Case: 20-60058     Document: 00515584788         Page: 1     Date Filed: 09/30/2020




              United States Court of Appeals
                   for the Fifth Circuit                         United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                               September 30, 2020
                                No. 20-60058
                                                                   Lyle W. Cayce
                            consolidated with                           Clerk
                                No. 20-60061
                              Summary Calendar


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Russell Lawayne Montague,

                                                         Defendant—Appellant.


                  Appeals from the United States District Court
                    for the Southern District of Mississippi
                            USDC No. 3:04-CR-26-1
                            USDC No. 3:19-CR-231-1


   Before Jones, Barksdale, and Stewart, Circuit Judges.
   Per Curiam:*
          In these two consolidated appeals, Russell Lawayne Montague
   challenges:   the four consecutive, within-Sentencing Guidelines policy-


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60058      Document: 00515584788         Page: 2    Date Filed: 09/30/2020




                                    No. 20-60058
                                  c/w No. 20-60061

   statement sentences of 24-months’ imprisonment (a total of 96 months)
   imposed upon revocation of his supervised release, which was part of his
   sentence in 2005 for stealing a firearm moved in interstate commerce,
   receiving an unregistered firearm, being a felon in possession of a firearm,
   and using a firearm during a drug crime, in violation of 18 U.S.C. § 924(1),
   26 U.S.C. § 5861(d), 18 U.S.C. § 922(g)(1), and 18 U.S.C. § 924(c)(1); and
   the consecutive, within-Guidelines policy-statement sentence of 18-months’
   imprisonment imposed upon revocation of his supervised release, which was
   part of his sentence in 2011 for escape from custody, in violation of 18 U.S.C.
   § 751(a). He maintains: the district court erroneously found he violated the
   conditions of his supervised release (Violation 1 for violating an order of
   protection and Violation 2 for possessing a controlled substance; he does not
   contest two other violations); and his resultant 114-month sentence is
   substantively unreasonable. His claims fail.
          The decision to revoke supervised release is reviewed for abuse of
   discretion. United States v. McCormick, 

, 219 (5th Cir. 1995). A
   court may revoke supervised release if it “finds by a preponderance of the
   evidence that the defendant violated a condition of [the] supervised release”.
   18 U.S.C. § 3583(e)(3). The evidence, including testimony by Montague and
   his probation officer, demonstrates by a preponderance of evidence
   Montague committed the crimes underlying Violations 1 and 2. Accordingly,
   the district court did not abuse its discretion in revoking his terms of
   supervised release on those grounds. See 

.
          Revocation sentences are reviewed under the plainly-unreasonable
   standard of review. United States v. Miller, 

, 843 (5th Cir. 2011).
   The substantive reasonableness of a sentence imposed on revocation is
   subject to the same standards used to review whether an initial sentence is
   substantively reasonable. See United States v. Warren, 

, 332 (5th
   Cir. 2013) (citing cases addressing an initial sentence in reviewing a



                                         2
Case: 20-60058      Document: 00515584788          Page: 3     Date Filed: 09/30/2020




                                     No. 20-60058
                                   c/w No. 20-60061

   revocation sentence). “A sentence is substantively unreasonable if it (1) does
   not account for a factor that should have received significant weight, (2) gives
   significant weight to an irrelevant or improper factor, or (3) represents a clear
   error of judgment in balancing the sentencing factors.”

and citation omitted). A presumption of reasonableness
   applies to within-Guidelines policy-statement revocation sentences. See
   United States v. Lopez-Velasquez, 

, 809 (5th Cir. 2008).
          The revocation sentences are within the applicable Guidelines policy-
   statement ranges of imprisonment and are therefore presumptively
   reasonable.

The court considered Montague’s claims in favor of
   a sentence below the applicable Guidelines policy-statement ranges. The
   revocation sentences for both cases were based on the court’s consideration
   of the Guidelines policy-statement ranges, Montague’s prior criminal
   history, and the violation conduct. His challenge to the court’s weighing of
   the statutory sentencing factors does not overcome the presumption of
   reasonableness.