United States v. Montgomery ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4836
PAUL MONTGOMERY,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-27)
Submitted: September 25, 2001
Decided: October 24, 2001
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Timothy M. Sirk, Keyser, West Virginia, for Appellant. Patrick M.
Flatley, United States Attorney, Zelda E. Wesley, Assistant United
States Attorney, Clarksburg, 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Unpublished opinions are not binding precedent in this circuit.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:
Paul Montgomery was convicted pursuant to his guilty plea of dis-
tributing crack cocaine. On appeal, he alleges that the Government
breached the terms of the plea agreement.1 Finding no reversible
error, we affirm.
Montgomery was arrested following a controlled buy of crack
cocaine. His plea agreement with the Government provided in perti-
nent part that he would give grand jury and/or trial testimony as
requested and pay the $100 special assessment on or before the day
of sentencing. In exchange, the Government would agree to a reduc-
tion in Montgomery’s base offense level for acceptance of responsi-
bility and would recommend a sentence at the lower end of the
applicable guidelines range. However, if Montgomery failed to pay
the special assessment on time, obstructed justice, failed to cooperate
as promised, or violated any other provision of the agreement, the
Government was no longer bound to make the above sentencing rec-
ommendations.
At sentencing, the Government initially opposed a reduction for
acceptance of responsibility, argued for an enhancement for obstruc-
tion of justice, and asked for a sentence at the upper end of the guide-
lines range. The evidence showed that Montgomery failed to appear
when subpoenaed to testify before a grand jury,2 tested positive for
drug use while on pretrial release, could not be located for a period
of time while on pretrial release, and failed to pay the special assess-
ment at the time of sentencing. Although the Government later with-
drew its objection to acceptance of responsibility, and the district
court rejected the obstruction enhancement, the court nevertheless
sentenced Montgomery at the upper end of the guidelines range.
1
In light of our disposition of this case, we need not address Montgom-
ery’s concern that the Government might argue for an obstruction of jus-
tice enhancement upon remand.
2
Montgomery later appeared before another grand jury.
UNITED STATES v. MONTGOMERY 3
Because Montgomery did not object to his sentence or allege
breach at trial, we review his claim for plain error and find none.
United States v. Fant, 974 F.2d 559, 562 (4th Cir. 1992). The burden
is on Montgomery to show that the Government breached the terms
of the plea agreement, and he has failed to meet this burden. United
States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). Under the
express terms of the agreement, Montgomery’s failure to testify
before the grand jury, make his whereabouts known to the probation
office, and pay the special assessment on time relieved the Govern-
ment of its obligation to make a positive sentencing recommendation.
Accordingly, we affirm Montgomery’s conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court, and
argument would not aid the decisional process.
AFFIRMED