UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 district court erred in accepting
Montgomery’s plea before ensuring it was made 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 se supplemental brief. The
Government declined to respond. 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. Having fully considered the
record in light of the arguments, proferred by counsel, we
affirm.
Montgomery first questions whether his plea was
knowing and voluntary. Because Montgomery did not move in the
district court to withdraw his guilty plea, the Rule 11 hearing
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is reviewed for plain error. United States v. Martinez, 277
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.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(reviewing unpreserved Rule 11 error). “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, integrity or public reputation of judicial
proceedings.” 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 court did not err in applying the two-level
enhancement.
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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 sentence under a deferential abuse-of-discretion
standard. 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 the totality of the circumstances.”
Gall, 552 U.S. at 51. This court presumes on appeal that a
sentence within a properly calculated Guidelines range is
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reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
In assessing a sentencing court’s Guidelines
applications, this court reviews its legal conclusions de novo
and its factual findings for clear error. United States v.
Allen, 446 F.3d 522, 527 (4th Cir. 2006). Procedural sentencing
errors raised for the first time on appeal are reviewed for
plain error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010). Preserved claims are reviewed for abuse of discretion,
and if the court finds abuse, reversal is required unless the
court concludes the error was harmless. Id. at 576.
Substantive reasonableness of the sentence is reviewed under an
abuse-of-discretion standard. United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009).
In sentencing, the district court should first
calculate the Guidelines range and give the parties an
opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). 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.
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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 the judge decides simply to apply the Guidelines,
“doing so will not necessarily require lengthy explanation.”
Rita v. United States, 551 U.S. 338, 356 (2007). Where the
defendant “presents nonfrivolous reasons for 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. Id.
We conclude that the district 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
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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, but counsel believes 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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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