Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2007

USA v. Montgomery
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1638




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Recommended Citation
"USA v. Montgomery" (2007). 2007 Decisions. Paper 1360.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1360


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                                              NOT PRECEDENTIAL

  IN THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               _______________

                   No. 05-1638
                ________________

         UNITED STATES OF AMERICA


                           v.

        TYREE LAJUAN MONTGOMERY,

                        Appellant
                ________________

   On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. No. 03-cr-00565)
    District Judge: Honorable Mary Little Cooper
                   _______________

     Submitted Under Third Circuit LAR 34.1(a)
                 March 27, 2007

Before: FISHER, JORDAN and ROTH, Circuit Judges.

                (Filed: April 4, 2007)
                 _______________

            OPINION OF THE COURT
                _______________
JORDAN, Circuit Judge.

       Tyree Montgomery pleaded guilty to one count of possession with intent to

distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2.

He appeals his criminal sentence of 130 months as unreasonable. See United States v.

Cooper, 

, 326-28 (3d Cir. 2006). The District Court had subject matter

jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the sentence

for reasonableness pursuant to 18 U.S.C. § 3742(a)(1).1 

. For the

following reasons, we will affirm the sentence embodied in the judgment and

commitment order.

       In assessing the reasonableness of a sentence, we must determine whether the

District Court “exercised its discretion by considering the relevant factors,” which are set

forth in 18 U.S.C. § 3553(a). 

. “The record must demonstrate

the trial court gave meaningful consideration to the § 3553(a) factors.” 

Court, however, is not required to “discuss and make findings as to each of the § 3553(a)

factors if the record makes clear the court took the factors into account in sentencing.”

the judgment and commitment order in this case was entered on January 31,
2005 and Montgomery’s notice of appeal was filed more than ten days later, on February
28, 2005, the District Court granted Montgomery’s motion for extension of time to file
his appeal. The notice is therefore timely pursuant to Federal Rule of Appellate
Procedure 4(b)(4).

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       In addition to making sure that the District Court considered the factors, “we must

also ascertain whether those factors were reasonably applied to the circumstances of the

case.” 

We give deference to the District Court’s determination, “the trial court

being in the best position to determine the appropriate sentence in light of the particular

circumstances of the case.” 

that, in determining his sentence, the District Court failed to

give meaningful consideration to the first § 3553(a) factor: “the nature and circumstances

of the offense and the history and characteristics of the defendant.” According to

Montgomery, the District Court failed to consider the circumstances of his childhood,

including his parents’ drug use.

       The record, however, demonstrates that the District Court did consider those

circumstances. During the sentencing hearing, after Montgomery described his past, the

Court stated: “I can see the circumstances very clearly the way that you describe. Very

hard.” Also, after Montgomery’s lawyer agreed that it was not necessary to repeat the §

3553(a) factors, the Court stated that “the nature and circumstances of this offense and the

history and characteristics of this defendant are set forth in full detail in the presentence

report ... .” That report, referenced by the Court, included the information that

Montgomery contends was ignored. Thus, the District Court did consider that

information. Montgomery’s argument to the contrary is simply inconsistent with the

record.



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       Montgomery also argues that the District Court failed to reasonably apply the §

3553(a) factors in deciding whether to mitigate Montgomery’s sentence in light of the

length of time between the instant offense and the two prior convictions that served as the

basis for his being classified as a career offender. At his sentencing, Montgomery moved

both for a downward departure under the Guidelines and for mitigation of the sentence in

light of United States v. Booker, 

(2005). Here, Montgomery cites to the

Court’s discussion of the downward departure under the Sentencing Guidelines as

evidence that the Court relied too heavily on the Guidelines in deciding not to mitigate his

sentence pursuant to the § 3553(a) factors.

       Again, however, the record shows that the District Court considered those factors,

including the need for the sentence to reflect the seriousness of the offense, to afford

adequate deterrence, to protect the public, and to provide educational or vocational

training. See 18 U.S.C. § 3553(a)(2). The Court also considered the Sentencing

Guidelines as required by § 3553(a)(4), while recognizing that the guidelines are

advisory. The Court explained the sentence as follows:

               I am doing this under the advisory status of the guidelines with
       careful, careful reference to the structure and terms of the guidelines that
       apply to Mr. Montgomery.
               I am, in fact, not granting a downward departure or a downward
       variance on the first ground that defendant claimed, namely overstatement
       of criminal history, because I do not believe that this is an appropriate case
       on its facts for a downward movement from the guideline range on that
       ground.
               ....



                                              4
               I have carefully considered whether to impose a sentence which is
       lower than that which I have described, but I think that the policy reflected
       in the guideline section pertaining to the possibility of a departure for over
       representation of criminal history is not met here... .
               ....
               . . . [A]s exhaustively detailed in the presentence investigation report,
       as well as the government’s sentencing memorandum, the two predicate
       convictions ... are not by any means the limit of Mr. Montgomery’s total
       criminal past. In fact, it can be summarized as an unbroken record of
       offenses of increasing degrees of severity ... .
               ....
               Each of those convictions carry with it escalating penalties of
       incarceration, but unfortunately they were not sufficient to deter him from
       returning to this lifestyle of drugs and actual or threatened violence on each
       occasion when he regained his freedom.
               ....
               The goals of sentencing are represented here in the need for this
       sentence to reflect the seriousness of the offense ... . And most importantly,
       to afford adequate deterrence of Mr. Montgomery and to incapacitate Mr.
       Montgomery for a sufficient time to protect the public from further crimes .
       ...
               I’d note that it appears that he has his GED high school diploma, but
       has not taken the opportunity to develop any vocational skills. That at least
       he can accomplish while in federal custody.
               As I say, this sentence is imposed under the advisory basis of the
       guidelines with due reference to the structure and terms of the guidelines as
       they have been found to address the facts of this case.

That record shows that the District Court relied on the applicable § 3553(a) factors and

was not treating the Sentencing Guidelines as mandatory. Considering the deference

given to the District Court’s determination of an appropriate sentence under the

circumstances, we conclude that the sentence is reasonable in this case.

       For the foregoing reasons, we will affirm the judgment and commitment order

entered by the District Court.



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