day” from drugs supplied by Montgomery.

Thus, on these bases, it was reasonably foreseeable that violence,

including murder, might be used to protect the assets of the

organization.

In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

125 S. Ct. at 746, 750. The Court remedied the constitutional

violations by severing two statutory provisions, 18 U.S.C.A. §

3553(b)(1) (West Supp. 2004) (requiring sentencing courts to impose

a sentence within the applicable guideline range), and 18 U.S.C.A.

§ 3742(e) (West 2000 & Supp. 2004) (setting forth appellate

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standards of review for guideline issues), thereby making the

guidelines advisory. Booker, 125 S. Ct. at 756-57.

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2004), and impose a sentence. This remedial

scheme applies to any sentence imposed under the mandatory

sentencing guidelines, regardless of whether or not the sentence

expressly violated the Sixth Amendment. Booker, 125 S. Ct. at 769.

Because the minimum term of imprisonment under the

sentencing guidelines was greater than the statutory maximum

sentence, the district court was directed under U.S. Sentencing

Guidelines Manual § 5G1.1(a) to impose the statutory maximum

sentence. On remand, after considering the factors under

§ 3553(a), the district court may impose the same sentence. See,

e.g., United States v. Hughes, 401 F.3d 540, 556 and n.14 (4th Cir.

2005).

We affirm the conviction and find the district court did

not err in applying the cross-reference for murder. However,

because Montgomery’s sentence was enhanced based upon facts not

found by the jury beyond a reasonable doubt and the sentencing

guidelines were used as mandatory, we must vacate the sentence and

remand for resentencing consistent with the rule announced in

Booker. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED IN PART; VACATED
AND REMANDED IN PART

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