United States v. Montgomery , 280 F. App'x 291 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH LAMONT MONTGOMERY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, District
Judge. (2:07-cr-00058)
Submitted: May 29, 2008 Decided: June 3, 2008
Before TRAXLER, GREGORY and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tim C. Carrico, CARRICO LAW OFFICES, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Lamont Montgomery appeals his 168-month sentence
after pleading guilty to possession with intent to distribute
cocaine base, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.
2008). Montgomery contends the district court erred by failing to
consider a downward departure from his criminal history category.
Finding no error, we affirm.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). The appellate court must first ensure
that the district court committed no procedural errors, such as
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the 18 U.S.C.[A.] § 3553(a) [(West 2000 & Supp. 2008)] factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” Gall, 128 S. Ct. at
597. A sentencing court’s decision not to depart downward is not
reviewable on appeal unless the district court’s decision resulted
from a mistaken belief that it lacked the legal authority to
depart. United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008).
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In response to the pre-sentence report and the probation
officer’s recommendation that he be sentenced as a career offender,
Montgomery asserted that a variance was warranted based on the 18
U.S.C.A. § 3553(a) factors. At sentencing, Montgomery conceded the
calculation of his Guidelines range was correct, but contended that
his classification as a career offender overstated his criminal
history and that a sentence within the Guidelines range would be
unreasonable. While the district court considered and denied his
request for a variance sentence based on his criminal history,
Montgomery claims on appeal that the district court failed to
consider whether he was entitled to a downward departure on the
same ground, pursuant to U.S. Sentencing Guidelines Manual
§ 4A1.3(b)(3)(A) (2006). However, Montgomery’s objection to the
pre-sentence report noted only that he would request a variance
sentence, and during the sentencing hearing, Montgomery never asked
the court to consider a downward departure from his criminal
history category. See Fed. R. Crim. P. 32(i)(3)(A) (sentencing
court “may accept any undisputed portion of the presentence report
as a finding of fact”). Because Montgomery conceded that his
Guidelines range was correctly calculated and made no specific
request for the district court to consider a downward departure,
the district court committed no error in the determination of his
sentence.
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Accordingly, we affirm Montgomery’s sentence. 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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