United States v. Elisha Montford , 458 F. App'x 300 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4409
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELISHA LEE MONTFORD, a/k/a X Easy, a/k/a Easy Montford,
a/k/a Lee Montford,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (4:10-cr-00071-FL-3)
Submitted: November 30, 2011 Decided: December 15, 2011
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Warren E. Gorman, Chevy Chase, Maryland, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elisha Lee Montford pled guilty, pursuant to a plea
agreement, to possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006). The district court found that Montford qualified for
sentencing pursuant to the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). Pursuant to the Government’s motion under
18 U.S.C. § 3553(e) (2006) and U.S. Sentencing Guidelines Manual
§ 5K1.1 (2010), the court sentenced Montford to 108 months in
prison, below the statutory mandatory minimum fifteen-year
sentence he faced as an armed career criminal. Montford timely
appealed.
Montford’s attorney filed a brief, pursuant to Anders
v. California, 386 U.S. 738 (1967), finding no meritorious
grounds for appeal but questioning whether the district court
properly designated Montford an armed career criminal. Montford
filed a pro se supplemental brief and an amended pro se
supplemental brief, 1 reiterating counsel’s argument and asserting
that his conviction violates the Equal Protection Clause. We
affirm Montford’s conviction and sentence.
1
We grant Montford’s motion to file his amended pro se
supplemental brief.
2
Whether a prior conviction qualifies as a predicate
offense is a question of statutory interpretation that we review
de novo. United States v. Harcum, 587 F.3d 219, 222 (4th Cir.
2009). To qualify for an enhanced sentence under the ACCA,
Montford must have “three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1).
The ACCA defines a serious drug offense to include “an offense
under State law, involving . . . distributing, or possessing
with intent to manufacture or distribute, a controlled substance
. . . , for which a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Montford had at least three qualifying predicate
offenses: a 1997 conviction for possession with intent to sell
and deliver cocaine, for which he received a 112- to 144-month
sentence under the current North Carolina Structured Sentencing
Act (“NCSSA”); and 1993 and 1995 convictions for selling and
delivering cocaine, for which he received eight-year prison
terms under the North Carolina Fair Sentencing Act, the
predecessor to North Carolina’s structured sentencing scheme.
When Montford was sentenced in 1993 and 1995, the maximum
3
sentence for his offenses was ten years’ imprisonment. 2 See N.C.
Gen. Stat. §§ 14-1.1(a)(8), 90-95(a)(1) and (b)(1), repealed by
NCSSA, 1993 N.C. Sess. Laws, ch. 538, § 2. Montford contends
that these convictions do not qualify as predicate offenses
under the ACCA because the law has changed in North Carolina and
these crimes no longer carry ten-year maximum prison terms.
However, as counsel concedes, the Supreme Court recently held
that, for purposes of determining whether a prior state drug-
trafficking conviction qualifies as a serious drug offense for
armed career criminal purposes, “the 'maximum term of
imprisonment' for a defendant’s prior state drug offense is the
maximum sentence applicable to his offense when he was convicted
of it.” McNeill v. United States, 131 S. Ct. 2218, 2220 (2011).
Thus, Montford had at least three predicate offenses and was
properly designated an armed career criminal. 3
2
Montford committed both offenses before October 1, 1994,
when the NCSSA became effective. Regardless of when sentencing
occurs, the NCSSA applies only to offenses committed on or after
its effective date. See McNeill v. United States, 131 S. Ct.
2218, 2224 (2011).
3
Because Montford had three qualifying predicate offenses,
we need not address whether Montford’s other prior drug offenses
would qualify as serious drug offenses under the ACCA.
4
In accordance with Anders, we have reviewed the entire
record and have found no meritorious grounds for appeal. 4
Accordingly, we affirm the criminal judgment. This court
requires that counsel inform Montford, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Montford requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Montford. 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
4
We conclude that Montford is not entitled to relief on his
pro se claims.
5