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United States v. Montgomery, 02-4661 (2003)

Court: Court of Appeals for the Fourth Circuit Number: 02-4661 Visitors: 12
Filed: Jun. 20, 2003
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 02-4661 JOHN THOMAS MONTGOMERY, Defendant-Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden II, District Judge. (CR-02-43) Submitted: June 13, 2002 Decided: June 20, 2003 Before WIDENER, WILKINSON, and WILLIAMS, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Matthew A. Vi
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                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-4661
JOHN THOMAS MONTGOMERY,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
               Charles H. Haden II, District Judge.
                            (CR-02-43)

                      Submitted: June 13, 2002

                      Decided: June 20, 2003

Before WIDENER, WILKINSON, and WILLIAMS, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P.,
Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                   UNITED STATES v. MONTGOMERY
                             OPINION

PER CURIAM:

   John Thomas Montgomery appeals the district court judgment sen-
tencing him to 325 months’ imprisonment for possession with intent
to distribute more than five grams of cocaine base, in violation of 21
U.S.C. § 841(a)(1) (2000). Montgomery alleges the Government vio-
lated his constitutional and statutory speedy trial rights. Montgomery
also challenges the presentence report’s ("PSR") imposition of a two-
point enhancement for possession of a firearm under U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2001) and a two-point adjustment
for his role in the offense under USSG § 3B1.1. Finding no reversible
error, we affirm.

   Montgomery argues the Government violated his constitutional and
statutory rights to a speedy trial because they did not indict him
within thirty days of his arrest. Montgomery pled guilty. A valid
guilty plea waives all nonjurisdictional defects, including deprivation
of constitutional rights occurring prior to his guilty plea. Tollett v.
Henderson, 
411 U.S. 258
, 266-67 (1973); United States v. Willis, 
992 F.2d 489
, 490 (4th Cir. 1993). We therefore find this claim is fore-
closed by Montgomery’s guilty plea.

   Montgomery argues that the district court erred in assessing a two-
level enhancement for possession of a dangerous weapon under
USSG § 2D1.1(b)(1). Although Montgomery initially objected to the
PSR’s imposition of the enhancement, he withdrew all pending objec-
tions at sentencing. This Court accordingly reviews for plain error.
See United States v. Olano, 
507 U.S. 725
, 732 (1993).

   Montgomery argues the PSR does not set forth a nexus between the
firearms and the narcotics. We have reviewed the PSR and its adden-
dum and find it related a confidential informant saw Montgomery
with cocaine base and firearms in an apartment from which Mont-
gomery conducted his drug distribution. We find Montgomery has not
demonstrated plain error.

  Montgomery argues the district court erred by imposing a two-
point enhancement under USSG § 3B1.1(c) for his role in the offense.
                    UNITED STATES v. MONTGOMERY                      3
A two-level enhancement is applied if the defendant was an orga-
nizer, leader, manager, or supervisor of any criminal activity that did
not involve five or more participants or was not otherwise extensive.
USSG § 3B1.1(c). The defendant’s role is determined by his relevant
conduct, not merely by the conduct underlying the offense of convic-
tion. See United States v. Fells, 
920 F.2d 1179
, 1183-84 (4th Cir.
1990). We review this issue for plain error. See 
Olano, 507 U.S. at 732
. Contrary to Montgomery’s contentions, the PSR’s statements
concerning Montgomery’s use of females to purchase and transport
drugs and hold cash for him shows more than a buyer-seller relation-
ship. Cf. United States v. Sayles, 
296 F.3d 219
, 224-27 (4th Cir.
2002). We find Montgomery has not demonstrated plain error.

   We therefore affirm Montgomery’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                          AFFIRMED

Source:  CourtListener

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