Filed: Nov. 30, 2004
Latest Update: Feb. 22, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 30 2004 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 04-6094 ANGELA MONTGOMERY, (D.C. No. 01-CR-327-L) (W.D. Oklahoma) Defendant-Appellant. ORDER AND JUDGMENT* Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determ
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 30 2004 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 04-6094 ANGELA MONTGOMERY, (D.C. No. 01-CR-327-L) (W.D. Oklahoma) Defendant-Appellant. ORDER AND JUDGMENT* Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determi..
More
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 30 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-6094
ANGELA MONTGOMERY, (D.C. No. 01-CR-327-L)
(W.D. Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Angela Montgomery appeals her 24-month sentence for violating the
terms of her supervised release. We exercise jurisdiction pursuant to 28 U.S.C. § 1291
and affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I.
In 1998, Montgomery pled guilty to bank fraud, in violation of 18 U.S.C. § 1344,
and was sentenced to a ten-month term of imprisonment and a five-year term of
supervised release. Montgomery completed her term of imprisonment and began her term
of supervised release on July 22, 1999. On February 20, 2004, the probation office filed a
“Petition for Warrant or Summons for Offender Under Supervision” seeking revocation
of Montgomery’s term of supervised release. The petition alleged that, between
December 2000 and January 2003, Montgomery opened eight different checking accounts
at five different financial institutions using a social security number not assigned to her
(and on some occasions using an alias) and then fraudulently obtained funds from each
institution, in violation of 18 U.S.C. §§ 1028 and 1344. The petition also alleged that
Montgomery (a) traveled from Oklahoma to Missouri without the permission of her
probation officer and obtained a Missouri nondriver license from the Missouri
Department of Revenue, and (b) submitted supervision reports to her probation officer
falsely claiming she did not have a checking account.
Based on evidence presented by the government during a hearing on the petition
on March 8, 2004, the district court found that Montgomery violated the conditions of her
supervised release as alleged in the petition. Specifically, the district court found the
evidence supported a finding that violations 1 through 8 as alleged in the petition
constituted violations of the bank fraud statute and were thus grade A violations as
2
defined by the Sentencing Guidelines. Accordingly, the district court revoked
Montgomery’s term of supervised release and sentenced her to a term of imprisonment of
24 months, to be followed by a 36-month term of supervised release.
II.
Montgomery contends the court erred in concluding she had committed a grade A
violation of her term of supervised release and, as a result, imposed a sentence that was
too lengthy. When a district court sentences a defendant to a term of imprisonment for
violating a condition of his or her supervised release, it must consider, among other
factors, the policy statements in Chapter 7 of the Sentencing Guidelines. See United
States v. Kelley, 359 F.3d 1302, 1304-05 (10th Cir. 2004) (citing 18 U.S.C. § 3553(a)).
“Those policy statements recommend a range of imprisonment upon revocation of
supervised release, and are advisory rather than mandatory in nature.”
Id. at 1305
(internal quotations omitted). Because a district court thus has considerable discretion in
determining the sentence to impose upon revocation, we review such sentences only to
determine whether they are “plainly unreasonable.”
Id. at 1304. Under this standard of
review, “we will not reverse if it can be determined from the record” that the sentence
was “reasoned and reasonable.”
Id. “In conducting this analysis, we review the district
court’s findings of fact for clear error and its legal interpretations of the Sentencing
Guidelines de novo.”
Id.
Chapter 7 of the Sentencing Guidelines divides violations of supervised release
3
into three “grades.” See U.S.S.G. § 7B1.1. Grade A violations include, among other
things, conduct that is punishable under federal, state, or local law by a term of
imprisonment exceeding twenty years. Grade B violations include conduct punishable
under federal, state, or local law by a term of imprisonment exceeding one year (except
crimes of violence, controlled substance offenses, and offenses involving possession of a
firearm or destructive device). Grade C violations include conduct punishable under
federal, state, or local law by a term of imprisonment of one year or less. In turn, Chapter
7 sets forth proposed, but non-binding, ranges of imprisonment based on a combination of
(a) the grade assigned to a defendant’s violation and (b) the defendant’s criminal history
category. See U.S.S.G. § 7B1.4.
Here, the district court concluded, based upon the evidence presented by the
government at the revocation hearing, that Montgomery’s violations constituted bank
fraud under federal law and thus were properly classified as grade A violations under
Chapter 7. In light of that classification and Montgomery’s criminal history category of
III, the district court noted that Chapter 7 provided a suggested range of imprisonment of
18 to 24 months. Ultimately, the district court imposed a 24-month term of imprisonment
on Montgomery.
Montgomery contends the evidence presented by the government during the
revocation hearing failed to establish that any of the financial institutions at issue were
federally insured, or acted to their detriment based on the false information she presented
4
to them. Thus, Montgomery contends, the district court should not have characterized her
violations as bank fraud or treated them as grade A violations under Chapter 7 of the
Sentencing Guidelines. Instead, she contends, the district court should have treated her
violations as grade B violations and sentenced her to a term of imprisonment of no more
than 14 months.
Federal bank fraud carries a maximum sentence of 30 years’ imprisonment and
thus qualifies as a grade A violation under Chapter 7. See 18 U.S.C. § 1344 (bank fraud
statute); U.S.S.G. § 7B1.1(a)(1) (defining grade A violations). The elements of federal
bank fraud are: (1) that the defendant knowingly executed or attempted to execute a
scheme (i) to defraud or (ii) to obtain property by means of false or fraudulent pretenses,
representations, or promises; (2) that he or she did so with the intent to defraud a financial
institution; and (3) that the financial institution was then federally insured. See United
States v. Akers, 215 F.3d 1089, 1100 (10th Cir. 2000).
After reviewing the record on appeal, we conclude the evidence presented by the
government at the revocation hearing was sufficient to allow the district court to find that
Montgomery committed federal bank fraud. It was essentially uncontroverted that
Montgomery opened checking accounts at five different financial institutions using a
social security number not assigned to her. Montgomery then deposited counterfeit
checks, or checks drawn on closed accounts, in the checking accounts. Lastly,
Montgomery withdrew funds from the checking accounts, causing losses to the five
5
financial institutions of at least $18,700. In sum, the government’s evidence established
that Montgomery knowingly engaged in a course of conduct designed to deceive all five
financial institutions into releasing money to her, with the intent to victimize the
institutions by exposing them to actual or potential loss. As for the “federally insured”
element of the crime (to which we note Montgomery raised no challenge at the revocation
hearing), the government introduced documents from which the district court reasonably
could have inferred that at least two of the five financial institutions victimized by
Montgomery (i.e., Bank of America and Commercial Federal Bank) were federally
insured.
Having concluded that the district court properly characterized Montgomery’s
violations as bank fraud and grade A violations under Chapter 7, we in turn conclude the
sentence imposed by the district court was both reasoned and reasonable.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
6
